(dissenting):
Since the decision in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824), it has been accepted without question that the failure of a jury to agree upon a verdict is a circumstance which does not bar a retrial. We need not, therefore, be concerned with what, in other cases, might be extraordinary circumstances justifying a mistrial.
The question here is narrow — was the trial judge justified in concluding that the jury would be unable to reach a verdict? An appellate court’s scope of review is restricted to determining only if the trial court abused its discretion. United States v. Goldstein, 479 F.2d 1061 (2d Cir. 1973); United States v. Brahm, 459 F.2d 546 (3d Cir. 1972).
Justice Story’s opinion in United States v. Perez, supra, while addressed to the subject of mistrials generally, did set out the guidelines for trial judges to follow in deciding whether a jury is deadlocked.
“They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, the court should be extremely careful how they interfere with any of the chances of life, in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rest, in this, as in other cases, upon the responsibility of the judges, under their oaths of offices.” 22 U.S. at 579, 6 L.Ed. 165.
IVEore recent cases discussing the broad problem of terminating a criminal trial before verdict have reaffirmed the discretion granted to trial judges. In Illi*1046nois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), reference was made to the “broad discretion” reserved to the trial judge. Citing Gori v. United States, 367 U.S. 364, 368, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1960), the Supréme Court said:
“Where, for reasons deemed compelling by the trial judge, who is bpst situated intelligently to make such\a decision, the ends of substantial justice cannot be attained without discontinuing with the trial, a mistrial may be declared . . .” 410 U.S. at 462, 93 S.Ct. at 1069.
In addressing the specific problem of a deadlocked jury, the ABA Standards on Criminal Justice, Trial by Jury § 5.4(c) states that the jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement. The commentary suggests that, in exercising his discretion, the trial judge may question the jurors and may weigh such considerations as the length of the deliberation, the length of the trial, and the nature and complexity of the case. See also United States v. See, 505 F.2d 845 (9th Cir. 1974); United States v. Goldstein, supra. The court must be careful also that it not force the jurors to continue deliberations if, as a result, the verdict becomes a product of coercion and exhaustion rather than reasoned judgment.1
The majority correctly states that no rigid application of mechanical formulae is proper to decide the case. However, we must review the record, cold and lifeless as it is, to see if it furnishes any help to us. No transcript can adequately convey all the nuances of the trial: how the evidence was presented, the atmosphere engendered by the adversary proceeding, and the visceral reaction of an experienced trial judge as he weighs the alternatives of further jury deliberation or the declaration of a mistrial. Despite this difficulty, however, my review of the record convinces me that there was no abuse of discretion.
The judge who presided over the second trial — the one which is really at issue here — specifically asked the foreman in open court and in the presence of all the jurors if there was any hope of arriving at a verdict and whether further deliberations would be fruitful. The replies were in the negative. Finally, the judge asked, “Do you believe that your positions are so adamant that you couldn’t possibly arrive at a unanimous verdict? Is that what you are telling me?” The foreman answered, “Yes Sir, I do believe that.”
We do not have the opportunity to see how the individual jurors reacted to those questions, but we may assume that there was no demonstrated disagreement with the foreman’s answers. Had there been, counsel for the defendant could have so indicated on the record. The experience of most trial judges is that jurors will correct a statement made by their spokesman which is contrary to their understanding. A poll would have made the record more complete, but I am unwilling to say that a failure to follow that procedure is a reversible omission.2 Moreover, I do not feel that the inquiry was suspect because it was initiated by the judge rather than by a communication from the jury.3
*1047The time spent in jury deliberation in this case does not reflect adversely upon the judge’s exercise of discretion. The trial began with a selection of a jury which took most of the court day on Wednesday, September 19, 1973, and continued with testimony through Thursday, Friday, and the following Monday, when the closing arguments were made. The judge’s charge took place on Tuesday morning, and the jury received the case at 10:37 A.M. The total time for presentation of the case was thus somewhat less than four days. The mistrial was declared on Tuesday evening at 5:50 P.M. The jury had waited in the courtroom for about 25 minutes for the answer to a question during the afternoon, and after making a deduction for that interval, the time spent in deliberation amounted to slightly less than 7 hours.
An authoritative work by Kalven and Zeisel, The American Jury (1966), reveals a correlation between the length of the trial and the time in which the jury may be expected to return a verdict or become deadlocked. The studies indicated that, on the average, cases in which the trial lasted 3 to 5 days produced verdicts in 3.7 hours. By contrast, trials of that length resulted in hung juries in 15 percent of the cases by the fourth hour of deliberation, and an additional 50 percent in the fifth to tenth hour.4 This empirical datum is not conclusive but does show that the time allotted for deliberation in the case under scrutiny is not inconsistent with determinations of hung juries in other cases.
The fact that the jury had been unable to agree after the first trial is an indication that this case, while not complex, was a close one and, hence, more apt to result in a deadlock. See The American Jury, supra, at 457. The principal problem was one of identification of the defendant, an area where viewpoints may solidify in a comparative short time and where extended deliberation may prove of little value in resolving conflicting positions.
To justify a reversal, the record must demonstrate that the trial judge abused his discretion.5 I do not believe that the petitioner has met that burden. No one can ever be certain that the jury would ultimately have reached agreement. The trial judge, the man on the scene, thought that there would be no verdict, and there is enough in the record to support his view. I will not substitute my judgment for his, based as it was on more knowledge of the circumstances than I will ever have.
I would affirm.
. This requirement, of course, is equally for the benefit of the defendant and the prosecution.
. After the jury was discharged, defense counsel noted his objection. While not required, it would be better practice for the judge to consult with counsel before finally deciding to order a mistrial. While the defense lawyer understandably may object after the fact when there is nothing to lose by doing so, the response may be different if the option of continued deliberation is still available.
. United States ex rel. Russo v. Superior Court, 483 F.2d 7 (3d Cir. 1973), is distinguishable from the case sub judice in several significant respects. It did not involve a deadlock and there was an indication that the jury might reach a verdict. Nevertheless, a mistrial was declared sua sponte for the cited reason of jury exhaustion although no juror had complained and there was no record to support that conclusion.
. The American Jury, supra, at 458, 459. I make no attempt to canvass elapsed time in reported cases because the variables in individual trials play so large a part. See, however, the sampling in United States v. See, supra.
. Although 1 question the wisdom of the prosecution in ordering a third trial, that does not justify a finding of a constitutional infirmity in the declaration of a mistrial.