concurring.
. Under any test reflecting even the most minimal respect for the values embodied in the sixth amendment, we would be compelled to invalidate this conviction. My concern, however, is with the particular constitutional standard which for 175 years has guided the lower courts, which we are obligated to apply today, and which renders constitutional trials taking place under circumstances only slightly less shocking than those presented in this case.
In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court, crystalizing earlier language from United States v. Burr, 25 F.Cas. 49, 50-51 (C.C.D.Va.1807) (No. 14,692g) (Marshall, C.J.); Reynolds v. United States, 98 U.S. 145, 155-156, 25 L.Ed. 244 (1878); Spies v. Illinois, 123 U.S. 131, 179-80, 8 S.Ct. 21, 30-31, 31 L.Ed. 80 (1887), and Holt v. United States, 218 U.S. 245, 248, 31 S.Ct. 2, 4, 54 L.Ed. 1021 (1910), established that it is permissible to empanel a jury composed of 12 persons, all of whom have a preconceived opinion that the defendant is guilty, as long as each promises to “lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 723, 81 S.Ct. at 1643. Accord Murphy v. Florida, 421 U.S. 794, 95 S.Ct. *9732031, 44 L.Ed.2d 589 (1975); Martin v. Warden, 653 F.2d 799 (3d Cir.1981), cert. denied, 454 U.S. 1151, 102 S.Ct. 1018, 71 L.Ed.2d 306 (1982).
According to the Irvin Court: “[T]o hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.” Irvin, 366 U.S. at 723, 81 S.Ct. at 1643. I cannot see why it is “impossible” to obtain jurors who do not begin with a bias. The test I suggest would not disqualify a juror merely because he has been exposed to pretrial publicity; rather, only those who represent that they have formed an opinion — irrespective of the degree of its fixation — must be excluded automatically from jury participation.
There can be but two possible explanations for the Irvin standard. The first is that it presumes to be meaningful: that a promise to lay aside an opinion, for example, that an accused high school teacher brutally killed one of his own students is either believable or enforceable. Definitive refutation of this precept as a psychological matter is, of course, beyond my capabilities, but I would venture that no one of us would want to gamble our freedom on the ability of a person to erase a preformed opinion as to guilt.1 Moreover, even if such self-imposed amnesia is possible as a cognitive event, surely its prediction is not reliable — that is, we cannot expect a person to know with any degree of accuracy at the time of voir dire whether or not he will be able to lay aside an opinion, however desirous he is of achieving that end. I see no reason to subject our jury system to the hazards of guesswork, particularly where the alternative is so easily achieved. Thus, I reject the Irvin standard as a means to insure impartial jurors.2
*974The second conceivable rationale for the Irvin test is that it is a practical necessity, without which the empanelling of juries would be impossible. I simply refuse to believe that in a land’ as populous as ours, where potential jurors abound, the only way to assemble a group of 12 impartial persons is to allow those with advance opinions to sit as long as they give a proper incantation of their ability to lay aside those opinions. If a jury cannot be selected without resort to persons with preformed views of a defendant’s guilt, it should be a simple matter to transfer the case to another county. There is simply no societal interest advanced by seating a juror who has openly stated that he has a view concerning the defendant’s guilt, notwithstanding that it can be “laid aside.”
The vulnerability of the Irvin “laying aside” standard is only heightened where attempts to temper its potentially devastating consequences for a criminal defendant are examined. The Murphy Court pointed out that,
[T]he juror’s assurances that he is equal to this task Paying aside prior opinion] cannot be dispositive of the accused’s rights, and it remains open to the defendant to demonstrate “the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality.”
Murphy, 421 U.S. at 800, 95 S.Ct. at 2036 (quoting Irvin, 366 U.S. at 723, 81 S.Ct. at 1643). I am at a loss to understand how a defendant would ever be able to demonstrate that despite a venireman’s assurance that he is able to lay aside a preconception of defendant’s guilt, there actually exists in the potential juror’s mind a “fixed” opinion which cahnot be extinguished.
My view of the proper standard by which to measure the propriety of seating a particular juror does away with the distinction between opinions that are “fixed” and those that are something less so, as a spectral analysis empty of meaning. A person with any opinion going to the issue of a defendant’s guilt is simply unfit to serve on a jury. It is incredible to me that anyone would want to take the contrary view. Further, in a highly publicized case, I would discredit the denial of preconceived opinions where a significant percentage of those polled state that they hold opinions concerning the defendant. While the Court has recognized that veniremen prejudice may be presumed in the face of protestations to the contrary where most of the other prospective jurors admit to a disqualifying bias, compare Irvin, 366 U.S. at 727, 81 S.Ct. at 1645 (nearly 90 percent of veniremen have some opinion regarding defendant’s guilt; prejudice in remainder presumed), with Murphy, 421 U.S. at 802, 95 S.Ct. at 2037 (roughly 26 percent of veniremen have an opinion; no presumption regarding remainder), I would not allow any jury to be empanelled where more than 25 percent of the veniremen state that they hold an opinion concerning the defendant’s guilt. Where over one quarter of those polled indicate such bias, I have grave doubts as to the sincerity of *975representations of impartiality by others in the community.
It has long been the foundation of our legal system that, “[N]o man’s life, liberty or property be forfeited as criminal punishment for violation of that law until there ha[s] been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.” Chambers v. Florida, 309 U.S. 227, 236-37, 60 S.Ct. 472, 476-477, 84 L.Ed. 716 (1940). I do not see how we can live by this ideal while continuing to apply the Irvin test. I would adopt a different standard, originating at the confluence.of sense and simplicity, which would prevent any person from entering the jury box and becoming a. judge of the facts if he has any preconceived view of the merits of the case.
. Commentators with psychological training have come to the same conclusion. See, e.g., Comment, Fair Trial v. Free Press: The Psychological Effect of Pre-Trial Publicity on the Juror’s Ability to be Impartial; A Plea for Reform, 38 S.Cal.L.Rev. 672, 682 & nn. 53, 54 (1965); see also Stanga, Jr., Judicial Protection of the Criminal Defendant Against Adverse Press Coverage, 13 Wm. & Mary L.Rev. 1, 5 & n. 23 (1971).
. The voir dire at the celebrated trial of “Boss” Tweed over 100 years ago provides a wonderful example of the strain imposed upon any notion of “impartiality” by the “laying aside” standard. Various veniremen, all of whom indicated a preformed opinion of some degree, revealed a variety of strategies by which they felt they could rid themselves of their initial partiality. In listening to their voices, we must decide if it makes sense to continue the same dialogues today.
One venireman suggests that he is able to lay aside his opinion as a matter of duty:
Q. If you were to go into that jury box, would you require any evidence whatever to remove the impression that you now have?
A. Not as a juryman; no, sir.
Q. Your belief as a juryman is a different thing from your belief as a man?
A. If any one should come up in the street and tell me Mr. Tweed was an innocent man, I should not at once believe it unless he gave me some proof to the contrary; but in the jury-box I go in there free from any prejudice as a juryman. I think that is the duty of the juryman, that it ought not to require any evidence at all to remove any impression. That is what I intended to convey in my answer to the judge.
Record of People v. Tweed, 50 How.Pr. 262 (N.Y.Sup.Ct.1876) at 104. Another admits that the process is unpredictable:
Q. If you were to go into the trial as a juror would you not carry that same [preformed] impression into the jury-box?
A. I think if I was called upon to serve as a juror I could free my mind from all prejudice or impressions and act impartially; that is my belief.
Q. Have you ever tested that belief in a like case?
A. Never, sir.
Q. It would be an experiment on your part?
A. Certainly it would
Id. at 142 — 43. Another views the process as one of degrees of belief:
The Court — I would like to have you give in your own way and in your own language the condition of your mind in regard to Mr. Tweed or his dealings with the city.
The Witness — My view is this: I read the newspaper like everybody else; I have heard the proceedings, and of the charges against Mr. Tweed like everybody else, I have certain superficial information; on that superficial information I have formed an opinion; that is all I have had to do, and all I have seen the necessity of doing; I have never looked into the case with any degree of particularity; I have never examined the evidence as a lawyer would have examined it. I have formed an opinion; I do not consider that I have formed what I call a decided opinion, because *974I have not looked into it so thoroughly as to entitle me to have that opinion, but I have given it this general superficial examination. I am now here and am called upon this struck jury, and if I am to serve as juryman, I believe that I can act conscientiously and fairly for Tweed and fairly for the County. I have been asked the question whether I would prefer that Tweed should succeed or the County, and I have answered that I should prefer that the County should succeed. I do not mean that I would have any bias which would make me decide against Tweed, for the County or against the County for Tweed; 1 would be prepared to decide according to the evidence.
Id. at 94-95. Another describes the process as a function of will:
Q. But could you, no matter what form of oath were put to you, enter upon the trial without having the impression upon your mind that Mr. Tweed has been guilty of those frauds?
A. I should try.
Q. Could you succeed?
A. I think so.
Q. You think that you could forget what you now believe?
A. I think I could dismiss it from my mind; forget it, no.
Id. at 204.
All of these veniremen were seated as competent jurors.