In a few states the choice of who serves as jury foreperson lies with the judge rather than the jury panel members themselves. Maine, New Hampshire, South Carolina, and Arizona all allow a trial judge to choose the foreperson, while in Maryland, Massachusetts and Rhode Island a judge is required to choose the foreperson. A judge could use a number of factors in choosing a foreperson including the person’s demeanor during voir dire, how attentive he or she was during trial, the person who is sitting in a particular seat in the jury box, or perhaps how a person adds up on paper in demographic terms. A judge hand-picking someone to serve as foreperson can create concerns for the jurors and the parties involved. The juror picked by the judge could be viewed as having superior judgment to that of the remaining jurors. Subconsciously or not, the judge may pick a juror who seems to have views, mannerisms, or a background similar to his own and this could put a plaintiff or civil or criminal defendant at an advantage or disadvantage.
Judges from the states that employ the judge-selected foreperson method may argue that they choose a person based on attentiveness; however, judges have a number of other things to pay attention to during the trial, so their view of who is most focused may be slightly skewed. Another argument made in these states is that jury deliberations are more efficient if this step in the process is taken out of the jury’s hands. Based on the juror interviews performed by my classmates and myself, it never seemed like the choosing of the foreperson was a contentious, inefficient, or lengthy process. If the ability to democratically elect a foreperson is taken away from the jury panel, it makes the entire process a little more arbitrary, especially if the judge chooses someone just for where she is seated in the jury box. This arbitrariness could damage the integrity of the justice system, and in particular the jury deliberation process, by creating a less genuine and determined atmosphere in the jury room. Jurors may also perceive the person selected by the judge as superior and that his views should be given more deference and respect.
Electing a foreperson also gives the jurors a task to start with, as they may be confused or overwhelmed with what to do first. Andrew Horwitz, Criminal Defense clinic director and professor at Roger Williams University School of Law, argues that it could be counterproductive for a judge to choose the foreperson. He argues that if a foreperson is chosen without the support of the majority of the jury, it could be troublesome for deliberations. The vast majority of the states do not have judges select the foreperson. The pivotal role that a strong leader can play in the jury room—keeping the jury on track, determining how the deliberations will evolve, reigning in extremists, and communicating with the court—leads me to believe that the jurors in the room (and who have spent some amount of time around one another) are the ones in the best position to elect someone to lead them. A judge simply may not have enough information to determine who could do the best job of leading the jury in the deliberation process.
The civic and democratic process of jury duty may be further enhanced by the fact that jurors participate in their own little mini-election of sorts. People who have a say in who is elected, whether their view carries the day or not, may have less reason to question the reliability of the process and have more confidence in the system overall, than a group of twelve or six jurors who are given an indiscriminately chosen leader. Other jurors may feel less resentment about not being chosen if the foreperson is selected by the entire jury rather than not being selected by the judge from the group of twelve or six. In my view, the jury is in the best position to elect a foreperson and having them start with this small act in deliberations could improve the discussion process and ultimate decision-making ability overall.