The trial just ended. The jurors head back into the jury room
because they must. They know their
purpose: to determine whether this defendant did it. Some jurors feel confident about their vote—the
evidence was too strong to ignore. For
others, perhaps the evidence was too circumstantial to be sure. Doubt creeps in (just an inch), but the
jurors feel better knowing that they will now have a chance to discuss the
evidence with their fellow jurors.
Deliberations begin with an awkward
pause…then the foreman calls for a vote.
The jurors cannot remember his last name. He
speaks with authority. No one can think
of a reason not to listen to him, so the jurors vote. No consensus.
The foreman then begins the process of raising each piece of evidence
for discussion. When moving to new
topics, the foreman always tells everyone what he thinks, then opens the floor
for everyone else to speak. Some jurors
talk, some jurors do not. The foreman
makes some good points. The jury votes
again: Guilty.
How Forepersons Dominate Deliberations
A wide body of research indicates that
the above scenario accurately depicts a common dynamic between jurors and their
foreperson. Forepersons simply speak
more often than other jurors. Although the
foreperson’s role inherently demands that the foreperson provide procedural
instruction, forepersons still communicate their opinions about the facts twice
as often as other jurors. Further, forepersons
tend to speak first, which frames the entire discussion going forward.
When a
foreperson speaks first and more often than other jurors, that foreperson disproportionately
influences the jury. For example, studies
show a strong correlation between a foreperson’s pre-deliberation opinion and
the entire jury’s final vote. Our system
intentionally relies on a relatively large jury (of at least 6) because smaller juries achieve (a) poorer-quality deliberations; (b) less-accurate results; and
(c) a poorer cross-section of the community, which the U.S. Constitution demands
under the Sixth Amendment. If jurors do
not speak or otherwise participate, jurors may as well not be present, and the
jury becomes effectively smaller. When
the foreperson dominates deliberations, all the downsides of a smaller jury
reveal themselves.
Potential Solutions
We cannot simply abolish the
foreperson. Research shows that forepersons
(even ineffective ones) play a critical role in maintaining fair communication
and order during deliberations. Mock
juries without a foreperson tend to analyze each topic more narrowly, and tend
to spend too little time on each topic. Also,
in their defense, actual forepersons are not intentionally manipulative; they try
to be fair.
Instead of abolition, we should accept
that the presence of a foreperson will automatically trigger certain behaviors
in the jury, and courts should provide the jury with two instructions designed to
counteract those undesirable behaviors.
First, courts should inform jurors that the foreperson tends to have an
outsized influence; therefore, the jury should not necessarily select the
richest or most aggressive person. Instead,
the jury should select the most balanced person who can most effectively
organize the discussion. Such an
instruction should help jurors put more thought into their decision. Second, courts should make clear that the
foreperson is not the boss, therefore other jurors should not feel intimidated
by that person. If a juror wants to say
something, that juror needs to know that he/she can say it, even if the
foreperson changes the topic or gives someone else the floor. Although some conflict may ensue when jurors disregard
the foreperson’s instructions, our system includes so many jurors for a
reason. They are not meant to always get
along. Although courts could take a wide
range of actions to diminish a foreperson’s unusually powerful influence, these
two simple instructions could heavily improve the quality of juror
participation and jury deliberation as a whole.
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