Jury Summons

Jury Summons

Saturday, February 29, 2020

A Guide, Not a Commander – Reining In the Foreman's Tendancy to Dominate


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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