Getting Democracy Back into the Juryroom
A JUROR’S TRIAL TASK has never been easy and courts are responding with innovations. The 2005 ABA jury standards, juror notebooks, juror witness-questioning, and pre-deliberation discussions are being adopted nationally. The time has never been better for innovative thinking about a juror’s deliberative world.
Democracy within any juryroom is more illusion than reality. A jury’s foreperson has been found to seize more turns than other jurors. More alarming, forepersons are not selected for leadership skills.
A clutch of strangers yelled, cursed, rolled on the floor, vomited, whispered, embraced, sobbed, and invoked both God and necromancy. —Science professor, after his jury service
A socially awkward moment, forepersons are selected because they were the first to speak, once served on a jury, or by drawing names. In a 1998 study, when I asked citizens assembled for jury duty how they would select a leader, half suggested a voluntary or random process, ignoring traits or experience.
Not all jury seats are created equal. The foreperson is frequently selected from one of the two persons seated at the table’s ends. Further, table shape impacts discussion dynamics. Accessibility between seats is contaminated at a rectangular table. Participation is impacted by table shape: fewer contributions emerge from flank and corner positions and jurors tend to (inaccurately) conclude that those more visually accessible to them are like-minded.
What if the foreperson were eliminated? The Functional Theory of Leadership argues effective leadership happens when any group member performs a communication act that moves the group toward accomplishing its task. From a functional perspective, any juror (at any time) can help lead the jury into or out of opinion-jam. Gender, ethnicity, or prior life experiences impact styles of leadership. Many styles may be needed to help all issues get group consideration and all jurors participate.
Tension is high, nerves are frayed, and all minds are not sound. —Jury note to judge
Historically, jurors had little experience with formal decision-making groups. There is no compelling reason, today, to demand a foreperson—especially where the foreperson is not being selected based on a thoughtful consideration of a jury’s needs. Rarely will a jury know what type of leader they will need until argument emerges. No study demonstrates that a jury would flounder without a foreperson. No case describes compelling legal reasoning for a foreperson. It’s time for shared leadership, which tends to promote shared responsibility. All jurors can be encouraged to step up to the leadership plate during deliberations:
You are instructed that no formal leader need be selected. A variety of leadership styles may benefit this jury. All jurors should share their leadership skills throughout deliberations, in order to insure that issues are fairly discussed, evidence and law are fully considered, and all jurors have equal opportunities to speak and are appropriately listened to.
What if the table were eliminated? A rectangular table fosters juror clumping. (While it is tempting to consider King Arthur’s round table, it would provoke Goldilocks’ Dilemma: too large for some juries, too small for others, only occasionally just right.) Since a table for notetaking during deliberations is unnecessary, eliminating tables makes sense—jurors can form a chair circle, creating equal speaking/listening access to one another. (Should a writing surface be deemed essential, classroom chair-with-attached-writing-board would suffice.)
I have spent years studying deliberation tapes from real juries and saw inequality again and again. Deliberative waters get rough, yet structures that facilitate group equality throughout the process are available. Sua sponte or by motion, let’s put them on the jury reform table. Discussions (and verdicts) will be the richer for it.