Foreperson and other Leaders
Brad Bradshaw, Ph.D.
Although the typical jury has
twelve members, cases are generally decided by a small sub-set of those twelve
people. We see it time and time again in mock trial deliberations where three
or four individuals account for as much as 90% of the conversation. This
underscores the importance of identifying unfavorable jurors who are likely to
control the deliberation process.
Jurors who take
charge during deliberations are typically leaders in other aspects of life as
well. They usually have elevated status within the group (either real or
artificial) and they get that status from things such as advanced degrees,
having a management position at work, or even being a local celebrity of some
sort (e.g., TV news anchor or owning a well-known business). They may also have
a life experience, such as prior jury service (especially if he was the
foreperson) or employment in a field related to the case. In the eyes of the
other jurors, that experience makes the individual somehow more qualified to
serve as foreperson. The foreperson is usually one of these natural leaders.
When the jury
retires to the jury room for deliberations, more often than not, the foreperson
is selected in one of two ways. He will either, 1) sit at the head of the
table, or 2) be the person that says, “Well, I guess we need to pick a
foreperson.” This happens so frequently during mock trial deliberations that we
know it does not happen by chance. Either way he is probably an outspoken
individual who is willing to assume the leadership role. Forepersons are also
disproportionately male. In Nashville-Davidson County white men only account
for roughly 30% of the jury pool (40% white females and 30% minorities) but are
“selected” as foreperson in approximately 75% of cases. Forepersons also tend
to be at least the average age within the group, and usually a bit older than
average.
Based on post-trial interviews we
also know that the length of a trial can influence who will be selected as
foreperson. In a short trial (e.g., two days) there is a greater likelihood
that the person with the strongest personality will serve as foreperson. He
will speak first at the beginning of deliberations and the other jurors will
let him take charge to avoid conflict (some jurors even feel a sense of relief
that someone else has stepped forward). Even if the other jurors would rather
have someone else serve as foreperson they do not know each other well enough to
stand up to the dominant personality. However in longer trials dominant
personalities become outcasts. Other jurors are more likely to form an
alliance, band together, and lobby for someone else to serve as foreperson.
That nominee is typically a mild-mannered person who has built a rapport with
the other jurors by being friendly, polite, and less opinionated. He will not
volunteer for the position but is usually willing to assume the role when urged
by the others. Jurors, especially soft-spoken jurors, are drawn to this person
and will nominate him to keep the less-likable person from taking control. For
short trials, if you want a particular individual to serve as foreperson the
conventional wisdom is to ask him several questions that highlight his qualifications
for the other jurors. (In longer trials they will figure it out on their own.)
The problem is that if you attract too much attention to that juror’s
qualifications, opposing counsel will probably send him home.
All that said, just because a juror
with a dominate personality is not selected as the foreperson that does not
mean he will sit quietly and let the other jurors determine the outcome of the
case. For mock trial research we almost always use more than one deliberating
group (sometimes two, usually three). It is not uncommon for these groups to
return very different verdicts, despite having viewed the exact same
presentation. When this happens it can almost always be traced back to a leader’s
opinion that was expressed in the first few minutes of deliberations. That
individual is able to dictate the path that the jury will take the same way an
attorney can shape jurors’ perception of the case during opening statements. If
that individual presents a fairly logical argument the other mock jurors may be
inclined to simply follow his lead. Support from even one other juror
drastically reduces the likelihood that different opinions will be voiced.
Psychologist Robert Cialdini calls this social validation, where correct
behavior in a group can be determined by the first person or two that speaks.
This demonstrates how problematic even one unfavorable juror can be.
Fortunately, the same mock trial
research that identifies this potential problem also provides information to
counter it. That is, knowing the arguments that an unfavorable juror could use
to persuade his fellow jurors gives us an opportunity to adjust our strategy
and arm favorable jurors with an effective counterargument. All it takes to
negate adverse social validation is for one favorable juror to voice
opposition. Once the other jurors know they will not be alone, they too will be
more likely to argue in your favor.
So how do you identify jurors who
will control the deliberation process? In addition to identifying unfavorable
jurors with de-selection questions (addressed in a previous article), voir dire
should be used to distinguish leaders from followers. Leadership qualities are
demonstrated in two ways: what a
juror says and how the juror says it.
For example, we already know that jurors who have leadership roles outside the
courthouse are more likely to lead the jury during deliberations. Therefore,
asking jurors about employment (i.e., specifically what they do, not just their
job titles), and what they do in their free time, will help determine whether
or not they are natural leaders. If a juror has a leadership position at work
or in a group like the PTA or homeowner association, there is a good chance
that the same person will assume a leadership role on the jury.
The other indicator comes from how the juror answers questions
throughout voir dire. Does the juror have a loud, confident voice? Does he make
eye contact? Does he raise his hand quickly or speak first when a question is
posed to the entire panel? Does he provide detailed, descriptive answers,
giving more information than what was asked? These are all characteristics of a
person who is going to take charge of deliberations. If a juror talks a lot
during voir dire it is likely that he will talk a lot during deliberations as
well. Therefore, if you cannot decide if a talkative juror is favorable or
unfavorable, it is wise to remove him with a peremptory challenge.
You can also learn a lot about
jurors by watching them interact with each other outside the jury box (e.g., in
the lobby during breaks). This is primarily helpful during voir dire, before
peremptory challenges have been exercised. Seeing how jurors interact with each
other can provide insight into how they will interact during deliberations. For
example, a person who keeps to himself during breaks is less likely to speak-up
during deliberations. When he does, his opinion will carry less weight because
he has not established rapport with the other jurors. If one of your favorable
jurors has befriended a juror that is neither favorable nor unfavorable, that
neutral juror becomes more valuable to you because there is a good chance he
will support your favorable juror during deliberations. Having a comrade
reduces the likelihood that your favorable juror will submit to the pressure of
the group.
Finally, by taking note of each
juror’s propensity to lead the group you can prioritize your list of strikes.
Once you have your list of unfavorable jurors you can arrange the list based on
who will do the most talking. That way, if you have more unfavorable jurors
than you have peremptory challenges, you will be more likely to strike the
jurors who will play a leadership role during deliberations.
