Mixed Signals and Subtle Cues: Jury Independence and Judicial Appointment of the Jury Foreperson

Andrew Horwitz, Roger Williams University School of Law

Abstract

In many jurisdictions across the United States, both state and federal, it appears to be common practice for the trial judge in a criminal case to appoint the foreperson of the jury in a non-random fashion. Unlike the much more traditional practice of allowing the jury to elect its own foreperson, judicial appointment of the foreperson is fraught with a variety of serious infirmities, many of them of constitutional magnitude. A substantial body of case law and literature - as well as common sense - tells us that anything that a trial judge says or does during a trial is likely to be perceived by all of the trial participants, including the jurors, as a reflection of the judge's personal views and opinions. The mere fact that the judge has appointed a particular juror to be foreperson has the potential to convey all sorts of messages to the remaining jurors and to the other trial participants, including that the judge thinks that this juror's judgment is superior to that of other jurors or that this juror's views are in accord with those of the judge. Beyond that set of problems is the issue of whether the trial judge, by appointing the foreperson, who in turn largely controls the dynamics of the jury deliberation process, has invaded the jury's right to choose its own leader and its own deliberation dynamics, thereby influencing the results.

This article discusses the pervasiveness of judicial appointment of the foreperson, some of the apparent justifications for the practice, and the legal argument that the judicial appointment of the foreperson violates the defendant's right to a trial by a fair and impartial jury.