Twelve New Castle County residents will determine the outcome of what could be the country’s most high-profile First Amendment case in decades.
Trial testimony will begin Monday in the $1.6 billion defamation lawsuit Dominion Voting Systems filed against Fox News and its parent company in Delaware Superior Court.
On Thursday, hundreds of Delawareans streamed into the New Castle County courthouse on King Street in Wilmington to be asked a series of questions aimed at determining whether they can evaluate evidence in the case in a fair and impartial manner – a process called voir dire.
BACKGROUND:Fox News sanctioned by Delaware judge for withholding evidence in $1.6B defamation trial
The voting technology company sued Fox in 2021 after the cable news network made false claims about its voting machines and its role in the outcome of the 2020 presidential election.
What will jurors have to decide in this trial?
One of the major questions jurors will have to decide is whether Fox committed “actual malice,” or the idea that Fox knowingly published false information about Dominion or recklessly disregarded information showing that the claims were not true.
Fox has denied all wrongdoing, saying its hosts were covering the most important news story of the day. Dominion claims Fox knowingly spread falsehoods to pander to its conservative base of customers.
This week, during pretrial hearings, Judge Eric Davis determined what questions will and will not be asked of potential jurors. The jurors are expected to hear testimony from many high-profile Fox News personalities and executives, including Fox chairman Rupert Murdoch and hosts Sean Hannity and Tucker Carlson.
How will the jury be selected?
Before addressing potential jurors Thursday morning, Davis told attorneys and reporters that the jury process will largely take place behind closed doors to protect jurors’ identities.
Intake forms filled out by potential jurors will also remain under seal because those forms will include identifying information. Davis told the court that state law gives him the ability to seal juror information, as well as conduct portions of the process behind closed doors.
“I am concerned about interference with jurors,” Davis said.
He noted the case has received attention from across the world and it is his job to make sure jurors remain “unaffected” by this, adding that he fears some “third party” could try to interfere with their work.
Before Thursday, the court summoned more than 1,000 individuals, noting jury duty could take weeks. Many of those potential jurors were able to apply for deferments because work or other circumstances would not allow them to serve for such a long proceeding.
Thursday’s process began with a pool of hundreds of potential jurors who live in New Castle County. The first process seeks to whittle that number to 36 people – which will allow attorneys for both sides to strike six potential jurors.
Potential jurors are being asked questions agreed to ahead of time by the attorneys and aimed at judging whether they can impartially review the evidence as jurors. Jurors who answer affirmatively to any of those questions are then questioned by the judge in a private room.
Once that screening process is complete, attorneys for each side will then have the opportunity to strike six potential jurors based on information the potential jurors included in intake forms.
Ultimately, 12 jurors will hear the evidence alongside 12 alternates that can fill in if jurors are lost to sickness or other circumstances during the course of what is scheduled to be a six-week trial.
Davis, the judge, wanted a dozen alternates in the event jurors have to drop out due to illness or other reasons. Earlier this week, he expected jury selection to continue until Friday.
What will be asked of the potential jurors?
During pretrial hearings, the judge and lawyers from both sides determined the dozens of questions that will be asked of possible jurors. Like any jury case, the questions largely deal with whether they have any personal connections to the case or witnesses.
The final list of questions being asked of potential jurors has not been made public. Preliminary lists that served as in-court debate points for the attorneys gave some insight into what is being asked. Leading up to Thursday, there wasn’t too much debate on the list of questions, with the judge having discretion on what is asked. Davis focused heavily on if jurors could be unbiased to both sides.
For example, it would be likely OK if a juror watches Fox News – as long as they say they can also be fair and impartial.
DOMINION V FOX:Jan. 6 insurrection not relevant in Fox defamation trial, Delaware judge rules
Davis steered away from any questions that could preview the case. Previewing questions, he said, is to find jurors who are partial, which is not the point of voir dire.
One example, proposed by Dominion, included: “If selected as a juror, you will hear that the Plaintiffs are seeking over a billion in damages. Do you feel that you would never award a billion in damages no matter what the Defendants are accused of doing?”
Davis didn’t like specific numbers being mentioned in questions. Dominion lawyers said they weren’t tied to a number being mentioned. The parties agreed to a question proposed by Fox:
“Even if the plaintiff proves its case, do you think there should be a limit or a cap on the amount of money you would award the plaintiff in this case?
Davis struck some questions proposed by Dominion lawyers. They related to if the person had or knew someone who had any connection to the Jan. 6 insurrection and if the person thought electronic voting machines are “unreliable or inaccurately record votes?”
A Fox lawyer suggested the question: “Do you avoid any Fox News programs?” But Davis didn’t find this necessary.
“I hate to break it to you,” the judge said, “I avoid all news programs.”
