Twelve New Castle County residents will determine the outcome of what could be the country’s most high-profile First Amendment case in decades.
Monday will see the completion of jury selection and start of trial testimony 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 this 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 step sought to whittle that number to 36 people.
Potential jurors were 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.
That screening process is complete and attorneys for each side will have the opportunity to strike six potential jurors based on information the potential jurors included in intake forms starting Monday.
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. Attorneys for Fox previously objected to that. Typically, there are six alternates seated alongside a 12-person jury in Delaware.
On Thursday afternoon, Davis told the parties that because of the pandemic and the potential for jurors to drop out during the long, six-week proceeding, he was overriding Fox objections and will seat 12 alternates.
Davis told the attorneys Thursday afternoon that they had a sufficient pool of potential jurors to finalize selection and that the court would finish the process by allowing attorneys their strikes Monday before opening statements.
What was 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 list includes questions about potential jurors’ news consumption habits like whether they watch Fox News. The list also includes questions regarding whether potential jurors have ever volunteered at a polling place or served as an election judge.
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 acceptable 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.”
This question ultimately turned into: “Do you avoid any Fox News programs, on television or any other social media, and, if so, would this affect your ability to be fair and impartial?”
Prospective jurors were asked if they “personally knew or had an opinion” of dozens of Fox News hosts and employees, including Maria Bartiromo, Tucker Carlson, Lou Dobbs, Steve Doocy and Laura Ingraham.
They were also asked a similar question about Mike Lindell, Rudy Giuliani and Sidney Powell, all of whom were frequent Fox News guests. Many of the alleged defamatory statements involve these three. Other questions included:
- Do you regularly watch any Fox News programs, on television or any other social media, and, if so, would this affect your ability to be fair and impartial?
- Have you ever volunteered at a polling place?
- Did you work or volunteer in any capacity in connection with the 2020 election, other than as a voter?
