High-stakes Fox defamation trial set to begin with search for unbiased jury

Hundreds of potential jurors are to be questioned about their TV viewing habits and opinions of media tycoon Rupert Murdoch as a judge searches for a dozen Americans to decide a landmark $1.6 billion (€1.45 billion) defamation case against Fox.

The process, which starts on Thursday, marks the start of a six-week trial in which the conservative news network and its owner, Fox Corp, will answer to claims of deliberately and knowingly airing false allegations that voting-machine maker Dominion rigged its devices to swing the 2020 presidential election for Joe Biden. Twelve jurors, and probably six alternates, will be selected.

“In terms of politically saturated cases, this one is probably the most loaded ... we have seen in a long time,” said Daniel Wolfe, a jury consultant at Magna Legal Services, who has worked on more than 1,800 cases.

Judge Eric Davis is overseeing the case in Delaware, where Fox is incorporated, and will question the prospective jurors. He has repeatedly said he will not disqualify people based on their political leanings.

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“I don’t care who they voted for or whether they think certain things about the election,” Judge Davis said in a hearing this month.

The selected jurors will be hearing one of the most high-stakes media trials in years. The case has already exposed how several of Fox’s prime time hosts, including Sean Hannity and Tucker Carlson, knew allegations of election fraud were largely unfounded, even as the popular conservative news network worried it would lose viewers who supported Donald Trump if it conceded he had lost.

Last month, Judge Davis significantly narrowed the case, ruling that there was sufficient evidence to conclude the statements aired about Dominion were false and that the First Amendment’s protections for free speech did not shield the organisations broadcasting them.

He said a jury would have to decide only whether Fox acted with “actual malice” in broadcasting the allegations and, if so, what damages were sustained by Dominion.

More than 1,600 notices were sent out to potential jurors in New Castle County, where the trial is to be held, according to a court official. Unlike in other jurisdictions, those who turn up on Thursday will be questioned directly by Judge Davis, with lawyers for Dominion or Fox forced to register any objections or raise questions via the judge and at his discretion.

As soon as the names of those in the jury pool are released to the parties, they are likely to do rapid research on those individuals’ publicly available statements, said Christina Marinakis, a jury consultant at trial consultancy firm IMS who has worked on cases assigned to Judge Davis.

Investigators for Dominion and Fox will search social media sites to see, for instance, “what were they posting around January 6th, what were they posting around George Floyd riots?” she said.

The questions both sides have agreed Judge Davis can ask are limited to broad queries on whether jurors have an opinion on the “people who might be called to testify as witnesses in this case” – a list which includes Fox owner Rupert Murdoch and his son Lachlan – or whether they have personally worked as an official on election campaigns.

Jury selection experts agreed Fox has a steeper challenge when it comes to weeding out jurors it may consider to be biased. Davis has already threatened to sanction the network’s lawyers after he accused them of having a “credibility problem” and raised concerns that they had withheld evidence during the discovery process. Fox has denied it did.

Nearly 70 per cent of New Castle County, where the trial is taking place, voted for Biden, and “even conservative jurors in Delaware are likely to have some respect for [Biden, a former US senator from Delaware] because of his history in the state,” Ms Marinakis said.

“The people that are pro-Fox are going to tend to be vocal about it and unwittingly expose themselves to being struck for cause,” said Doug Greene, a former president of the American Society of Trial Consultants. “The odds will be in Dominion’s favour.” – Copyright The Financial Times Limited 2023