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 The Holmes’ Trial Judge & Jury 

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Michael Santos

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A diverse group of people by age, gender, and race form the jury panel to decide Holmes’ fraud trial before Judge E. Davila.


In Part 3 of our Silicon Valley Fraud Trial blog series, we look at the Judge and the jury panel who will evaluate the facts and the law in the case of United States v. Holmes et al


District Judge Edward Davila oversees the criminal trial in United States v. Elizabeth Holmes et al. Judge Davila joined the Court in 2011 after being nominated by President Barack Obama. He began his legal career as a deputy public defender in the Office of the Public Defender in Santa Clara, California, in 1981. After seven years, he left the public sector and went into private practice. In 2001, former Governor Gray Davis appointed Judge Davila to the Superior Court of Santa Clara County. From there, he joined the Federal Court. 


Every criminal defendant is constitutionally entitled to a fair and impartial jury. Lawyers and judges select juries by a process known as “voir dire,” which is Latin for “to speak the truth.” In voir dire, the Judge and attorneys for both sides ask potential jurors questions to determine if they are competent and suitable to serve and ensure there is no bias in the case. 

Below are highlights of how a person comes to serve on a federal criminal jury, excerpted from the jury service guidelines provided by the United States Courts.

Juror Selection

The federal court juror selection process ensures that jurors represent a cross-section of the community, without regard to race, gender, national origin, age, or political affiliation. District courts randomly select citizens’ names from lists of registered voters and people with driver’s licenses who live in that district. They complete a questionnaire to help determine if they are qualified to serve on a jury, and then they are randomly summoned to appear. 

Jury Pool to Jury Box

Being summoned to appear for jury service does not guarantee that a person will actually serve on a jury. 

When needed for a trial, a group of pre-qualified jurors goes to the courtroom where the trial will occur. The Judge and the attorneys then ask the potential jurors questions to determine their suitability to serve on the jury, a process called voir dire. The purpose of voir dire is to exclude people who may not be able to decide the case fairly from the jury. 

The Judge will typically excuse members of the panel who know any person involved in the case, who may have information about the case, or who may have strong prejudices about the people or issues involved in the case. The attorneys also may exclude a certain number of jurors without giving a reason.

Criminal & Civil Juries

When an individual accused of committing a crime goes on trial, twelve people, and alternates, make up a criminal jury. The jury in a criminal case must reach a unanimous decision to find the defendant guilty. The government must prove the defendant’s guilt beyond a reasonable doubt. Guilty pleas and plea negotiations reduce the need for juries in criminal cases.

When people seek remedies in Court for private wrongs, at least six people make up a civil jury. The jury must come to a unanimous decision unless specified otherwise. The standard of proof is a “preponderance of the evidence” or “more true than not.” Settlement negotiations reduce the need for juries in civil cases.

Working Together: Judge and Jury

The justice system relies on the ability of judges and juries to work together. The Judge determines the appropriate law that applies to the case, and the jury finds the facts in the case based on the evidence presented to them in Court.

At the end of a trial, the Judge instructs the jury on the applicable law. While the jury must obey the Judge’s instructions as to the law, the jury alone is responsible for determining the facts of the case.

Click here for the full text of the jury selection process in US federal courts:

Learn About Jury Service


On August 31, 2021, Judge Davila set in motion the process to appoint the 12 jurors and 5 alternates to serve on Holmes’ criminal jury. 

Three days later, on September 2, Judge Davila swore in the selected 12 jurors (five women and seven men) and the 5 alternates (2 men and 3 women). This jury panel will spend the next four months considering wire fraud and conspiracy charges against Holmes. The jury panel in the Holmes case is a diverse group with regard to race, gender, and age.

The Court selected the jury panel out of a pool of close to 200 residents from the San Francisco area summoned for service. Prosecutors, defense counsel, and Judge Davila questioned the jury pool about their media exposure, personal biases, and feelings about domestic abuse.

The reason behind questions about domestic abuse is Holmes’ argument that codefendant Sunny Balwani controlled and physically and sexually abused her during the commission of the crimes. 

Prospective jurors had to answer questions about whether or not they had experience with any form of abuse or violence from others in their own lives. Many of them revealed that they had. Others revealed that someone close to them had experience with abuse or violence. Information like this can be highly valuable in putting together the right jury. 

The extensive media coverage in the Theranos case is one of the critical challenges to finding a fair and impartial jury. Throughout the questioning, Judge Davila reminded potential jurors about the importance of avoiding media.

During the jury selection process, Judge Davila dismissed many prospective jurors from serving. For example, on day one, the Judge dismissed 14 jurors out of a jury pool of 40 people based on exposure to media coverage of the case. After getting discharged, one woman told reporters, “I would have judged her fairly as a person and not as the evil billionaire portrayed in some of the media coverage.” Another prospective juror stated: “The documentary gave a negative picture about the defendant. I recognize I have some bias. I can try to put aside bias and only look at the facts.”

For the parties and the Court, predicting who can be fair and impartial despite media exposure is not easy. Some prospective jurors attempt to hide their biases because they want to serve on the jury in a high-profile case. Others lie because they do not wish to serve. 

After finally swearing in all 17 jurors, Judge Davila told the jurors not to conduct research and avoid media coverage of the case. The jury will be back for opening statements on September 8.


Jury selection is complete and a 12-member jury panel, plus 5 alternates, has been sworn in for the fraud trial of Elizabeth Holmes. Opening statements will begin on September 8. The jury panel consists of a diverse group of people by age, gender, and race. Judge Edward Davila is presiding. A big challenge for the jurors is to avoid the extensive media coverage of the trial. 

Follow the Prison Professors blog for regular updates on Holmes’ Silicon Valley fraud trial.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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