Last Wednesday’s verdict in the Amber Heard/Johnny Depp defamation case has been criticized for multiple reasons, particularly for the chilling effect the decision is likely to have on the #MeToo movement, jeopardizing survivors’ ability to speak openly about their abuse. The jury declared Depp had been defamed by Heard after she wrote an op-ed in the Washington Post stating she was a “public figure representing domestic violence”; it awarded the actor $15 million in damages. (The jury awarded Heard $2 million, finding Depp’s lawyer had defamed the actress in statements he made about her abuse claims.)
Heard’s lawyers have already promised to appeal the verdict based on Judge Penney Azcarate’s evidentiary decisions.
Judges pay a lot of attention to what evidence is admitted and the exact wording of the instructions that are given to the jury. Both of those procedural measures are intended to ensure that the jury does not become biased against one of the parties because they heard evidence that makes that party look bad but isn’t legally relevant. Jury instructions are designed to ensure that jury members know how to take the facts they have heard and apply them to the law of the case.
In the Heard/Depp trial, Azcarate, the chief judge of the Fairfax County Circuit Court in Virginia, seemed to be trying to strike the right balance. Some of her major rulings seemed to favor neither side. For example, she denied Heard’s motion to dismiss as well as Depp’s motion to dismiss Heard’s countersuit. The jury instructions seemed to favor Heard at least in some respects.
Although a media storm—both traditional and social—raged outside the courthouse, on the face of it the trial itself looks to have been run without any major bias, as if it were an oasis of order in the surrounding chaos.
But Azcarate made two rulings that paved a wide path for outside opinion to come in and improperly influence the jury. The first mistake came weeks before the trial began, when Azcarate allowed the proceedings to be televised. That decision was quickly criticized due to the sensitive nature of the domestic violence testimony that was to come. Heard’s attorneys noted how easy it would be to take footage of their client’s testimony and manipulate it to malign her.
Even so, it is unlikely that anyone could have anticipated the scope of how this footage would be used. There were tweets and Facebook posts with video clips, but there were also memes shared on Facebook with unflattering photos of Heard inserted into images from Pirates of the Caribbean, as well as people uploading videos to TikTok mockingly lip-syncing Heard’s tearful testimony. The daily footage over the course of the seven-week trial provided a constant source of images, audio, and video that could be used, manipulated, and shared with the world. Some images and videos were viewed billions of times with a clear preference for anti-Heard content.
Disturbingly, much of this content seems to have been created by alt-right bots and men’s rights activists. Because Depp, as plaintiff, presented his evidence first, members of the public may have already made up their minds before Heard presented her side of the story, though there is plenty of evidence that public opinion was in his favor before the trial even began.
The seemingly inescapable social media trial surrounding the actual Heard/Depp trial highlights Azcarate’s second mistake: refusing to sequester the jury.
Jury sequestration is used to ensure that a jury is not unduly influenced, by keeping them separated from the outside world and restricting media consumption and internet access. Sequestration was most famously used in the 1995 O.J. Simpson case to shield jurors from the conjecture surrounding the high-profile murder trial. And it was also used more recently in the 2011 Casey Anthony case, in which Anthony stood accused of murdering her 2-year-old daughter. The fact that both of these cases were criminal murder trials, however, may have been a crucial differentiator for Azcarate.
Without sequestration, the jury in the Heard/Depp case was left to police itself. Azcarate did tell the jury members not to read about or do research on the case as well as to turn off their cellphone notifications so they would not accidentally see a news alert. In addition, Azcarate repeatedly encouraged jurors to avoid discussing the case with others, either in person or online. Her admonishments track with a 2012 Fairfax County Circuit Court order that states that juries are prohibited from using portable electronic devices to research a case or talk about the case they are deciding.
But it is impossible to know whether the jury followed these orders. There is plenty of evidence to suggest that, generally speaking, members of juries do seek out information or talk to their friends about their cases even when a judge tells them not to. And that is for normal, run-of-the-mill cases, not the social media trial of the century.
More importantly, even if they did their best to avoid the news or talking about the trial, how could the jury avoid catching a glimpse of the deluge of social media coverage of the case? Even passive use of any social media platform would have presented images, memes, gifs, tweets, or TikTok videos about the case, likely in Depp’s favor. Social media algorithms would have placed this content front and center on their Facebook news feeds or Instagram homepages, either because the content was generally popular or because at least some of their contacts were sharing it.
Ultimately, the mistake Azcarate made was treating this case like it was just like any other case. Cameras are often allowed in courtrooms, particularly for high-profile cases, so why not allow live coverage here? Jury sequestering isn’t typical for civil cases, so why do it in this case? What Azcarate failed to anticipate is how these two decisions would feed the media and social media frenzy outside of the courtroom and how easily that frenzy could reach the jury.
Even if the evidentiary decisions were correct, Heard’s lawyers may still have a good claim of jury bias, though all that will get them is a new trial and, potentially, a new round of abuse for Heard. The precedent set, however, may be groundbreaking enough to risk it.