Making Sense of the Depp v. Heard Trial

At long last, David and Sarah address the biggest issue in America today–the state of ...

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At long last, David and Sarah address the biggest issue in America today–the state of the Johnny Depp/Amber Heard defamation trial. They also talk about Ted Cruz’s Supreme Court win, ask whether the Fifth Circuit destroyed the Securities and Exchange Commission, discuss an interesting case against Alaska Airlines, and end with a bit of legal/political potpourri.

Show Notes:

–Axios: “America more interested in Depp-Heard trial than abortion”

–Patel v. Garland

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  1. Brooke Eggen

    Here is a respected Domestic Abuse Expert taking apart the Depp v. Heard case according to the Duluth Model of Power and Control. https://docs.google.com/document/d/1rgcwaYt_AilfXz-1fsOuZ_hiQe24DXGKsQmmK40ZevE/mobilebasic?fbclid=IwAR2wm8UMqUVRYHQYPeb-ToLm1_D3ta4hMzCSF-zlBPTTuzv1VRH6g0yH0w4

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  2. Hayden

    I came to talk about how David and Sarah clearly haven't watched any of the Depp/Heard trial, but everyone else seems to have gotten the assignment. I'll just say that even a WEEK ago (a couple weeks into the trial) I felt exactly the way David and Sarah did, and largely ignored the trial. I thought these are two self-obsessed famous people airing their toxic relationship in front of everyone, and hoped both would lose. But then I got sucked in through watching another lawyer's livestream of the trial, and I have gone back and watched every min of the trial through her commentary (Emily Baker for anyone interested), and I've come to be very invested in the results of the trial. What Depp's team have slowly and painfully shown is that Heard's "evidence" has not been able to hold water under scrutiny. They have caught her in multiple lies and inconsistencies, and have shown that the amount of damage allegedly done by Depp do not match the photos she took. There's also a huge problem that hasn't been addressed formally in court yet, that Heard's team has refused to hand over the metadata to all her photos, IGNORING the court's order to do so by NOVEMBER of 2021. When crossed about it, Heard THREW her attorneys under the bus saying she handed everything over to them. So there's a big problem with the "evidence" Heard is using to prove physical abuse. But Sarah and David are ignoring that Domestic Abuse is not the only thing in question here. She claimed in the online version of her Op-Ed, and in her testimony, that she was physically, emotionally, and sexually abused. She's been caught in inconsistencies and lies on all those counts.
    Now, I'm definitely not a Depp "fan". I didn't care about him one way or the other before this. I assumed that he probably did abuse her the way she claimed, even if it's not to the extent she claimed. But after watching the trial, she comes off as a liar and an abuser of Depp. I'm not saying that's true, I'm saying how things are looking after almost 6 weeks of evidence has been examined, and witnesses have been crossed, and testimony has been given.
    This trial is culturally important because its the biggest case where a man has worked to clear his name of the MeToo stamp of ABUSER. And to everyone's surprise he is succeeding and showing Amber to have lied. He's entering into the cultural conversation that men CAN be victims of domestic abuse, as well as victims of false claims that can ruin their life. This trial is also showing that Heard is NOT an appropriate "face of Abuse and the MeToo movement", and tells everyone that you DAMAGE that movement when you lie about abuse.
    I'm getting annoyed at people's glib responses to the trial when they haven't watched it. I think they would realize its importance if they did. But I also understand-- who has that time.

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    1. Hayden

      Also...
      The hairstyle and clothing analysis online isn't JUST pettiness in THIS case, as David and Sarah said... Depp's team had an expert witness, who is a clinical and forensic psychologist who specializes in trauma, who analyzed Heard and said she diagnosed her with borderline personality disorder and histrionic personality disorder, and talked about how Heard mimic'd others' personalities, interests, ways of talking, etc. In the course of the trial Heard HAS matched her style to Depp, some of her witnesses, AND it seemed like she even mimic'd Dr Curry the day after Curry's testimony, after it was clear people liked Dr Curry. It's just an interesting thing people have been tracking after Dr Curry's analysis.

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  3. Avatar photo
    Bill Dyer (aka Beldar)

    I can confirm from personal knowledge that Fifth Circuit Judge Jennifer Elrod was indeed a trial judge, having tried a jury case before her in ~2008. She was a crackerjack trial judge, having before that been a crackerjack trial lawyer. I'm a fan.

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  4. Avatar photo
    Rjosephpaquette

    Hearsay evidence always confused me. Admittedly not a lawyer, so help me out if someone can.

    I am testifying at a trial. These are three testimonies, and I understand some would be allowed and some not as Hearsay.

    I testify I heard a drill in the next room.
    I testify I heard human make a drill like sound in the next room.
    I testify I heard Bill say the word, "drill".

    Are not all three simply my reporting my experience in the world?

    I don't understand the legal justifications for the difference.

    PS. To further my confusion, as a physician I did testify what a patient told me, and the judge allowed the testimony as a hearsay exception--I didn't under why, but I did get to testify. In this case, a woman had a skull fracture, I was the ER doctor on duty. She told me her boyfriend did it, then lost her memory as the brain swelled causing damage.

    How come some are allowed and others not?

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      You're not crazy. I was actually going to talk more about this issue this week and try to break it down. To over simplify maybe a little--but I think it will do for our purposes--the question of whether you can use hearsay is whether its for "the truth of the matter asserted" or your own impression. Ie if the question for the jury is whether there was a drill in that room, then you hearing Bill say "drill" is hearsay and you can't use it. Our legal system requires the attorney to go get Bill to testify as to whether there was a drill. BUT if you're testifying that you heard someone say "drill" and that's why you ducked under your desk, and the question for the jury is whether it was reasonable for you to be scared enough to duck under your desk, then it's not hearsay because the question is whether you were scared when heard someone say "drill."

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        Rjosephpaquette

        Now I'm more confused. Look forward to a discussion on AO.

        I still don't understand why I can't testify, "I heard Bill say the words 'power drill' and 'donkey'."
        What if Bill testifies he never said them, can't I testify he did?
        If not that seems silly.

        Maybe a simpler question is, 'when can I NOT testify about what someone else said?'

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  5. Avatar photo
    Paul B

    I, for one, would like to extend a hearty thanks to our hosts for indulging in this big, delicious, Jeni’s-Gooey-Butter-Cake pint of an episode.
    Yes, we’re all here for the kale-and-ginger-extract-smoothie of serious, in-depth legal analysis. But damn, this was fun to listen to.

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  6. Avatar photo
    Flying Dutchman

    You made some fair points in the Depp v Heard trial, but unfortunately dropped the ball on some important other points.

    1) Here as in The Dispatch Podcast, you state that this is not an important news story. I disagree. This was one of the largest examples during the MeToo movement, and what we could be seeing here is an important (and possibly good) self-correction of the movement.

    This case could be a good example of why "believe all women" is problematic from at least a fairness / due process point of view and could make clear why allegations should be taken seriously, but should also be investigated. In addition, it could bring more attention on men being the victim of abuse, as a lot of abuse cases are gender biased. This case is not about the legal case, it is about the public one.

    2) The photo's from Heard's injuries are not as clear or definitive as you made them sound in the podcast. One of the largest issues is that many times Heard alleges some horrific abuse there are no pictures corroborating the severity of that alleged abuse.

    So for example, in one story she claims Depp pounded on her face multiple times with his fist with rings on it. The only photo corroborating that story shows her with a bruise on her arm, but part of her face is visible and there is nothing to see on her face. In multiple other stories, she made photographs of Depp sleeping or some minor damage, but none of her alleged injuries. Lastly, one of the pictures of alleged bruising turned out to be photoshopped (and was submitted along with the original, but presented as a different picture).

    3) The poop story is absolutely important. At minimum it goes to credibility of the witness, but if it turns out Heard was the perpetrator this could fit in a pattern of abuse. I think you dismissed that one too quickly, possibly because of all the media craziness around it.

    Maybe I'm wrong, but listening to this podcast it seemed you did not watch the cross-examination on the 17th. If I'm correct, maybe you should have watched that before recording the podcast.

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    1. Ben P

      On 1), was this really "one of the largest examples during the MeToo movement"? I personally had no recollection of it from the time, but that doesn't count for much, so I googled "metoo list of men accused" and time restricted the search to 2019. There are at least a dozen names that come up before Depp's, and most articles don't mention him at all. Which isn't that surprising given that Heard's op-ed in the Washington Post came over a year after the movement exploded, but I made sure to only look at 2019 articles.

      I'm not claiming that this case isn't relevant to the movement *now*, given the level of publicity and what seems like a majority of public support for Depp. But I don't think it was seen as a major MeToo case prior to Depp's lawsuits, at least not if we're ranking names (Weinstein of course, Rose, Lauer, Franken, Spacey, Keillor, Louis C.K., and Ansari come to mind).

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    2. JOS_Mars

      As I said, maybe they should have just kept quiet about the case. Cos they treated it with no neutrality whatsoever. I follow AO for reasonable analysis of the legal issues around the "issues". They gave almost zero analysis, at least nothing like they Normally do.

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        Flying Dutchman

        Tend to agree

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    Holly

    I'm not generally interested in the Heard/Depp trial, but I do have an AO question: How is it that a case like this gets so much time/resources from the justice system? Who decides how long the trial will be? Can the length be limited? What a waste of time and money for the court system! Can you imagine being chosen for jury duty thinking you are doing your civil duty and you have to set aside your life and work for WEEKS to listen to this garbage?

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    Liz Linton

    Not the Depp/Heard lawsuit.
    A Ukrainian watches the destruction of it's land and an American watches two celebrities whose uses fame as a value.


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  9. JOS_Mars

    I was gonna come here and leave a comment about Sarah and David's blind spots when it comes to spousal abuse relating to men, but thankfully, the AO comment section is already chock full of great takes on that. I do hope that David and Sarah are reading. Depp is clearly flawed, but I'm already 15 mins in, and Sarah has spent all the time dismissing Depp's perspective while David has taken great pains to clearly state how evidence against Depp is overwhelming.

    Maybe you guys shouldn't have spoken about this one at all, cos you don't seem to be treating it with the neutrality I have come to expect from AO.

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  10. David

    It's been a while since law school, but testimony about a photo, if offered for truth of what the photo allegedly depicted, isn't that hearsay? There might an exception that gets it in, and if the photo itself is introduced in evidence, that is something else--it's the ultimate present impression (or something like that). It's not testifying about what you saw, it's testifying about your understanding of what the camera saw. It's seems like a transcript, which is hearsay, but comes in through the present exception. But someone's testimony about their recollection of a photo seems weaker, just like if someone read a transcript and said I recall it saying xyz--what gets it in if it's to prove the truth of the transcript. Happy to be thoroughly debunked on this piece of nerdery.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      You are correct if it’s introduced for whether there was poop on the bed. But that was undisputed. In this case, it was introduced for evidence as to what the witness believed. And he can testify as to what he saw in the pic and then how he felt about his marriage.

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      1. David

        Ah, the fact in the photo was not disputed. Definitely agree that he can testify about his feelings re the undisputed fact. My exposure to this trial has been on Facebook reels in my feed, not ashamed to say I watch some of them, but less than a thorough review.

        The Elon Musk reels are more fascinating. Would be interested in AO's take on a $250k settlement for a billionaire. In my view, she certainly could be telling the truth, but a $250k settlement tells me absolutely nothing. It's less than nuisance for someone with his profile, but maybe that was meaningful to her.

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