Depp v. Heard: Why did an American jury reach a different decision than the English judge?

We now know that in Virginia it is defamatory to call Johnny Depp a wife beater, whereas in England, at least for the time being, it is not.

How could it be that on what was the same issue two courts could arrive at such contradictory verdicts?

The American verdict appears itself somewhat contradictory. Whilst finding mainly in favour of Depp, it did also make one finding in Heard’s favour. On one discrete issue, they found that she had not set up Depp in an “ambush” to fabricate hoax allegations of abuse. But that was a small crumb of comfort – albeit it has saved her $2M – in a decision that otherwise saw the jury exonerate Depp on the central allegation that he was a domestic abuserAlthough there are many important differences between the applicable libel law in each country, those differences do not explain the different verdicts. It is in fact generally much easier to prove defamation in England and Wales than it is in Virginia, where the First Amendment provides strong legal protection for freedom of speech, particularly where public figures are concerned. Yet despite a more favourable legal landscape in England, Mr Depp lost in London and won in Virginia.

Of course the evidence about the various allegations of abuse was not identical in each trial. But much of it was very similar, not least that of the two protagonists.

The most obvious difference in procedure was that in Virginia the case was decided by a jury, whereas the English case was decided by a judge alone. It is quite possible that that made a difference. In England and Wales juries have been all but abolished for defamation cases, as Laurence Fox recently learned very expensively, but we retain juries for serious criminal cases because, bluntly, we don’t trust judges as much as we trust juries.

There are two reasons often given for why a judge only trial may be better than trial by a judge and jury.

The first is that a judge should be less likely than a jury to be influenced by public opinion.

In this case public opinion – during both trials, but particularly the second – was overwhelmingly sympathetic to Depp, and hostile to Heard. A quick search for #DeppvHeard on Facebook or Twitter produces a torrent of abuse directed at Heard. Guardian writer Moira Donegan described it today, not entirely unfairly, as “an orgy of mysogyny.” The contrast between the dignity of the Virginia courtroom and the social media free-for-all online was particularly striking. Whatever instructions may have been given to the jurors it is very difficult to think that the online campaign by Depp supporters did not have some influence on their thinking, and there is some suggestion that Ms Heard may try to appeal because of it.

Of course it is absurd to think that judges are not influenced by public opinion too, but a combination of training and experience should mean that they are better equipped to ignore it and concentrate only on the evidence.

The second advantage of a judge-only trial is that the reasons for the verdict must be explained. Mr Justice Nicol’s judgment against Depp was  convincing. It certainly convinced me. This was not because I thought anyone claiming to be a victim of domestic abuse, or all women, should be believed. Nor was it because the evidence was overwhelming in Heard’s favour. He was not deciding a criminal case where it would have been necessary for him to be “sure” or “sure beyond reasonable doubt,” that Depp was guilty; the question was whether it was more likely than not that he was a “wife-beater.” It is quite possible that the judge had some doubts, but he still had to make a decision one way or the other.

The reason the judgment was convincing was that it was self-evidently the result of a conscientious analysis of a huge mass of evidence. There was witness testimony going both ways, but Nicol seems to have been especially influenced by the contemporaneous material that existed – text messages, photographs, videos and so on. Perhaps he had in mind the words of Mr Justice (now Lord) Leggatt’s famous judgment in Gestmin v. Credit Suisse [2013] EWHC 3560 (Comm), in which he explained the dangers of relying on the recollection of witnesses rather than the evidence of contemporaneous records. It’s worth quoting at some length:

Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often … when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Leggatt was deciding a commercial case, but his observations about the limitations of oral testimony are apposite to all cases in which witness testimony is given.

Nicol rejected a central part of Depp’s case, that Heard was a “gold-digger” in an important paragraph, which appears in a section towards the end of his judgment headed “Stepping back and considering the evidence as a whole”:

A recurring theme in Mr Depp’s evidence was that Ms Heard had constructed a hoax and that she had done this as an ‘insurance policy’ – presumably in the event that the marriage broke down. Mr Sherborne [Depp’s barrister] commented in his closing submissions that Ms Heard had said that she recorded some of her conversations with Mr Depp to show him what he was capable of doing when the Monster prevailed and yet many of these were never played to or shown to Mr Depp. She was, according to this scenario, nothing more than a gold-digger. I have in the course of this judgment given reasons why I do not accept this characterisation of Ms Heard. Looking at the evidence as a whole, I come to the same conclusion. There is a multiplicity of emails, texts and messages and diary entries in the papers before me. I have quoted some. Some, but by no means all, are from Ms Heard. I recognise, of course, that previous statements by her are not independent evidence of the truth of the allegations, yet they are not, on the other hand, inadmissible or irrelevant for that reason. There are also as I have shown sometimes statements from third parties which do corroborate her. I had evidence as to what Ms Heard had received as a result of the divorce settlement. …”

And then came this:

The principal element of that settlement was payment to her by Mr Depp of US $ 7 million. Ms Heard’s evidence that she had given that sum away to charity was not challenged on behalf of Mr Depp and the joint statement issued by Mr Depp and Ms Heard as part of the Deal Point Memorandum acknowledged that this was her intention (see file 9/139/L78) . I recognise that there were other elements to the divorce settlement as well, but her donation of the $ 7 million to charity is hardly the act one would expect of a gold-digger.”

Presumably the reason that Ms Heard’s evidence on the $7M was not challenged was that at the English trial Mr Depp’s lawyers had no evidence that it was untrue. The judge can hardly be criticised for accepting evidence if it is not disputed or contradicted. Indeed, for Nicol to have rejected her evidence on the point would have been ridiculous. Judges must act on evidence, not hunches.

Yet by the time of the American trial her it turned out that she had not given $7M to charity at all. She had merely agreed to do so. The politest way of describing her explanation, that in her mind there is no difference between a pledge and a donation, is to say that it was unconvincing.

Depp’s attorney, Camille Vasquez, has received much well-deserved praise for her cross-examination of Heard, and the passage in which she questioned her, calmly, methodically and as politely as possible about this supposed charitable donation was electrifying.

Camille Vasquez

Having drawn her attention to her appearance on a Danish TV chat show, when she unambiguously claimed to have already donated the money, she then took her to her formal statement in the English libel trial:

Vasquez:  Sitting here today Ms Heard you still haven’t donated the seven million dollars divorce settlement to charity isn’t that right?

Heard: Incorrect I pledged the entirety of this settlement seven million to charity and I intend to fulfil those obligations.

Vasquez: That’s not my question please try to answer my question. Sitting here today you have not donated the seven million dollars – ‘donated’ not ‘pledged’ – donated the seven million dollars divorce settlement to charity?

Heard: I use pledge and donation synonymously with one another.

Vasquez: Ms Heard I don’t use it synonymously.

Heard: That’s how donations are paid.

Vasquez: Ms Heard respectfully that’s not my question. As of today you have not paid 3.5 million dollars of your own money to the ACLU, yes or no?

Heard: I have not yet.

Vasquez: And as of today you have not paid 3.5 million dollars of your own money to the Children’s Hospital Los Angeles?

Heard: Correct, I have not yet. Johnny sued me.

Vasquez: So as of today you have not donated paid seven million dollars of your divorce settlement to charity:

Heard: Right I have not been able to fulfil those those obligations yet.

Having established that, contrary to her public assertions, she had not donated the divorce settlement to charity, Vasquez moved to the killer point, which was that she had lied under oath:

Vasquez: You testified under oath that “the entirety of your divorce settlement was donated to charity?

Heard: That is correct I pledged the entirety

[Objection]

Vasquez: Under oath that statement was not true was it Ms Heard?

Heard: I’m sorry I don’t understand the question.

Vasquez: Let’s look at your sworn testimony from the UK

[Lawyers approach the bench]

Vasquez: (reading from a large lever-arch file): This is your third witness statement that you submitted in the UK action right Ms Heard?

Heard: Correct.

Vasquez: And this statement was made under oath, true?

Heard: That is true.

Vasquez: I’m directing your attention to the last page of that statement, that’s your signature right?

Heard: Yes it is

Vasquez: So you made the sworn statement on February 26 2020?

Heard: That’s correct.

Vasquez: And directing your attention to paragraph four it says “I remained financially independent from him the whole time we were together and the entire amount of my divorce settlement was donated to charity,” end quote?

Heard: That is correct.

Vasquez: Did i read that correctly?

Heard: Yes you did.

Vasquez: The him you were referring to is Mr Depp?

Heard: That is correct.

It is very hard to see how Ms Heard’s assertion in her evidence in the English libel trial that she had donated the entire divorce settlement to charity was anything other than perjury

It is all very well, like Dr Charlotte Proudman today, to complain that the verdict is bad for the victims of abuse:

“What message does this case send out? You can be silenced. You cannot utter his name. You will be humiliated in court. You will be blamed. You will be called mentally ill. You will be mocked by your alleged perpetrator and his cronies. You will be wrapped up in litigation costing thousands of dollars at best.”

Unless such criticism engages, as Dr Proudman’s certainly does not, with the uncomfortable fact that Ms Heard appears to have lied on oath, it misses the point. Juries, like judges, are meant to decide cases on the evidence, not political slogans.

I have never been anywhere near a celebrity libel trial, but I can confirm that any jury will always sit up and take notice if it can be shown that an important witness has lied on oath. It doesn’t happen very often, but when it does you know that the liar’s case is on the rocks and can only be refloated with the greatest of difficulty. Whatever view the Virginian jury may have had of Ms Heard’s case before it listened to that evidence, after this their confidence would have been shaken in everything else she said.

What Nicol J. would have made of the lie, had it emerged at the English trial, we cannot know. No doubt he would have asked himself whether Ms Heard really meant to give the impression that she had actually given the money to charity, rather than simply pledged to do so. If she truly believed that a pledge and a donation were “synonymous” then she would not have been lying at all. The assertion was not contained in her oral evidence but in a written statement which was no doubt carefully drafted by her lawyers, so he would have considered the possibility that the assertion arose as a result of her lawyers’ mistake rather than her own dishonesty. Had she perhaps mistakenly signed an infelicitously drafted statement without fully understanding its meaning? Even if he had concluded that she was lying, he would have reminded himself that people tell lies for all sorts of reasons, and that the mere fact that someone lies, even under oath, is not a reason for automatically rejecting everything else they might say.

But it is impossible to escape the fact that he did rely on Heard’s unchallenged assertion that she had given the money to charity as a reason for rejecting what he himself called “a recurring theme” in Depp’s case. It was not the only reason for rejecting Depp’s claim, but it was significant enough to find its way into an important part of his judgment.

What will the consequences be in England?

Contrary to what I thought when I first published this post, it is very unlikely that Mr Depp will be able to use anything from the Virginian case to appeal the English judgment.  The mere fact that an American jury came to a different conclusion from Nicol J will get him nowhere.  A much stronger argument, that the verdict should be set aside because Ms Heard had been shown to be lying about the donation was rejected by the Court of Appeal last year.  In essence, the court said, even a clear indication that Ms Heard had lied on oath not have affected Nicol J.’s conclusions because:

“… there were contemporaneous evidence and admissions beyond the say-so of the two protagonists, which cast a clear light on the probabilities. In an approach of that kind there was little need or room for the Judge to give weight to any general assessment of Ms Heard’s credibility, which is notoriously a more difficult and uncertain basis for deciding on disputed facts. It is pure speculation, and in our view very unlikely, that he gave any weight to general considerations about her character of the kind suggested by Mr Caldecott.”

Given that The Sun had no case at all without Ms Heard’s evidence and given that she was their star witness, it may seem odd to many that the Court of Appeal should have shrugged off demonstrable proof of her dishonesty with quite such insouciant confidence. It is one thing to say that the judge did not rely on any “general considerations about her character” to reach his findings; it is quite another to say that clear evidence that she had lied on oath could have made no difference to his findings, or indeed to the way that Mr Depp might otherwise have presented his case. 

As an aside, for aggrieved criminal appellants who may have had their appeals refused in a “he said / she said” type of case with little other evidence, it is rather cold comfort to hear the Court express the view that assessing the reliability of witnesses is a notoriously “difficult and uncertain basis for deciding on disputed facts.” Difficult and uncertain it may be, but that’s good enough for criminal cases, apparently. 

Anyway, as far as Mr Depp is concerned, the point has already been argued and dismissed. It doesn’t concern the Court of Appeal in the slightest that The Sun’s chief witness may well have committed perjury.

There may be at least some prospect that Ms Heard will face prosecution for perjury or perverting the course of justice.  Despite the Couret of Appeal not seeming to care very much in this particular case, as a general rule the English courts take these offences extremely seriously. Jeffrey Archer was sentenced to four years imprisonment for lying at his libel trial. Jonathan Aitken got off rather more lightly with an eighteen month sentence, after lying about who paid his £1,000 bill at the Ritz Hotel in Paris. 

Apart from proving that Ms Heard lied in the English case, for a perjury conviction the prosecution would have to prove that the lie was about something that was objectively “material.”  Should it come to that, the Court of Appeal’s judgment could perhaps be used to argue that it was immaterial.  We are still a long way off any prosecution, not least because she is not within the jurisdiction of the English courts. Nevertheless, it is a real possibility, notwithstanding the outrage that would be unleashed by the prosecution of a woman who claims to have been the victim of domestic and sexual violence.

Finally, what does this case say about the televising of trials?

If I was a Virginian watching on TV I would have been impressed by the way my state handled the trial. There were some grating aspects, such as the open production of a camera with an enormous long lens, presumably by a press photographer, pointing straight at Heard as she was being cross-examined (see the rather poor picture on the right below, it is much clearer in the video)but in the main the handling of the trial itself seemed impeccable. The judge was courteous, firm and fair. The attorneys all seemed to perform their jobs creditably. Although the public gallery was always packed, members of the public inside the court were quiet and well-behaved.

But the spectacle of Depp and Heard washing their extremely dirty linen before an online audience of millions was not edifying at all. However dignified the court-room procedure, once it becomes televised and open to comment on social media all dignity is lost. Many potential witnesses who might be willing, though nervous, about giving evidence in a case would surely become terrified of doing so if they know that everything they say could be put on you-tube or twitter for discussion and mockery by online mobs.

This case has weakened the case for admitting cameras into British trials.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

14 thoughts on “Depp v. Heard: Why did an American jury reach a different decision than the English judge?”

  1. A very Informative review and particularly the way you contrast the American trial and the English one. I feel sure that the English judge might have come to a different conclusion had Ms Heard’s Untruth About the so-called gift to charity.

  2. I personally am grateful for the cameras in the US trial. I may not have been aware of Ms. Heard’s various lies in this case if this trial wasn’t available to view freely. Dr. Proudman is not the only commentator in the press who has ignored the fact that Heard committed perjury or completely disregarded the idea that Mr Depp could be telling the truth, so I may very well have continued to believe what the liberal press assumed about this case from the outset and not seen any more nuanced views about both trials from those who are better informed such as yourself.

  3. Thank you for this clear comparison of the two trials. I am not a lawyer, so the insight into judges’ placing more weight on hard evidence as opposed to potentially unreliable witness statements was useful.
    It’s a shame all this personal stuff was aired so publicly, but I think the press do have to be held to account and challenged if they print untruths.

  4. This isn’t the first time the Court of Appeal has taken a remarkably breezy view of demonstrable misconduct in a libel case. One thinks of Hamilton v Fayed, where the fact that Fayed paid for privileged documents to be retrieved from the bins outside Hamilton’s counsel’s chambers was apparently irrelevant- even to Fayed’s credibility or the costs order. The CA even started its judgment “This case is about a load of old rubbish” – a disgracefully light-hearted way to treat both the misconduct and the case. Hamilton had been ruined, and while he seems a fairly awful character he didn’t have a fair day in court. Nor now does Depp. It seems to me that the CA treats criminal and libel appeals in a radically different way to other appeals.

    And as to the distinction between criminal and civil cases, v interested that you cite Leggatt J. Surely, if his approach to uncorroborated oral evidence was adopted into jury directions, we would have far more acquittals. And if adopted by prosecutors, we’d have far fewer of the “he said/she said” cases you mention. I’m not saying that Leggatt J’s approach shouldn’t become jury directions, but at the moment it always strikes me that one has a radical difference between the way civil judges are trained to approach oral evidence and the value that it is probably given by juries – a difference which is surely indefensible.

    Lastly, in these random musings, the pledge/donate dichotomy puts me irresistibly in mind of the final scene from that creaking old masterpiece “the Mikado”. The Emperor is astonished to find his son still alive, despite having been given the most colourful account of his beheading by KoKo:

    “KO. Your Majesty, it’s like this: It is true that I stated that I had killed
    Nanki-Poo –
    EMP. Yes, with most affecting particulars.

    KO. It’s like this: When your Majesty says, ‘Let a thing be done,’ it’s as good as done – practically, it is done – because your Majesty’s will is law. Your Majesty says, ‘Kill a gentleman,’ and a gentleman is told off to be killed. Consequently, that gentleman is as good as dead – practically, he is dead – and if he is dead, why not say so?

    EMP: I see. Nothing could possibly be more satisfactory.

    CURTAIN”

    Not sure how satisfactory a jury in a perjury case would see it however.

    Thanks for your blog, which is a model of clarity.

  5. I wonder whether Heard’s evidence was on oath in E&W?

    Her witness statement was verified by a statement of truth, rather than being given by affidavit.

    Would contempt proceedings not be more appropriate on that basis, if any?

    1. When she was sworn in as a live witness she will have been asked to confirm that the contents of her written statements were true. So at that point they are affirmed by oath so that a knowingly false statement is perjury

      1. That certainly satisfies my curiosity, thank you! Though I’m sure you’re aware of the remaining elements – particularly that a statement has to be material – and it seems that it wasn’t when she said it.

        It looks to have become more important as time has gone on because it became obvious it wasn’t true as opposed to when she said stated it.

  6. The assumption a judge is better in the UK looks shakey. The judge may be less susceptible to an unknown twitter comment, but they are more susceptible to “elite” opinions. The Times publicised around the trial the Heard was having dinner to discuss the trial with the likes of Cherie Booth, Helena Kennedy and a whole list of other names, the sorts Ms Proudman aspires to become (interestingly when I went to look for it, it has disappeared from News Corp publications but can be found on other papers sites). It also raises the questions as some have over other links (which I haven’t verified so I won’t risk your blog by mentioning) which have been claimed.

    Also, the focus on the Judge’s opinion is simpler than the whole trial but again can be seen as a sales document if you doubt the judge. What is excluded also matters a great deal.

    People have focused on the money lie Heard used, but that is only part of the issue around her credibility (that Nichol was so taken with).

    She was an abuser, not only witnesses but her own contemporaneous recordings show that, yet she claims not to be (Nichol considered her claims in a court case to be more reliable).

    Before the US trial a number of other lies were apparent, and people assumed would be more important. Matters such as the events in the penthouse where her story can’t be true due to the verifiable 3rd party evidence providing fixed reference points, and what would have been required to be done in between to make the time line work became impossible. The sort of thing the wealthy who just pay people to sort these things for them would not notice, but normal people tend to spot.

    Depp has no need to challenge the English ruling. All he needs now are people carefully setting out how rediculous Hears ever changing and amplifying stories were when set against evidence and he wins what he wants. The English system will look corrupt and over time news publications will not embaras themselves by using the cover the judgement gave them in the UK.

    Too many get interested in what is the technical legal situation when in the greater scheme, when the reality is obviously something else the image will stick.

    1. She should be charged with purgury. It was also a judge in the uk not a joury. The uk system would have heard Depp did drugs and disregard him fully. Also the man in the uk is always the Abuser not ever the abused. The uk system is archaic and outdated and the justice system needs fixed. To include things like protection for parents being abused by their children.

    2. Exactly. The days of the assumption of an impartial judiciary are long gone. Heard was the darling of the ‘elites’ which I am sure this judge feels is a member.

  7. Who covers the costs of providing a civil court for these bozos to bicker in?

    Are the costs a charge on the taxpayers or do the parties have to stump up?

  8. I’m not a lawyer or barrister, so I’m a little confused. Matthew says at one point Judges don’t work on a ‘hunch’ and yet in the narrative of the article Judges seem to be doing exactly that. In this ‘he said / she said’ environment it seems the Judge has to take an educated guess and the UK judge did, in favour of Heard.

    Secondly if it can now be seen / proved after the fact, that one of the parties (Heard) had lied about the donation, then as a layman I would have assumed that the party who lost could then challenge the verdict. The fact that our courts seem to have a very lax attitude to this, and even a ‘we don’t give a toss anyway’ position, is troubling.

    My one brush with the law is at university 35 years ago when I had to study contract law. The first statement from the lecturer was that w were studying the law and we had to put all common sense aside. Very prophetic.

  9. Apart from the ‘donation’ point, there was the tampered photographic evidence, leaking the details of the restraining order hearing to the paparazzi, the cast iron psychological expert evidence supporting Depp made even more convincing by the clown like experts produced by Heard. Police bodycam evidence showed none of the injuries or damage claimed by heard and witness after witness disproved claim after claim. Even Heard’s own witnesses at times disagreed with her version of the facts.
    Then there are the allegations of conflict of interest – Nicol’s association with Murdoch.
    All very suspicious and beginning to leave a whiff of something that needs airing.
    Internationally, English justice is currently not held in high esteem, and that criticism is growing among American legal commentators. They have a point.

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