Johnny Depp vs Amber Heard: The form the jury will use to reach its verdict

The contentious defamation trial between actor Johnny Depp and his ex-wife Amber Heard is now in the hands of the jury. The seven-member panel heard the closing arguments on May 27, and met to deliberate for the first time. Since then, it has concluded two days of deliberations without reaching a decision. The jury will resume deliberations on Wednesday morning, but no one knows how long it will take the jury to reach a verdict.

As the end of the trial draws near, people have been waiting in huge lines and even camping overnight outside the courthouse to secure a seat in one of the most-talked-about cases in recent history. It is not a criminal case; the jury will not rule on the allegations of abuse and assault that have been raised in the trial. Instead, they will focus on the subject of the lawsuit: defamation.

Depp is suing Heard for $50 million for defaming him in an op-ed she wrote for The Washington Post in 2018, in which she described herself as “a public figure representing domestic abuse.” Although Depp is not mentioned by name, he argues that it was obvious who she was referring to. Heard responded to Depp’s complaint by countersuing him for $100 million, claiming that his lawyer smeared her by calling her a liar. While Heard maintains that Depp physically abused her and even sexually assaulted her with a bottle, the actor says he never struck a woman in his life and was, in fact, the victim in the relationship.

To help the jury reach a verdict, the judge has provided the jurors with a special form, to which EL PAÍS has had access. The form does not include the words “guilty” or “innocent,” since the jury has not been asked to judge a crime. They must decide whether either the actor or actress has been defamed by the other.

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If they rule that Heard defamed Depp and/or that Depp defamed Heard, they must decide on how much compensatory and punitive damages to award.

With respect to Depp’s claim, the jury must decide if three specific statements in Heard’s Washington Post op-ed were defamatory:

- “I spoke up against sexual violence – and faced our culture’s wrath. That has to change.”

- “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”

- “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.”

With respect to Heard’s claim, the lawsuit focuses on statements made by Depp’s former lawyer Adam Waldman in The Daily Mail. Although the comments were not made by the actor, Heard argues that he said them on his behalf. The actress’s lawyer also made clear that she is not seeking $100 million in compensation, and only set that amount to send a message to her ex-husband.

In her case, the jury is asked if the following statements were defamatory:

- “Amber Heard and her friends in the media use fake sexual violence allegations as both a sword and a shield, depending on their needs. They have selected some of her sexual violence hoax ‘facts’ as the sword, inflicting them on the public and Mr. Depp.”

- “Quite simply this was an ambush, a hoax. They set Mr. Depp up by calling the cops but the first attempt didn’t do the trick. The officers came to the penthouses, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their stories straight under the direction of a lawyer and publicists, and then placed a second call to 911.”

- ”[W]e have reached the beginning of the end of Ms. Heard’s abuse hoax against Johnny Depp.”

For each of the six statements, the jurors are asked a series of “yes or no” questions to determine whether all the elements of defamation have been proven, such as “The statement was false” and “The defamation implication was designed and intended.” If “yes” has been answered to all questions, the jury must set an amount for compensatory and punitive damages.

On the final day of the trial, Depp’s lawyers asked the jury to assess Heard’s credibility, arguing the actress was the real abuser in the relationship. Meanwhile Heard’s lawyers claimed her statements were protected by freedom of expression, which is enshrined in the First Amendment of the United States Constitution. They argued that even if the jury did not believe the actress was a victim of sexual assault and physical abuse, if they found evidence of psychological or financial abuse, she would be protected by freedom of expression. The case is now in the hands of the jury.

The ruling, however, can be appealed. The case is being heard in Fairfax County District court in Virginia. This location has been chosen because The Washington Post is printed there and because the newspaper also has its digital servers in the town. But some lawyers have questioned Fairfax’s jurisdiction, given that both Heard and Depp are based in California. While it does not seem likely, the possibility of a new Depp vs Heard trial being heard in the next few years cannot be ruled out.