Law&Crime Sidebar - BONUS EPISODE: Top Differences Between UK and USA Depp v. Heard Trials

Episode Date: June 4, 2022

*THIS IS AN EPISODE OF THE OBJECTIONS PODCAST REPURPOSED FOR SIDEBAR*Renowned Court Reporter and the host of Law&Crime’s “Objections” podcast Adam Klasfeld explores the top differences between the U.K and U.S. Johnny Depp v. Amber Heard cases. Klasfeld also explains where they tread similar ground. Klasfeld is joined by Swedish criminologist Teresa Silva, who wrote a peer-reviewed academic article criticizing a U.K. judgment finding that it was fair to call Depp a "wife beater," a ruling she called a "miscarriage of justice." Klasfeld is also joined by prominent U.K. barrister Gavin Millar, who noted that British defamation law tends not to be friendly to the press.SUBSCRIBE TO OUR OTHER PODCASTS:Court JunkieThey Walk Among AmericaCoptales and CocktailsSpeaking FreelyLAW&CRIME NETWORK SOCIAL MEDIA:Instagram: https://www.instagram.com/lawandcrime/Twitter: https://twitter.com/LawCrimeNetworkFacebook: https://www.facebook.com/lawandcrimeTwitch: https://www.twitch.tv/lawandcrimenetworkTikTok: https://www.tiktok.com/@lawandcrimeSee Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Wonderly Plus subscribers can binge all episodes of this Law and Crimes series ad-free right now. Join Wonderly Plus in the Wondery app Apple Podcasts or Spotify. Agent Nate Russo returns in Oracle 3, Murder at the Grandview, the latest installment of the gripping Audible Original series. When a reunion at an abandoned island hotel turns deadly, Russo must untangle accident from murder. But beware, something sinister lurks in the grand. views shadows. Joshua Jackson delivers a bone-chilling performance in this supernatural thriller that

will keep you on the edge of your seat. Don't let your fears take hold of you as you dive into this addictive series. Love thrillers with a paranormal twist? The entire Oracle trilogy is available on Audible. Listen now on Audible. One of the losers, if the people perceive that what happened in the decision is not fair, it's going to be our justice systems. And this is not only the United States. I mean, this is, the trial is being broadcast to the world and it's the lack of trust in institutions that should be sacred. Welcome back to objections. A podcast that is always relevant, never hearsay and sometimes argumentative. I'm your host, Adam Classfeld reporting for law and crime. The jury has spoken. Handing Johnny Depp can be safely described as a resounding victory

and his ex-wife Amber heard a crushing defeat. Even if it's technically a mixed verdict, the jury made clear that they broadly disbelieved Hurd's allegations of domestic abuse and saddled her with a massive financial penalty that she may not be able to pay. Their findings stand in stark contrast to those by a British judge

in London less than two years ago. On this episode of objections, we examine what the saga of Depp and Heard says about the UK and U.S. justice systems, how they differ from each other, where they tread similar ground, what both trials say about how we treat allegations of domestic violence and why some folks are unlikely to agree with any court's findings. Both of the interviews in this episode were taped well before the verdict was announced, and it's startling how relevant both remained the day after it shook

the world. Our story begins with a small academic journal unaccustomed to public attention outside its specialized field. The Journal of Forensic, Psychology, Research, and Practice isn't the sort of publication that often goes viral on the internet. Then last summer, the journal published an article by a Swedish academic, Professor Teresa Silva, who wrote an article with the unassuming title, Assessment of Credibility of Testimony in Alleged Intimate Partner Violence,

a case report. The case report in question was the UK defamation trial, by Johnny Depp. Depp supporters hailed Dr. Silva's conclusion that a British high court judge got it wrong when he ruled that it was fair to call Depp a wife-beater. It quickly became the journal's most popular article, twice as widely read as any other piece listed on the journal's website. When I reached out to the associate professor at Mid-Swedon University, Dr. Silva told me, it is always interesting when research can transcend the walls of academic institutions. The professor said she came to out Amber Hurd's allegations when she saw the photographs of her alleged bruises in TMZ.

The first thing that really impact me was the photographs that was published on 7th, the May 27th of 2016 in TMZ, right? When there is a clear picture of Amber Hurd that there is no injuries on that face. And she's trying to say that they're injuries. So on that moment, you say, wait a minute, something is wrong here? Who is this person? Right? So this is more or less the curiosity of the researcher, of the psychologist saying, who is this person? Why is she trying to present herself and portray herself with something that is clear that does not exist? So that was when started my curiosity in going in the case. And with all my due respect, for misheard. I think that she's a fascinating case within the forensic psychology. So myself and

with my students also, I start to analyze who this person is. And that's where I came inside the case. And I just continue, continue, continue, because the case has so many things that are so interesting. The more she researched, Silva said, the more surprised she became that a British high court judge ruled against Depp. We cannot have this type of miscarriers of justice that I understood as a miscarriers of justice the rule of the English judge. The judge found that 12 out of her's 14 domestic abuse allegations met the civil standard of proof.

And Silva said that she wrote the article to come up with a system to help courts assess credibility. I got shocked in saying what it was not clear here. So I developed the article. And I wrote the article in order to say, okay, if we do a structured assessment of a structure assessment of the case to look at the validity of the statement, the statement of misheard, we can clear come up to the conclusion that she has a low credibility. And I wrote the article as a main way to say we need to implement. this type of assessments within the justice systems because our justice systems are very vulnerable to individuals. And if you want, I discuss that in a purposefully or non-purposefully way

may decide to the system. Explaining the UK system is Gavin Miller, a prominent British barrister who recently represented the Guardian's investigative journalist Carol Cadwallader when she was sued over her reporting the Cambridge Analytica scandal. As he points out, UK law isn't exactly easy on news organizations or reporters accused of defamation. Well, I suppose by comparison with America, the biggest obstacle we have here is that we don't have a written constitution. So we don't have the equivalent of the First Amendment and free speech guarantees that are given to American journalists and American media organizations by the First Amendment. And we probably have a culture in the courts that's quite pro-claimant, or as you would call it, quite pro-plaintiff.

Cases are determined by judges. We don't get to try them before jurors, as is happening in the Depp and Herd trial. And judges can be quite favourable to claimants, the plaintiffs in this country. So there are a lot of obstacles in the way of journalists and newspapers in this country. The biggest single obstacle in defamation is the presumption of falsity and the presumption of damage. So journalists here, who have the same principle defense as in America, which is truth, have to take on quite a burden in this country of proving truth. And often that's impossible to discharge or impossible to discharge successfully.

So when Depp sued the Sun in the UK, the Pirates of the Caribbean actor was in friendly territory, at least in theory. He did not have to prove his innocence. The British tabloid had to prove that they didn't defame him. And according to a high court judge, they met that heavy burden. But that's a key difference between the US and UK systems when it comes to civil defamation. Only the United States guarantees a jury trial, at least when there's a lot of money involved. And as I say, there are no jurors, so you have to persuade a judge who is an experienced lawyer, that you can make your way through all that complicated and intricate law to establish that your right to freedom of speech should win out over the claimant's rights to protect

their reputation. And sometimes that's very difficult to do. One of the most important differences between the two trials is that in the United States, TV cameras let the public see everything. That's not a very British approach, as Mr. Miller notes. Did he follow Johnny Depp's lawsuit against the Sun when that was happening in the UK? Yes, I not only followed it, but at the time it was going on, I was in the same building, two or three courts down, defending a different defamation action, and spent the same period coming in and out of court and meeting all the debt fans and seeing all the hysteria that went on outside. side of court. And it was quite a, it's quite an interesting contrast for me having experienced

personally the progress of that trial in the High Court in London to watch the equivalent proceedings or similar proceedings going on in America and to see the differences between the two types of proceedings. And it's not just the absence of a jury, the way in which the advocates act the way in which the, obviously the way in which the court is filmed and streamed and put online, make it a very different sort of trial to our trial. It's a very different spectacle. And there are lots of elements of the trial that are very different to the trial he had here. The amounts of damages being claimed are substantially bigger, which is always the case in America.

And the role of the judges and advocates is very different. It's much more restrained here. You know, of course, you or your viewers couldn't follow the debt trial in England because we don't allow cameras in court. We don't even allow courtroom artists get this who is sitting watching the proceedings and doing drawings for the nighttime news to do the drawings in the building. They can't do it in the courtroom. They can't do it in the building.

They have to memorize what's going on, and they have to go outside the court building and do the court drawing for the newspapers and the media. We had a very high-profile liable trial last week and the week before in this country involving two wives of very famous football players suing each other. And one of the biggest issues that raged on social media and in the mainstream media was how bad the courtroom sketches were of the advocates and the judge and the protagonists.

So you don't have any of those problems in America. In America, and I've been transfixed by the streaming of the trial on law and crime, you get to see the whole thing as it happens. Dr. Silva, the Swedish criminologist, praised how the U.S. handled transparency in the courtroom because so much of the debt and her drama goes beyond the cold record, she noted. I think that we are in a turning, pointing time in many things, and I mean, the transparency is everything, right? If we had access only to the, to reading the transcriptions of the trial, I am quite sure that we will not have the same feeling and perception that we have now. All the theatrical way, for example, that Hammer heard when she was on the stand displayed for everyone,

we could not perceive this from the transcript only. For the professor, just looking at the TMZ photos undermines Hurd's testimony that Depp was so physically abusive to her to make her fear for her life. When I asked Dr. Silva how she could make such a judgment from looking at a photo, she sounded incredulous. Adam, this is not rocket science. It's just common sense. Look at the photos of Amber Hurd. There is only one photo in which it is visible that, or it's credible that is a breeze that is the photo of the arm when she photographs the arm. But the rest of the photos, as the police said, no, there is no, there is no bruises on there.

I have also to say that before I was a psychologist and academic and et cetera, I worked for years as a nurse practitioner, three of them in emergency room. I have seen many people, many people have seen people with injured face because of trauma. I have seen women. I have been with that women. I know what painful it is for them, that you touch anything. I know how painful is for the nose, even if it's not broke, to clean the scaps because the noses, bleed. I know what it is the pattern of injuries in the lips. I have been with these women. I have been treating them, calming their pain. That face of Amber heard in any of the photos she shows injuries of the type of injuries that she describes, right? There is a bleeding lip that we see

in one of the photos. There is a small bruise below one of the eyes. that I also seen in the photo that is more compatible with someone that just make a small beak on the skin. But there is not the pattern of injuries that we see in women who had been terribly abused as I saw them and they had to treat them. Amber Hurd's allegations against Depp are graphic, and there's no middle ground between the former couple's account. In the most extreme accusation, Heard claimed that Depp raped her with a liquor bottle during a three-day bender when Depp was allegedly hopped up on eight to ten pills of ecstasy.

Depp vehemently denies this and claims that Heard was one who assaulted him with a bottle. He claims that Heard threw a vodka bottle at him, which allegedly shattered and sliced off his fingertip. Dr. Silva drew from her experience as a nurse practitioner here too in explaining why she didn't believe, Heard's sexual assault allegation. It must be very hard for someone, really, for someone that has been sexually abused

in the ways that they were heard has said. People do, perhaps they cannot conceive children because of the enormous injuries that they have because they were raped with objects. I saw them in the hospital. I mean, you cannot imagine what is the injuries patterns of injuries that these people can have right with the bottle is terrible right so the women that have experience and that type of violence and and some men too right that have been i have

been talking with some men i have been interviewing some men that have been victims and and they arrived to points in their life when in their process of victimization in in they see in which they think, well, better if I die, better if I don't, I'm not here. So you see suicidal ideation in many of these people. So I think that might be very terrible for these people to see someone trying to portray what they have experienced in a such false way. There are several other differences between the U.S. and U.K. approaches. Since the U.K. has looser hearsay rules, the judge there,

examined pieces of evidence kept from the jury in the United States. And the same is true in reverse of the UK jury. It is the case. We have moved to a system here where it's much easier to reduce hearsay evidence in civil proceedings in this country. In fact, it's much easier that it is to reduce it in criminal proceedings as well. America still retains quite strict evidential laws about hearsay evidence. So, yes, you can get much more of that in this country. The issue about it, obviously, is what weight can you give to hearsay evidence?

How valuable is it, given that it's secondhand? You're not getting the person who originated the evidence in the witness box in front of the jury or in front of the judge, giving the evidence and giving the account of that issue of fact. So it's less weighting. The reason we let it in here is because of this fundamental distinction that you have jurors given the job of trying the facts and finding the facts, and we have judges to do it. So what's assumed here is a judge is going to be much more competent and able to disregard worthless, hearsay evidence, and give it its proper weight and not overvalue it and not be. persuaded by it, if it's not reliable, than a jury. And that's the, that's the reason we have more hearsay here, because judges try cases. There are many other differences in the way

evidence is let in. Here, the primary rule is, is a particular piece of evidence irrelevant or is it prejudicial to a party? If it's irrelevant, the judge weren't let it in. if it's in some way overly prejudicial to a party, the judge won't let it in. When Depp and Hurd's divorce finalized, Herge pledged to donate her entire $7 million settlement to two charities, the American Civil Liberties Union and the Children's Hospital, Los Angeles. That vow left a big impression on the UK judge, who cited it as evidence that Herd wasn't a quote-unquote gold digger.

But the U.S. trial showed that Hurd only paid a fraction of the amount that she pledged. That sort of evidence about whether she made the donations really goes to her credit. And we also control very carefully evidence that goes to credit. There's been a lot more evidence in the American trial about those issues, the donations, than there was in the trial here. I think it's going to her credit. Did she lie in the past when she told people she'd made the donation? Depp's case, of course, is that she wasn't telling the whole truth there because the money wasn't delivered up in one go. And in America, the lawyers have really gone into the nitty gritty of that. You know, what payments were made when, by whom, why were they delayed?

Was it the tax reasons and all that sort of stuff? You wouldn't probably wouldn't have it being gone into in that much detail in this country. But the principle is the same that you can look at evidence that's not directly relevant to the issues in the libel trial to try and attack a witness's credit or a party's credit for something they've said that you want to say isn't true, that it shows they're not a truthful person. And it's very interesting how a piece of evidence like that or an evidential issue like that can take on a life of its own in a piece of litigation like this. To me as a lawyer, it's a long way removed from the central issues in the case. But you know how lawyers work

and they think if they've got a piece of evidence like that and they can make something of it, They work its death. So death as a sort of example of her not being true for witness. And Herds' lawyers then countered by saying, oh, no, no, she's a really virtuous person. She made a very generous promise, and she's in the process of seeing it through. U.S. judges also allow testimony from expert witnesses more frequently than their UK counterparts. During Depp and Herd's U.S. trial, the two engaged in what legal observers call a battle of the experts. A forensic psychologist, retained by Depp, diagnosed Heard with borderline personality disorder and histrionic personality disorder.

A psychologist retained by Heard called Depp a narcissist. Orthopedic surgeons for both sides provided competing explanations for how Depp lost his fingertip, and metadata experts presented different views on whether Heard altered her photos. That sort of wrangling didn't happen in the U.K. You really are putting your finger on the big difference between the two cases. I mean, that's another one, which is a very big difference between the two cases and the two systems. Our courts are very, very reluctant to admit expert evidence. Our judges recognize that trial lawyers like me love a piece of expert evidence.

You know, it's a great tool to have in your armoury as a trial. lawyer, particularly in front of a jury, but also in front of a judge, that you can call somebody who you can say has all this expertise, and therefore, you know, that you should take their evidence very seriously, you should regard it as accurate and insightful and well rehearsed and well put in the witness box. And you can achieve a lot through putting in expert evidence, that you hard achieved just by factual evidence. You can take shortcuts. You can say, you know, somebody is unreliable or somebody is suffering from mental ill health or something like that. Or you can get experts on financial transactions to say, well, they're a bit dodgy or that they're sound or

whatever. Here, the courts worry about this because they see trials going off down alleyways of contests between experts where they really want to concentrate on the factual evidence. And they also don't think experts are as experts as they claim to be in a lot of things. In this country, there's quite a lot of judicial skepticism about whether witnesses who are really are as experts as they're set out to be. And that's partly because we've had a lot of miscarriages of justice in this country, where experts who claim to be very knowledgeable floated quite contentious evidence, and it later turned out to be inaccurate.

And in some cases, even, that they were charlatans, you know, and their evidence, their expertise wasn't well-founded. So the courts here have a recent history of stepping back from expert evidence. It's very difficult to get it in. And when I watch the trial in America, I am surprised at how much expert evidence is called, and how much expert evidence the jury is allowed to hear. And I do wonder to myself what the jury make of it, you know,

are they seduced by the qualifications of a witness? For Dr. Silva, the U.S. system casts her entire field of forensic psychology in a bad life. It's terrible. I think that every normal person that is not within the field, I mean, we'll look at us, we just cannot believe us, whatever we say, right? I think that is what a person who is, not within the field thinks about it. Some experts have presented this,

oh, scientific studies say, scientific studies say very careful how we present scientific evidence for people who do not understand what scientific evidence is, because you can manipulate it, whatever you want, right? The statistics is all, well, depend, it's half full or half empty, right? But it's half, and it depends very much.

So you can create big confusion, confusion, manipulates the evidence without, and this should not happen in our justice systems. Well, from my point of view, the problem is the justice system itself that should change. I mean, experts should be something, order it by the court, not by the parts, to not have this. I mean, we are there to figure out the truth. At the end of the day, the U.S. and U.K. trials boil down. to a different set of facts. Depp sued Hurd over a Washington Post editorial

published in December 2018, in which she described herself as, quote, a public figure representing domestic abuse. The editorial was published one year into the Me Too movement, which Dr. Silva commented on in her article. I mean, for the movement

and for the whole society, my concern is and always has been the victimists. And what in my gut felt so terrible is what it can represent for the victims. Look, I was in 2000, I was in Spain, in the streets, trying to fight for laws that protect the victims. In that case, women, because we were on that moment not alert for the fact that men can be victims too. This was something that I learned in my practice years after. But on that moment, we were on the streets, we were trying to fight.

And I think that a Me Too movement, when it started, had a very, it was very clear that that was the proposed, right? And it's what we should do, but also within the justice systems, is to protect the victims, to solve, to prevent that this happen again, right? So for me, it's a terrible stay-back for the victims, not for the METU movement. I mean, I'm not interested in political movements. I'm really concerned in what it can represent for victims, but for every victim, for men victims, for women victims. And what we learn from can we deceive just the justice system, I mean, if no consequences come out, if I like, and I have in and I'm not accountable for my lies well next time I will lie again or the person that comes from me and the individuals that then we already fight with the lack of trust in law enforcement in in everything that we do so if we do not have if it if we don't strengthen with with accurate and with fighting for the truth as much as possible at the end really It's another power in our societies that just doesn't work.

On top of assessing Depp's defamation claims, the Virginia jury will assess whether he defamed her when his lawyer Adam Waldman described Heard's allegations as a hoax. Depp's asked for $50 million. She's asked for $100 million. When the U.S. jury finally reaches a verdict in Depp v. Heard, we may never know why the jury found the way they did. Their verdict form will only reveal liability and a number.

That's quite different from what happened in the UK. In 129 pages, the UK judge laid out the evidence and arguments supporting a dozen domestic abuse allegations against Depp systematically. Those detailed findings will follow Depp no matter what the U.S. jury decides. For many, it is a damning and devastating document of Depp's guilt for critics like, like Dr. Silva, it shows how a single high court judge got it wrong and forever stain a man's reputation in the process. The difference between the two systems that we're very interested in is that you get verdicts in America in civil trials, in jury trials, but you don't get the full reasoned

judgment that we have in this country from a judge who's tried the case and finds the facts and finds the law. So if you want to know why Amber Heard won the libel case in London, you can go to the judgment and it's very long judgment and erudite and detailed by a very clever judge who listened to the evidence and then went away and thought about it and knows the law backwards. And you can read it like a book. You can read exactly what the reasoning was. We wonder how reliable the outcomes are in America when jurors tried cases because you don't. don't get that sort of reasoning. You don't get a judgment. And so, you know, in the Galane Maxwell trial, for example, we, you know, last year we were all sat here and ponded, well, why did

the jury find the way they did? Because you never really know that with the jury trial. And it's one thing to have that in a criminal case. It's very counterintuitive for us to see it happening in a civil case, because we haven't had civil jurors here for a very long time. Even if courts on both sides of the pond reject Depp's case, Dr. Silva says that she's confident about her conclusions. If the jury ultimately finds an Amber Hurd's favor, would that make you question some of the conclusions you've reached about this case? No. No, I mean, not at all.

It's the only thing that I can say. I mean, as I tell you, I mean, I'm not. really think that she has a problem, that she was used by the movements that exactly were trying to come up with the laws in the United States. So and trying to potentiate the movements for women, et cetera, she was used. She was used because she was married with Johnny Depp, and Johnny Depp was a really great figure to say, okay, we are going to bring is done. And I mean, the case about the defamation, if they find and all the requirements that the Virginia state requires for defamation and etc., that's a legal aspect that the jurors

must decide upon, but the core of the case, I think it's decided. for a long time. And one final question on the flip side, if the jury finds in Johnny Depp's favor, will you feel some sense of vindication? No, too.

I mean, there is, and I think he told this, there is no winners. There is losers. And I think that both of them had already lose. I mean, both of them are going to be with the label and with the load for their lives.

of what, of what, of what, everything that has happened, right? Besides their own process of destruction inside their marriage, the process of destruction of the trials is for both of them. So there is no winners, but there is both are losers, I think. Gavin Miller, who has argued numerous defamation cases, agrees on that point. Usually at the end of a libel trial, nobody wins. I mean, I know somebody wins. But in reality, the process is damaging for both sides.

It is just in the nature of libel and libel trials. When you turn the inside out and look at these issues in a libel trial, it tends to be damaging in somewhere or other to both sides. And there's something, although I practice in this area and I do a lot of it, there's something very sad often and worrying about libel trials. Not all of them, but many of them. And in a way, this case is, it is sad that it's come to this and that this case is playing out in the way it is. And the stress and the damage that's being done to both sides through the process.

We know it happens. We know why it happens with defamation trial lawyers. We wouldn't make a living if people fight out cases like this. But it's not a very happy experience, not a very pleasant experience. And I'm afraid my abiding feeling about the trial in America is it's even, it's even tougher in a way than the one here it's even more painful to watch to listen to extended interviews with dr sylva and mr millar please visit the objections youtube page you can also check out daily trial coverage on the law and crime network law and crime.com and law and crime

sidebar hosted by anginette levy and jesse weber many thanks to the law and crime team our producer Sam Goldberg and our guests, Teresa Silva and Gavin Millar for joining us. The music is hoist by Andy G. Cohen. I hope you enjoyed the show. Tell your friends and family, please subscribe and write a review on Apple, Spotify, wherever else you get your podcast. You can binge all episodes of this long crime series, ad free right now on Wondery Plus. Join Wondery Plus in the Wondery app. podcasts or Spotify.