Over the past few weeks, many people have been paying close attention to the defamation lawsuit filed by Johnny Depp against Amber Heard. It was covered in-depth by traditional media outlets, but it also took social media by storm. Memes about the trial, and even reenactments of certain exchanges, went viral, and generated a tidal wave of anti-Heard/pro-Depp content.
As arm-chair attorneys blasted out legal analysis and tried to stir up support for one side or the other (but mostly for Depp), many people started to wonder if the jury would be able to remain impartial. Some suggested that they should have been sequestered.
Dressel/Malikschmitt thought it would be interesting to take a closer look at jury sequestration and the Depp/Heard case in particular.
What Happened In Depp v. Heard?
With so much attention paid to some of the more outrageous aspects of this case, it is easy to lose sight of what it was actually about. In short, Johnny Depp filed a defamation lawsuit against his former wife Amber Heard after she published an op-ed in the Washington Post describing the impact speaking out about sexual violence had on her acting career.
The op-ed didn’t mention Depp by name, but he claims it had a negative impact on his career. He says the op-ed defamed him because it was false, and that Heard acted with actual malice by writing it.
Heard counter-sued after Depp’s lawyers referred to some of Heard’s allegations as a “hoax.”
After hearing six weeks of evidence, a jury unanimously ruled in Depp’s favor. They awarded him $15 million in damages. But they also determined Heard was defamed by Depp’s lawyer, and awarded her $2 million in damages.
If this seems contradictory, that’s because it is. The jury basically said that nobody should say Heard was lying in her op-ed, but also determined that she was lying in her op-ed.
Commentators are suggesting the jury was confused, or was concerned what would happen to them if they went against public opinion and ruled against Depp.
Protecting a Jury From the (Social) Media Circus
Is it realistic to expect that the jurors followed the court’s instruction and avoided external opinions and discussion about the trial in the current media environment? Why wasn’t the jury sequestered? So far, there is not a clear answer to either of these questions.
We may never know what the jury was thinking about as it deliberated, or whether the media and social media coverage of the case impacted its decision-making. The identities of the Depp v. Heard jurors are being kept under seal for a year in order to protect the privacy of those who served. Once that time has passed, interest in this case will have waned, and there might not be any follow-up reporting.
Even if there is some follow-up reporting, it will be hard to determine if sequestering the jury would have been a good idea.
Proper sequestration requires housing the jury for the length of the trial, and preventing them from having access to any sort of media. No newspapers, no radio, no television shows that might reference the trial, and no social media. Sometimes, juries are even prevented from communicating with their friends and family members. As you may imagine, jury members do not like this, so judges are hesitant to order it. It can also be quite expensive.
Instead of sequestering the jury in the Depp v. Heard trial, the judge employed the much more common tactic of instructing the jury to avoid discussing the trial, consuming any news reports about the trial, or doing their own research on topics covered in the trial. Knowing what we know now about the intense interest in the trial, this may have been a Herculean task.
Intense Media Interest is Nothing New
This isn’t the first trial where concerns about intense media coverage and the public’s influence on a jury has come up.
In 1995, the OJ Simpson trial became known as the “trial of the century” thanks in part to the advent of cable news and the emerging 24/7 news cycle. The judge made the controversial decision to allow video cameras in the courtroom, which fed the country’s appetite for news about the case. Watching snippets of the trial, and the infamous Bronco chase, are some of our firm’s founders’ first legal-related memories. Jurors in the trial were shielded from the media coverage. In fact, they were sequestered for 265 days, the longest such period in American history.
Another “trial of the century” occurred right here in central Jersey. In 1935, Bruno Hauptmann was tried and convicted of kidnapping and killing the child of famed aviators Charles and Anne Lindbergh. The Hunterdon County Courthouse in Flemington was the site of the trial, which is often described as a media circus. To start, Hauptmann’s defense was paid for by the New York Daily Mirror in exchange for exclusive interviews. But they weren’t the only journalists covering the case. Every news outlet that could sent reporters to Flemington. Many stayed in the Union Hotel, which is also where the jury was sequestered. Miles of new telegraph and telephone wires were strung up to support the reporters. Radio broadcasts were regularly transmitted to a public eager for updates on the trial, and the judge even allowed cameras in the courtroom to capture footage for newsreels. The public appetite for information about the trial was endless, and new technology allowed the world to get close to real-time updates.
Depp v. Heard is probably not going to be remembered as a “trial of the century,” but it is one of the first trials to capture the public’s attention since the advent of social media and online video streaming. It’s the next iteration of a long line of cases where public interest and media innovations are feeding into one another.
Going forward, the Dressel/Malikschmitt team expects judges to think more about the impact social media might have on the cases before them. Cell phones are banned in New Jersey courts, but traditional media is allowed in the courtroom, and some proceedings are streamed online. Modern video editing tools could easily allow for clips from our courthouses to make their way on to social media platforms the way they did during the Depp v. Heard trial.
Sequestering more juries is unlikely to provide a solution. It would be impractical and unpopular to require it. A more realistic option is updating our jury instructions to address the online era. Jurors take their roles seriously, and we should respect their willingness and desire to serve as impartial decision-makers.
As in-person trials resume, Dressel/Malikschmitt is keeping a close eye on how New Jersey judges handle public interest in their dockets. We are proud of the work we do to help our clients navigate the law, and deal with the many ways it is changing. If you are in need of legal assistance, we are here for you. Please contact us today to schedule a meeting.