Johnny Depp's Team Had A Strong Final Week In Amber Heard Defamation Case But Slipped Up On One Crucial Witness's Testimony

By Jaimee Marshall··  13 min read
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This past week was the final week of testimony in the Johnny Depp v Amber Heard case in Fairfax, Virginia, where Depp is suing Heard for $50 million for defamation and Heard is countersuing Depp for $100 million for defamation.

At the time of writing, the jury has not yet produced a verdict and is set to resume deliberation on Tuesday, May 31. In the final week of testimony, we heard from many different witnesses and experts on the tiniest little details. Now that testimony has officially concluded, we can look at how the smallest details from the final week of testimony could have a big impact on the jury’s verdict. 

From Kate Moss testifying that Depp never pushed her down the stairs to an ex-TMZ employee implying that Heard was the one who leaked TMZ the video of Depp slamming cabinets, there's a lot to unpack from this week's court testimony. Both Depp and Heard retook the stand to give their rebuttal testimony. Camille Vasquez put pressure on Heard once again in another fiery cross-examination. Despite having an overall strong presentation of evidence and witnesses this week, Depp’s lawyers seem to have made a glaring error that may just cost them as the jury deliberates on a verdict.

Kate Moss Makes Surprise Appearance As Witness 

As we previously reported, Depp’s lawyer Ben Chew got visibly excited at the mention of Kate Moss in Heard’s previous testimony, in which Heard claims that she swung at Depp because she believed he was going to push her sister down the stairs. To support this belief, she cited a rumor she claims to have heard about Depp pushing Moss down the stairs in the ‘90s. Well, this opened up the door to previous bad acts, so Kate Moss was able to be called as a witness to settle this rumor. 

Her testimony, which was given via livestream video, was quite short and to the point. When asked about what had happened during their vacation at the GoldenEye Resort in Jamaica, Moss responded, "We were leaving the room and Johnny left the room before I did, and there had been a rainstorm, and as I left the room, I slid down the stairs and I hurt my back, and I screamed because I didn't know what had happened to me and I was in pain, and he came running back to help me and carried me to my room and got me medical attention." 

Chew dug a little deeper, "Did Mr. Depp push you in any way down the stairs?" "No,” said Moss definitively. "During the course of your relationship did he ever push you down any stairs?" "No, he never pushed me, kicked me, or threw me down any stairs," Moss stated. 

Kate Moss testified that Depp never pushed, kicked, or threw her down stairs.

Heard’s team declined to cross-examine this witness. While Moss’s testimony took all of just three minutes, it established that Depp was not violent with his previous partners and established that the rumor Heard testified to was false.

Digital Forensics Expert Says Heard’s Photos of Injuries Can’t Be Authenticated

Digital forensics expert and CEO of USAForensic Bryan Neumeister testified that none of the photos of Heard’s supposed injuries can be authenticated because of the manner in which the data was collected. Upon analyzing the EXIF data, which is the code embedded into photographs that reveals what has been done to them as well as a ton of other information about the photos, many of the photos Heard submitted had been run through a photo editor.

The first photo he presented was of Amber Heard with a bruise on her arm taken as a bathroom mirror selfie, but which obscures her face. While this image was submitted as evidence of an incident where Heard claims she was hit in the face, there are three versions of the photo and the EXIF metadata shows that it has been run through Photos 3.0, an editing software program. “All three of these photos had to go through some type of transformation to change sizes,” Neumeister said.

Neumeister presented several other photos of Heard’s face appearing to be bruised, and the EXIF data on all of them revealed that they had been put through a photo editor, which is why the line of code that shows the operating system it was taken on does not say iOS 3.9.1 but rather Photos 3.0. Two photos Heard presented as being photos taken at completely separate times were actually two versions of the exact same photo. He testified that this image had been altered in some way, and while he offered the opinion that the colors seem to have been skewed, this was objected to by Heard’s lawyer as being outside of the scope of his expert testimony. 

Neumeister was grilled on cross-examination but did not budge. While Heard’s lawyer tried to get him to say it’s not his testimony that Amber Heard intentionally manipulated photos with a yes or no, he responded, "I understand you're trying to control the narrative, but there's no way to answer that scientifically because given the evidence we were given there was no way to positively or negatively answer that, it's not a question that can be answered.” After the question kept being repeated and even the judge demanded that Neumeister answer with a yes or no, he maintained his testimony that it’s not a yes or no question and stated that it’s incorrect to say that Heard did not modify her photos.

Ex-TMZ Employee Testifies for Johnny Depp

The viral video of Depp slamming kitchen cabinets in 2016 was recorded on Heard’s phone but ended up on TMZ’s website as a TMZ exclusive. How did this happen? Well, ex-employee Morgan Tremaine just testified that TMZ received regular tips on where Heard would be appearing for her deposition in her divorce proceeding as well as where she would be showing up to airports and that they should prepare to get shots of her allegedly bruised face. These tips mostly came from news producers and were verified as credible because TMZ uses an extensive verification process. 

Tremaine testified that TMZ regularly received tips from publicists, managers, agents, lawyers, and B-list celebrities, which seemed to be a dig at Heard herself. While Tremaine did not explicitly testify that he received the video taken of Depp directly from Heard, he testified as much without using those exact words. He said that on August 12, 2016, he received a direct tip through their email tip line of the video that Heard recorded. However, Tremaine states that the full video he saw played in the courtroom was not the video he received. 

The implication is that TMZ received a direct tip from Heard, who wanted to bulk her side of the story.

The video TMZ received was edited to cut out the beginning and end snippets which showed Heard setting up the camera and snickering at the end. Tremaine testified they were the only media outlet to post this video because they owned the copyright to it. When Camille Vasquez asked how TMZ can obtain copyright on a video, Tremaine testified that the only way to obtain copyright is if they shot it themselves, if it was sent through their tip line and source-verified that it was from the original copyright owner, or either purchased or given to them from the copyright owner as a direct source. 

Tremaine testified that it can take a while to post tips that they receive because they need to extensively verify the media sent to ensure that the person sending it is the copyright holder and that TMZ would have the legal ability to air and distribute it. The follow-up question from Vasquez was, “How long does it take for TMZ to obtain a copyright over something received directly from a source?" to which Tremaine answered that it was “something in the realm of 15 minutes.” Vasquez then asked, “How much time had passed from the time you received the kitchen cabinet video to the time it was posted on TMZ?” Tremaine answered decisively, “About 15 minutes.” The implication here is that TMZ received a direct tip from Amber Heard herself (as the copyright owner), who wanted to leak the video to bulk her side of the story. TMZ tried to file a motion to prevent Tremaine from testifying to protect their confidential source, but Judge Azcarate denied it.

Did Depp’s Lawyers Make a Mistake and Get Crucial Testimony Thrown Out?

Jennifer Howell is a former friend of Whitney Henriquez, Amber Heard’s sister. She’s the CEO of a nonprofit organization known as The Art of Elysium. While this testimony has been highly anticipated by Depp supporters who have been following this case for years, the actual testimony we got was incredibly underwhelming. People took to Twitter, noticing that something seemed to have gone wrong, as almost her entire testimony was missing. Howell had previously given a written declaration in the UK trial when Depp was suing The Sun, in which she made several very damaging statements against Heard’s case. 

She was a crucial witness who could impeach Whitney’s account of the “stairs incident” where she and Amber allege that Amber had to swing at Depp to prevent him from pushing Whitney down the stairs. We could hear the very start of Howell’s deposition in which she says about Whitney, "I loved someone who I know is doing something very wrong and I know that they're doing it because they're trying to protect their sister and I'm trying to protect her.” However, that’s about all of the juicy information we get before the testimony is cut off. Referring to her written declaration, Howell had stated that Whitney worked for her nonprofit organization and came to live with her in 2015. 

The declaration reads, "When Whitney arrived, she was a mess. Whitney told me she tried to stop her sister Amber from hitting and attacking Johnny on the stairs. Whitney said when she tried to intervene to stop Amber from going after Johnny, Amber nearly pushed her down the stairs. She told me she was worried Amber ‘was going to kill Johnny.’”

Howell continued, “She told me she had endured that kind of abuse her entire life, first from her father, and then from Amber, who she said was extremely violent. She lived with me because she did not feel she could go back to live at the Eastern Columbia Building. My father reminded me this morning that I told him that ‘Whitney had moved in with me because she was terrified of her sister.’" This is a pretty damning impeachment of Whitney’s claim that Depp hit her and Amber on the stairs and that this was the reason she had to go live with Howell. 

However, it doesn’t end there. Howell states that Whitney and Johnny kept in touch while she was living with Howell and they called each other "brother" and "sis." "Whitney said to me on multiple occasions that she did not know why he was staying in the relationship nor why he was putting up with Amber's abuse. Whitney shared with me the damage endured by both her and Amber as children and the injuries she suffered from Amber both psychologically and physically."

Howell claims that at one point when Whitney had come back from New York, she told Howell and others in the office that Amber freaked out, attacked her, and threw a glass of wine at her in an elevator. Another crucial detail in Howell's declaration was that while Heard and Depp were in Australia, she says Whitney was in the office "sitting in the black and white chairs near the kitchen and loudly proclaimed, 'oh my God, she has done it now. She has cut off his f**king finger.'" 

None of it was admissible in the Virginia court because Depp’s legal team made a legal blunder.

If you think this looks bad for Heard and Henriquez, you’re absolutely right. Unfortunately, none of it was admissible in the Virginia court because Depp’s legal team appears to have made a legal blunder. Criminal defense attorney Andrea Burkhart did some digging and discovered that there is a specific court rule in the state of Virginia that dictates the process you need to go through to get these statements admitted in the courtroom. Superior Court Rule 2:613 states that for Depp’s team to have addressed the prior statements, two specific conditions must have been met. The first is “in examining a witness in any civil or criminal case concerning a prior oral statement, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and the witness must be asked whether the statement was made.” 

Burkhart points out that Depp’s team failed to do this even though they asked Henriquez if she knew Howell and if she confided in her. They did not specifically ask her if she made these previous statements which made the statements she made to Howell inadmissible. Secondly, to introduce extrinsic evidence of prior inconsistent oral statements of a witness, another condition should have been met. This evidence is not admissible “unless the witness is first given an opportunity to explain or deny the statement and the opposing party is given an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.” 

The rule goes on to add that “extrinsic evidence of a witness's prior inconsistent statement is not admissible unless the witness denies or does not remember the prior inconsistent statement. Extrinsic evidence of collateral statements is not admissible.” This resulted in a tragic omission of this crucial testimony in the Depp v Heard case. Unfortunately, Howell’s testimony was mostly thrown out and the jury will not be made aware of these prior statements. 

Closing Thoughts

There were some really big moments in the last week of testimony that are sure to leave a lasting impression in the jurors’ minds. While Depp has a strong case and a hefty amount of evidence and witnesses on his side, it’s unfortunate that such a big blunder was made at this crucial point. They could have shot down Heard’s only witness to Depp’s alleged violence, but without that information the jurors will have to decide for themselves if they found Whitney to be a credible witness. 

Now that testimony has concluded in this case, there is nothing to do but wait it out until we get a decision from the jury.

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