The Legal Intelligencer - 'Depp v. Heard'—The Differences Between Criminal and Civil Cases

Griesing Law


As the Irish wit Oscar Wilde keenly observed “The pure and simple truth is rarely pure and never simple;” especially when litigating defamation cases. It is unusual that the social media, cultural zeitgeist is captured by civil litigation. Nevertheless, throughout April and May, the world was enamored by a civil trial in the commonwealth of Virginia’s Fairfax County Circuit Court captioned, Depp v. Heard, No. CL-2019-2022. To be sure, there have been previous contenders for the title of “trial of the century;” however, the vast majority of these cases (think, Minnesota v. ChauvinFlorida v. Anthony, and of course, in the 20th century, The People of the State of California v. Simpson) have all been criminal in nature.

While there are some similarities, civil cases have significant differences from their criminal counterparts. In this article, I want to briefly highlight some of the characteristics of civil litigation that were prominently displayed on our social media feeds this spring in the context of the dueling defamation claims brought by Johnny Depp and Amber Heard.

Potentially 2 Avenues of Claims and Appeals

In a criminal case the state (typically in this context referred to as the prosecution) will be the only party asserting claims. In a criminal case, the state always has the burden of proof, the criminal defendant is not required to present evidence, and the criminal defendant cannot be compelled as a witness. Moreover, in a criminal case, the double jeopardy clause of the Fifth Amendment to the U.S. Constitution prevents the state from appealing an acquittal.

In a civil case, it is fairly common for both sides to bring claims (just as Depp and Heard both brought defamation claims in their dispute). When this happens, both sides of the litigation have independent burdens of proof for their respective claims and both sides will therefore need to present affirmative evidence establishing their claim. Additionally, a civil defendant can typically be compelled to testify and a non-prevailing civil party can always appeal (so long as they have grounds to legitimately do so).

Elements of a Claim and Burdens of Proof

In both civil and criminal contexts, the party with the burden of proof (the civil plaintiff, defendant pursuing a counterclaim or the prosecution in a criminal case) will need to prove various “elements” that, when taken together, encompass a claim or crime. For example, to prove defamation in the state of Virginia the Depp v. Heard litigants needed to establish: an actionable statement (which is a statement that is (a) false; and (b) defamatory); publication of the statement; and the requisite intent. See Schaecher v. Bouffault, 290 Va. 83, 91 (2015). The “requisite intent” changes depending on the plaintiff’s status in the community—if a plaintiff is a wholly private person, the intent requirement is low; however, because the First Amendment of the federal constitution protects free-flowing commentary about people in the public eye, if the plaintiff is a public figure (such as a celebrity or a politician), the plaintiff will likely have to show that the defendant acted with “actual malice.” In this context, actual malice means that the defendant knew the published statement was false or acted with reckless disregard for the truth. See WJLA-TV v. Levin, 264 Va. 140, 155 (2002).

Anyone who has seen a criminal courtroom drama knows the applicable burden of proof in a criminal trial is “beyond a reasonable doubt” but in civil trials, the plaintiff has a lower evidentiary burden. In the typical civil case, the plaintiff must prove his or her case “by the preponderance of the evidence,” which essentially means “more likely than not.” Despite this typical rule, certain claims require some elements to be proven by an evidentiary standard that is greater than the preponderance of the evidence, but less than the beyond a reasonable doubt standard. This third standard requires a plaintiff to prove a given element by “by clear and convincing evidence,” and is often applicable to elements of the claim that relate to the defendant’s frame of mind.

  • Taking everything together, to prove defamation in Virginia the Depp v. Heard litigants needed to establish that a given statement was:
  • False and defamatory by the preponderance of the evidence;
  • The statement was published by the preponderance of the evidence; and

Because both litigants were celebrities, the defendant acted with “actual malice,” by clear and convincing evidence.

In light of the above, despite the hours of legal analysis discussing Depp’s and Heard’s respective credibility, “credibility of the defendant” is not an element of defamation. Rather, credibility is typically something discussed in reference to someone’s believability as a witness. In other words, even if the jury generally perceived Heard to be not credible, Depp still could have lost his defamation claim and Heard could have prevailed on hers.

While the public’s focus on credibility may have been somewhat overstated, credibility underscores an overarching distinction between criminal and civil cases. In a civil case, it is often the wronged party directly bringing the suit, whereas in a criminal case, the government brings a claim on behalf of a victim. In short, in a civil case, the jury will very likely hear directly from the plaintiff and the defendant. And, in that context, perhaps it is likely that “general credibility” becomes a defacto element to any claim.

As for the Depp v. Heard case specifically, Heard has publicly stated that she plans to appeal the verdict. Thanks to some recent changes to Virginia law, Heard can file an appeal with Virginia’s intermediary appellate court, the Virginia Court of Appeals. To do so, she will need to file a notice within 15 days of the entry of a final judgment. While a verdict was entered in early June, the judge has yet to enter a judgment on the verdict as the parties are engaged in post-verdict settlement discussions. While there have been many contenders for “trial of the century,” the Heard and Depp dispute may be the sole contender for “appeal of the century.”

Reprinted with permission from the July 6, 2022 issue of The Legal Intelligencer. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.