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Reforming Courtroom Live-Streaming Policies

Big Picture

Historically, the issue of allowing cameras in courtrooms has been highly controversial, with the First Amendment (right to public information), Sixth Amendment (right to a fair and public trial) and 14th Amendment (right to due process) commonly cited by both proponents and opponents. With prior approval from the presiding judge, the Depp v. Heard defamation trial became a significant case study for this issue. As the court of public opinion made up its mind, predominantly anti-Heard content bombarded every corner of the Internet. Journalists have pointed out that clickbait articles and videos that were entirely fabricated were spreading like wildfire at the time. The fundamental right for defendants to have an “impartial jury” was arguably seriously violated in this situation, especially because jurors of this case were not sequestered and could easily and unintentionally be influenced by external factors. It's been over a year since the trial. What can we learn from it?

Graphic From: The Mental Health Factor in DV Custody Cases: Survey of Lawyers. The National Center on Domestic Violence, Trauma & Mental Health. https://ncdvtmh.org/wp-content/uploads/2022/10/NCDVTMH_SurveyofLawyers_September2016.pdf. This figure illustrates how frequently mental health issues are weaponized in court, as the number of lawyers who indicated experiencing it in court 51-100% of the time accounts for more than 60% of the total number of respondents. 


Operative Definitions

  1. John C. Depp, II v. Amber Laura Heard (Depp v. Heard): A defamation trial in which actor Johnny Depp sued his ex-wife, actress Amber Heard, for $50 million in damages over her 2018 op-ed, in which she heavily implied being a victim of domestic abuse at the hands of Depp. Heard counter-sued for $100 million. 

  2. Borderline Personality Disorder (BPD): Forensic psychologist Dr. Shannon Curry testified that Heard suffers from BPD. It is one of the most commonly misdiagnosed personality disorders. Primary symptoms include self-image issues, an intense fear of abandonment and difficulty managing (predominantly negative) emotions and behaviors. As a result, despite wanting to have lasting relationships, patients (often subconsciously) push others away, leading to a pattern of unstable relationships.

  3. Histrionic Personality Disorder (HPD): Dr. Curry testified to Heard’s suffering from HPD. Patients are described as having an overwhelming desire to be the center of attention and often display inappropriate attention-seeking behavior.

  4. #MeToo Movement: The hashtag became prominent on social media in 2006 and later developed into a social movement that advocates for and empowers survivors of sexual harassment and violence to speak out against their abusers and share their experiences. 


Important Facts and Statistics

  1. Negative views against individuals who suffer from mental illnesses are directly proportional to the time spent consuming media content. The resulting harmful treatment of this population creates a vicious cycle where problematic symptoms become amplified after individuals refuse to seek treatment for fear of facing discrimination.

  2. Around 45% of lawyers believed that the mental health status of the survivors of domestic abuse was an unstated reason that influenced the case’s outcome.

  3. According to the National Alliance on Mental Illness, BPD is one of the most commonly misdiagnosed and heavily stigmatized mental health disorders. 

  4. Mental illness diagnoses, specifically BPD, have historically been used to discredit individuals in the modern day and age, regardless of whether the diagnosis is accurate. 

  5. It is challenging for people to change their minds once their initial decision has been made. In a study, people were presented with witness statements as evidence. A month later, they were told that these claims had been discredited. They fabricated stories to support their initial decision. 

  6. The public has attributed Depp’s behaviors to his struggles with substance abuse. In contrast, they have labeled Heard as a “psycho” or “manipulative liar,” especially after her BPD and HPD diagnoses were made public. 


Seven-Point Plan

(1) Require civic leaders and third-party experts to be included in determining whether the trials in question should be broadcast. 

Currently, in courts where broadcasting of a trial is allowed, the presiding judges decide based on arguments made by each side’s legal team. Broadcasts can be wide-reaching, and arguments during a televised trial can have significant social implications. However, the potential social impact of live-streaming the trials in question should be considered. The legal teams’ planned lines of questioning and arguments should be required to be provided to third-party leaders and experts beforehand.


(2) Require the inclusion of scientific resources if, and when publishing information about the diagnoses related to trials. 

As more information about the case becomes public, more viewers have commented on what Heard’s body language means, how the BPD diagnosis affects Heard’s reliability or justifying Depp’s behaviors. Descriptions of each diagnosis from reputable sources (e.g. the Diagnostic and Statistical Manual of Mental Disorders) and methods to seek professional help, should be included in articles related to the case to help combat the spread of misinformation and disinformation.


(3) Prohibit portions, if not the entirety, of trials where mental health diagnoses are used as arguments, from being broadcasted. 

Legal teams try to convince the jury of their side with a carefully crafted narrative of events. This is especially true for high-profile cases because they tend to be argued by high-priced, experienced lawyers, who design word choice, tone and delivery fashion to shift the jury’s perception and opinions. As a result, what is presented in court may be factual but highly biased and misrepresentative of the events that transpired. When arguments that use mental illnesses to discredit the opposing party are broadcast, the entire mental health community suffers from further stigmatization. These segments should not be televised; the courtroom should be cleared of nonessential personnel, and all recording forms should be temporarily halted during this time.


(4) Issue orders for both parties to undergo psychological assessments if one side chooses to bring up mental illnesses as an argument. 

With the gender stereotype and stigma around mental illnesses, the system can help level the playing field by requiring these examinations to be done for both parties if one side chooses to use the opposing party’s former diagnoses to discredit them. 


(5) Disallow the hiring of expert witnesses by legal teams of both parties.

To ensure the fairness of each trial, experts should not be allowed any form of compensation–monetary or otherwise–from either party during and after the trial process. The nature of transactional relationships creates bias and even a sense of loyalty toward the hiring party, which threatens the justice system's integrity. Lawyers should submit a request to the court for experts in specific areas, and the selection process should be modeled after the jury selection process. 


(6) Make jury sequestering compulsory in high-profile cases.

With technological advancements in recent years, news travels faster than ever, primarily if related to high-profile cases. As a result, finding truly impartial jurors with no prior knowledge or biases regarding the case is increasingly challenging. If not sequestered during these trials, jurors will probably be exposed to external factors–fan-made content on social media platforms or case discussions in public spaces–that can influence their decisions. This will lead to public distrust in the system and threaten the integrity of the cases, creating a potential avenue for criminals to not be held responsible for their crimes. 


(7) Educate future generations on ways to distinguish fact from opinion.

Future generations will rely more on social media platforms for their daily news updates, which have already been rising in popularity in recent years. Additionally, multiple studies have found that most Americans cannot distinguish between factual statements and opinions. Moreover, under the protection of the freedom of speech principle, regulating content published online is unlikely. Therefore, it is more important than ever to teach future generations how to identify trustworthy and opinionated articles.


Why This Initiative is Important 

With research finding challenges to changing people’s opinions and findings of people becoming quicker to judge with less information, the structure of trials creates an unfair advantage for the plaintiffs. Regardless of the trial’s outcome, sociologists have shared their concerns that this “he said, she said” trial can permanently damage the #MeToo movement and everything it represents. They are also worried that this publicized trial will become the blueprint for abusers to exert more control over their victims and serve as a way to discourage victims from seeking help. Even though the trial would have received lots of attention whether or not it was publicized, there is a significant difference between how compelling arguments are when watching footage versus reading transcripts. The harm that the case has caused so far could have significantly been reduced if it were not televised. 


Acknowledgment: The opinions expressed in this article are those of the individual author.


Sources

Davis, Norman. “Television in Our Courts - The Proven Advantages, the Unproven Dangers.” Judicature, vol. 64, no. 2, pp. 85–92, Aug. 1980.

Gerson, Jennifer. “Johnny Depp Trial Unlocks New Way for Abusers to Exert Power over Survivors, Experts Worry.” The 19th News, 23 May 2022, https://19thnews.org/2022/05/johnny-depp-amber-heard-trial-abusers-power-survivors/

Quick, Lori. “Juror Misconduct: Recognizing It and Raising It on Appeal - SDAP.” Sixth District Appellate Program, Sixth District Appellate Program, http://www.sdap.org/downloads/research/criminal/jmcdu.pdf

Resnik, Judith. “The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain).” Yale Law School, Public Law Research Paper No. 659, pp. 1-25, 22 Oct. 2018.

White-Domain, Rachel & Phillips, Heather. “The Mental Health Factor in Domestic Violence Custody Cases: Results From a Brief Survey of Lawyers who Represent DV Survivors.” National Center on Domestic Violence, Trauma, and Mental Health, pp. 1-28, Sept. 2016.


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