What Do We Hear in Depp v. Heard?
As you probably know—whether you want to or not—the jury reached a verdict earlier this summer in the trial between Amber Heard and Johnny Depp. The trial, in the Fairfax County Circuit Court in Virginia, involved defamation and counter-defamation claims by the two actors. Heard published a 2018 op-ed in The Washington Post in which she claimed to be “a public figure representing domestic abuse.” Depp sued her for defamation, she counter-sued, and a seven-week spectacle of celebrity, misogyny, and power followed, in which Depp substantially prevailed.
What does a close listening to Depp v. Heard tell us about this particular trial, as well as about sex and power in the courtroom more generally?
Depp v. Heard did not just randomly become a media circus. As Joanne Sweeny noted in Slate, the judge made two procedural rulings that led to the ensuing frenzy—and greatly tipped the scales toward the plaintiff. Firstly, the judge allowed cameras in the courtroom to broadcast the proceedings. The Code of Virginia leaves this decision largely up to the court’s discretion, but also stipulates that coverage of “proceedings concerning sexual offenses” is prohibited. Despite the content and high-profile nature of this case, Judge Penney Azcarate decided to proceed with the broadcast.
Azcarate’s decision is strikingly at odds with the court’s emphasis on silence and decorum. Court order CL-2019-2911 stated, for example, that “Quiet and order shall be maintained at all times. Audible comments of any kind during the court proceedings … will not be tolerated.” In fact, Azcarate interrupted proceedings during trial to tell courtroom spectators to keep their mouths shut. During trial, extraneous noise is heard not just as uncivil but as a threat to impartiality and fairness. However, according to the judge’s logic, this threat is only perceived within the courtroom.
This brings us to the second procedural ruling of consequence here. Despite the frenzy enveloping the case, Azcarate decided not to sequester the jury. Jury sequestration involves the members of the jury being isolated from public and press during a trial, in order to avoid accidental or deliberate exposure to outside influence or information. Video from the courtroom flooded the internet and, as commentators have argued, likely and unduly influenced the jury, who were not isolated and prevented from accessing TV or social media. As Depp’s legions of supporters raged online, social media effectively became part of his legal team. This work was done in great part through sound.
Social media online commentary forensically dissected Heard’s oral testimony, noting changes in her breathing patterns or her speech cadence. Often they would hone in on the fact that she “exhale[d] erratically,” or “can talk so fast,” as seen in this Entertainment Tonight compilation:
The online jury adjudicated on all these vocal elements as proof that she was lying. One internet article described her in audiotape evidence as “cackle[ing] like a witch” and alternating between “laugh[ing] hysterically” and using a “baby voice.” Heard’s detractors took her voice as proof that she was emotionless, robotic, calculated, too well-rehearsed—but also that she was chaotic, nervous, crazy.
In contrast, commentators described Depp’s voice as “calm,” “calming,” and “soothing,” with Tik Tok users hash-tagging ASMR to audio of him. One fan even posted a ninety-minute ASMR video of his testimony. Multiple Twitter users claimed that “you can hear the pain” in his voice, from an audiotape admitted during trial. At other times, he is applauded for “giggling” and laughing during the trial, with fans hearing it as evidence of his authenticity and “kind soul.” One YouTube commentator, Grandma WHOa, writes that they wish he would record an audiobook so they could “listen to his calming, sexy soothing man voice.”
So far, so predictable. These are well-established, recognizable patterns about how we hear men’s vs women’s voices in public life—e.g. critiques of Hilary Clinton’s shrill, whiny voice. But listening in to the trial also reveals that this isn’t just a case of online fan culture on overdrive. Instead, it shows how broader social dynamics around gender and power don’t just create outside noise, but are built into formal legal practice within the courtroom.
Much of the conflict here follows a common pattern in defamation cases involving sexual violence claims, with questions around who gets to be a victim (see in my forthcoming piece in HAU: Journal of Ethnographic Theory titled “The Tone of Justice: Voicing the Perpetrator-as-Victim in Sexual Assault Cases”). Depp claimed to have suffered through the defamatory statement and through a longer history of abuse by Heard. His fans framed him as a hero and a victim, using the social media hashtag #HeardIsAnAbuser. On the other hand, they refused to believe Heard’s claims of having suffered abuse. This determination was based at least in part on Heard’s vocal performance and courtroom testimony, with detractors hearing duplicity in her exhalations, her rapid pace, the occasional firmness and confidence of her tone. As one Depp supporter commented on a video of Heard’s testimony, “There’s no way a victim sounds like this.”
Yet in a key strategic move, Depp’s lawyers chose to make Heard sound precisely as sexual assault victims often do during trial. Seeking to dismantle her credibility, they looked to the toolkit of how to deal with a victim in court, mobilizing a well-worn set of legal techniques used to interrogate survivors of sexual violence. In one cross-examination, for example, the plaintiff’s counsel declares that Heard’s “lies have been exposed to the world multiple times.” This claim is then manifested through a series of vocal disciplinary tactics to undermine Heard’s testimony and depict her as a false witness.
For instance, the lawyer, Camille Vasquez, repeatedly employs a common interrogation technique of speaking over and cutting off Heard as she is replying to a question. As legal scholars and sociologists have shown, such techniques are often used in sexual assault cases to intimidate and shape perceptions of the complainant. In a pioneering study on courtroom talk during rape trials, Gregory Matoesian, in Reproducing rape: Domination through talk in the courtroom (1993) describes how lawyers reproduce patriarchal relations of dominance and subordination by “usurping” the witness’ ability to respond (186). As he notes, questions—wielded like weapons of attack by skillful lawyers—are more powerful than answers.
Vocal technique and dynamics are key here. In Vasquez’s cross-examinations, she repeatedly raises her voice to interrupt Heard, disciplining her before the jury and spectators. She laughs at her testimony and infantilizes Heard, at times speaking to her in calm tones before quickly shifting to a harsher timbre. At one point, Vasquez snaps her notes shut and walks back to her seat while Heard is still answering her question. Heard is forced into abrupt silence. Unable to respond to the question she was asked, she audibly loses control of the narrative being spun. Vasquez also frequently speaks over her and directly to the judge, objecting that Heard is being non-responsive. The lawyer performs for the judge and jury her refusal to listen to Heard.
At other moments, Vasquez’s voice and affect telegraph exasperation, as she audibly sighs while Heard attempts to answer a question. As Heard and Vasquez go back-and-forth over a line of questioning, Vasquez’s voice bristles with irritation as she speaks in clipped tones, with sharp inflection at the end of each line: “Yes?” “Right?” “Yes or no?” These interjections add an aural layer of interpretation to Heard’s testimony in real-time, guiding the jury to hear the witness as evasive and therefore unreliable. Vasquez’s expressions are all part of a careful vocal strategy, implicitly saying to the jury, “Can you believe this woman?”
Of course, the answer is no. Jessica Winter, writing in The New Yorker, points out that Heard lost in part because of her “tearless crying,” the fact that she appeared insincere. Winter acknowledges that successful testimony is about “affect and presentation”, a reality that is no secret. In fact, jury instructions in Depp v. Heard clearly state that determinations of witness credibility are based in part on witnesses’ “appearance and manner.” Jurors must use their “common sense” to “determine which witnesses are more believable.”
But how is “common sense” established? Listening closely to this trial reminds us that such understandings are constructed and regulated through sound as well as through determinants of “appearance and manner,” both in and out of the courtroom. Vasquez’s performance, Heard’s subordinated testimony, and the commentary of millions of avid consumers underline that Heard and Depp sound to many people exactly as common sense and conventional norms would dictate.
A woman claiming abuse and assault at the hands of a more powerful man is always subject to patriarchal ways of listening, even if she is rich, famous, straight, and white. These ways of listening are contradictory. Research shows that “masculine” voices are heard as more authoritative and dominant, while women are often heard as weak, uncertain, lacking confidence. The public ear hears other racialized and gendered voices through similar power inequities, including queer, nonbinary, and LGBT voices or voices of people of color. In the context of sexual assault adjudication, however, Heather Hlavka and Sameena Mulla show in their Law & Society Review article “That’s How She Talks”: Animating Text Message Evidence in the Sexual Assault Trial” “that a confident voice and calm performance can work against a victim-witness in court, by suggesting that she is not passive or meek enough to be a ‘real’ victim.” On the other hand, they note that a victim-witness who cries on the stand may give the impression of performing or acting. Lawyers audibly manipulate these perceptions, as the examples here show, and men (particularly heteronormative, white men in positions of power) reap huge benefits from them.
Many observers of Depp v. Heard have noted the toxic social media sludge around the case, as well as the danger that the verdict poses to survivors of domestic abuse and sexual assault. But listening closely to the proceedings shows us that these outcomes aren’t random and aren’t just part of informal processes like trial by Tik Tok.
Instead, formal court proceedings manipulate and mobilize social scripts around survivors of sexual assault and domestic violence, and around women and marginalized others, to reach their outcomes. We can hear how this strategy plays out through sound and voice, from sighing and interrupting to laughter and silence. The jury instructions in Depp v. Heard state that “Our system of law does not permit jurors to be governed by sympathy, prejudice, or public opinion.” But despite claims that the legal system is based on objectivity and impartiality, we can hear that the law never exists in a bubble – and lawyers often and successfully rely on this very fact.
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Featured image: “Courtroom” by Flickr user Karen Neoh, CC BY 2.0
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Nomi Dave is a former lawyer, interdisciplinary researcher, and co-director of the Sound Justice Lab at the University of Virginia, where she is Associate Professor of Music. She is currently co-writing and co-directing a documentary film, Big Mouth, on a defamation lawsuit connected to a sexual violence case in Guinea.
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REWIND!…If you liked this post, you may also dig:
“People’s lives are at stake”: A conversation about Law, Listening, and Sound between James Parker and Lawrence English—Lawrence English and James Parker
Vocal Gender and the Gendered Soundscape: At the Intersection of Gender Studies and Sound Studies—Christine Ehrick
Or Does it Explode?: Sounding Out the U.S. Metropolis in Hansberry’s A Raisin in the Sun—Liana Silva
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My Voice, or On Not Staying Quiet
Welcome to Next Gen sound studies! In the month of November, you will be treated to the future. . . today! In this series, we will share excellent work from undergraduates, along with the pedagogy that inspired them. You’ll read voice biographies, check out blog assignments, listen to podcasts, and read detailed histories that will inspire and invigorate. Bet. –JS
Today’s post comes from Binghamton University sophomore Kaitlyn Liu, former SO! intern and student in SO! Editor-in-Chief J. Stoever’s English 380W “How We Listen,” an introductory, upper-division sound studies course at Binghamton University, with a typical enrollment of 45 students. This assignment asked students to
write a 3-page biography of your voice. You may choose to organize the paper and tell the story however you wish, as long as you consider your experience in light our classroom readings and conversations. . .Here are some questions to help you get started. You do not need to answer all of them, but they may lead you toward some important realizations that you can share through this paper: Have you thought critically about your voice before this class? Why or why not? If so, when did you first become conscious of your voice? Why?What do you love about your voice? Why? Who were your models for learning how to speak and style your voice? Have you ever wanted to change your voice? Why or why not? Have you? Have you liked or disliked your voice at some times in your life more than others?
For the full assignment sheet, click Voice Biography Assignment_F18. For the grading rubric, click Voice Biography Grading Rubric_F18. For the full Fall 2018 syllabus, click english-380w_how-we-listen_fall-2018
While the course usually seats mainly juniors and seniors, Kaitlyn was only a freshman when she wrote this powerful piece!
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The first joke I can recall took place in fourth grade; then again, I am unsure why it is easier to call it a joke rather than its true word, which I learned only three years ago. Perhaps, given the fact that an eight-year-old is typically still protected from most forms of racism, the fact that I could only categorize this statement as a joke back then is what propels me to do so again as a college student.
I remember that he hadn’t even formed words, he simply yelled out sounds. He pulled on the corner of his eyes and did his best impression of an Asian man’s accent from across the room, letting the whole class know his perception of my race. Ten years later, I realize that this incident was just the start of a lifelong endurance of misjudgment, bigotry, and the largely unwelcome narration of my life.
“Empty Chairs,” Image by Flickr user Renato Ganoza (CC BY 2.0)
In tenth grade, I applied for a student exchange program my high school had recently undertook called Community Wide Dialogue. The program involved my suburban school pairing up with an urban school nearby to discuss, and hopefully dismantle, racist ideals within our city. Although there is no explicit definition of the word “suburban” that details an overwhelming whiteness of its residents, this seems to be the case more often than not. After being accepted into the group, I attended our school’s first informative session about the program. Walking into the room, I quickly noticed that of nearly twenty-five students, I was the only minority they had accepted. I remember thinking to myself, Is this the best they can do? Am I a token minority here? My school had, albeit scarce, minority representation; why weren’t they included?
Being a minority in a program specifically designated for alleviating such ideals meant that I felt very discouraged from speaking in a setting where discussion, specifically from the point of view of minorities, was essential to the goal. I found it was often the white males of both groups speaking for minorities. One day, we studied vocabulary pertaining to racism; this is when I first learned that the term “color blindness” was actually quite racist, as opposed to its intended meaning. Additionally, this is when I first learned the word for what I had been hearing my entire life: microaggressions. My experience suddenly became real; what I had been calling “jokes” was racism.
I felt validated. Being Chinese-American, I am lucky to be protected from more extreme forms of racism that members of the African-American or Latinx population may face. Similarly, I am a minority, but in contrast, I am not perceived as a threat. I am not, as Sandra Bland was, a cause for a repulsive increase in the ease of extending an official white hand. I will never be the tragedy that causes Regina Bradley, a Black professor, to cautiously check herself in order to abide by her grandmother’s warning: “don’t attract attention to yourself.”
The most extreme racism I have endured lies in statements similar to: “Of course you did well on that test!” The only thing that surprised me is that these statements never came from strangers or acquaintances; instead, it was always my closest friends who felt comfortable enough to cause my own sense of discomfort. The most harmful thing about microaggressions is that it is socially unacceptable for the victim to verbalize their being affected by these hurtful phrases. When a victim acknowledges they are hurt, perpetrators are quick to cast their pain aside as hypersensitivity, working to further marginalize them while justifying their own discrimination.
Staying quiet had everything to do with who I was: a female and a minority. I let my intelligence show through my writing and my academic performance. Even if I wanted to speak, I was aware of the little relevance my voice had to others, particularly boys. As Kelly Baker remarks in “Listen to the Sound of My Voice,” “teenage girls were supposed to be seen, but when they spoke they had to master the right combination in order to be heard.” Of course, just like Baker, I, along with several other females, never could master this cultural puzzle.
“Quiet” by flickr user heyrocc, (CC BY 2.0)
I took after most girls when I say that I tended not to speak much in class so as not to make boys uncomfortable by letting them into a female’s darkest secret: I was smarter than most of them. My teachers knew, of course, but they rarely mandated that I spoke out loud. I developed an especially close relationship with my English teacher of two years; he was one of the teachers who had the most insight into my thoughts as written in formal assignments. In other words, he knew my capabilities.
In my second year of his class, he announced that there would be a slam poetry unit in which each student had to write a five-minute poem regarding something they felt strongly about. Most students were quick to write about their perception of the injustice of the school system. I assume this topic was popular due to it being deemed “safe,” meaning the majority of students had the exact same beliefs, and because, as I alluded to before with my deep, dark secret, who would want to make anyone uncomfortable by saying something meaningful?
I decided I would. I could have easily written a poem about a neutral subject that still would have been much more memorable than the others in the class, but my teacher had a faith in me that I decided I would not disobey by lowering my standards for the sake of my classmates’ comfort, so, I did it. I talked about being Asian.
“Poetry Slam,” Image by Flickr user Ländle Slam (CC BY 2.0)
I started the poem with quotes of microaggressions I have heard during my life. It’s said that opening with a joke can lighten the mood, and that was what these sayings were to them, right? I had judged their reactions rightfully; the crowd laughed at the pure absurdity of most of these quotes. When I turned the subject of the poem to how it made me feel, however, is when the class went silent. My voice shook until I reached the third page. I ended up winning the class award for that poem, but do not let that fool you into the amount of eyes that refused to meet mine when I finished speaking.
Their embarrassment is how I knew it had worked. People can cast away a few comments or corrections, but given a platform and five minutes of speech that can not be interrupted, people have to listen. More importantly, they have to listen to me. One of the rules the teacher had put in place regarding our poetry slam was that listeners had to ask each speaker questions after they read their poem in order to receive credit. Our school’s pride and joy, our white, male, three-sport athlete valedictorian, was the first to raise his hand.
“How often do you hear these jokes?”
“Three to five times a day,” I responded loudly, bluntly.
There were no follow up questions.
The word got around. I had people coming up to me and asking me about the poem they had heard about; they began to call it the “Asian poem.” I noticed immediately that the microaggressions stopped, and when a friend witnessed one of the very few I encountered afterwards, her mouth dropped, looking at me to say, “It’s just like the poem!”
My voice had officially become my own through… poetry? I had never considered the ability to find my voice and, in turn, myself through a writing form that I thought to be obsolete. I began writing poems about everything- immigration, love, mental illness, sexual assault- and what was most important is that I was praised. As a Chinese teenage girl, I was heard. I was heard by my classmates, by SUNY Oswego, by Ithaca College, by Scholastic. I realized that poetry could better consolidate and portray my thoughts on a topic than a simple speech. It was the art of speech, the cunning of rhyme scheme and line breaks that finally made what I had to say captivating to others because my skill was admirable. It was an acquired learning, figuring out what to cut, where to end, when to eliminate punctuation to portray certain emotions- it was a combination I actually enjoyed solving.
I ended up using this poem for my college application. I distinctly remember handing in a rough draft of what I thought to be the epitome of a college essay only to have my teacher promptly return it, saying, “You should use your poem instead. That is what is going to show your writing skills- not the typical college essay.” She gathered two other English teachers of mine to consult over the idea. Poetry was not the safest choice for a college application. One of the essay prompts on the application was very vague, simply claiming that the selection of this prompt would indicate that your writing was an explanation of something that the you felt was too important to leave missing from the rest of your application. The four of us easily came to a consensus: this was what colleges needed to see. Call it affirmative action, but I firmly believe it was the quality of my writing–the way it carries the sound and the force of my voice–rather than the subject that got me where I am today.
My secret was finally out; I have shit to say.
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Featured Image: “Voice” by Flickr User Laurel Russwurm (CC BY 2.0)
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Kaitlyn Liu is a sophomore at Binghamton University with an intended major of English Literature with a concentration in rhetoric. Kaitlyn takes interest in writing about gender and race along with other intersectional classification systems. She has a passion for nonprofit work, including her previous work with student writers to raise funds for Ophelia’s Place, a nonprofit that provides support for those impacted by body image. Kaitlyn has also been awarded two gold keys for her writing through the Scholastic Art & Writing regional contest. Outside of writing, Kaitlyn enjoys reading historical fiction and singing for Binghamton’s oldest co-ed a cappella group, the Binghamtonics.
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REWIND!…If you liked this post, you may also dig:
Vocal Gender and the Gendered Soundscape: At the Intersection of Gender Studies and Sound Studies — Christine Ehrick
On Sound and Pleasure: Meditations on the Human Voice– Yvon Bonefant
As Loud As I Want To Be: Gender, Loudness, and Respectability Politics — Liana Silva
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