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Judge · Fairfax County Circuit Court

Penney Azcarate

Courtroom still of Penney Azcarate.

Fairfax County Circuit Court judge who presided over the Depp v. Heard civil trial.

2022 Defamation Trial Apr 11 – Jun 1, 2022
8,957 lines 169 proceedings 69 highlights

About

Penney Azcarate presided over the 2022 Depp v. Heard trial, managing witness testimony, evidence, courtroom procedure and the time allotted to each side. She struck Gina Deuters’s testimony after Deuters acknowledged watching trial clips, and she resolved disputes over which exhibits and deposition excerpts the jury could consider.

When Heard moved to strike Depp’s claims at the close of his case, Azcarate denied the motion as to two challenged statements and took the first under advisement. After further evidence, she denied the motion as to the first statement as well, finding a question for the jury rather than deciding it herself. During deliberations, she answered a jury question by clarifying that its falsity inquiry concerned the op-ed headline, not the entire article. She returned an incomplete verdict form for the required damages entries and, after the jury’s verdict, reduced Depp’s punitive damages award from $5 million to Virginia’s $350,000 statutory cap.

Trial Record (169)

169 proceedings

2022 Defamation Trial Apr 11, 2022 – Jun 1, 2022 169 proceedings

Day 0

Jury Selection Jury Selection 5 1,010
Summary

Jury selection before Judge Azcarate: hardship excusals, individual voir dire on pretrial publicity, and attorney questioning of the 21-person panel.

Highlights (5)
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Day 1

Colloquy Post-Testimony Exhibit Rulings and Juror Contact Issue 2 30
Summary

Judge rules on admissibility of text message exhibits 163, 210, and 214, then addresses a sidebar report of a juror waving at Johnny Depp.

Highlights (2)

Day 2

Day 3

Colloquy Witness Struck, Front Row Rule Set After Eve Barlow Incident 3 65
Summary

Judge Azcarate strikes Gina Deuters' testimony after she admits watching trial clips, then bars non-legal-team from front row following Eve Barlow's note-passing.

Highlights (3)
Quote

“From now, on the front row, it's only legal team, okay? No family on front row for either side. I said only legal team in the front row. There's plenty of seats in the courtroom.”

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Quote

“Ladies and gentlemen, the Court is striking Ms. Gina Deuters' testimony, in its entirety, from the record; therefore, the Court further instructs you, the jury, to disregard her testimony in its entirety.”

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Day 9

Colloquy Exhibit Rulings Before Officer Saenz Deposition 2 43
Summary

Pre-deposition sidebar resolves exhibit admissibility for Officer Saenz testimony; incident report admitted, injury photos excluded for lack of foundation.

Highlights (2)

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Day 17

Colloquy Photo Metadata Ruling; Deposition De-Designation Dispute 1 24
Summary

Judge sustains objection to Heard's photo metadata exhibits and rules Heard's team may continue de-designating deposition clips under the 61-hour time constraint.

Highlights (1)
Quote

“I can't -- I can't require her to use the originals that you based on. Just because you're doing this all by depositions, it's just a very strange case. But it's their case, I allow the de-designations, okay?”

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Day 18

Colloquy Preliminary Matters — Pennington Photo Timestamp Ruling 2 41
Summary

Court signed a juror order and ruled on admissibility of photo timestamps for Raquel Pennington's deposition, distinguishing iPhone display data from extracted metadata.

Highlights (2)
Quote

“Actually, you keep saying metadata. This actually isn't metadata. This is just from an iPhone, which I can go in and I can change my listings for these on my iPhone, and it will show up as a different date and different location. Metadata is something that is extracted from the phone and is with the file, and it would show that I had changed the location. That's metadata, so ...”

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Quote

“when they send judges to computer forensic school down in Alabama, these things happen.”

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Day 19

Colloquy Preliminary Matters — Alpaca Photo, TikTok Incident, Rebuttal Ruling 2 44
Summary

Judge reprimands Chew for violating her photography order near the courthouse, discloses a TikTok balcony incident involving courthouse staff's children, and limits Bercovici to rebuttal.

Highlights (2)
Quote

“One of the kids posted it on TikTok, I found out this morning. It's been removed from TikTok and nobody can go on that balcony again for the duration of this trial.”

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Colloquy Sidebar: Bercovici Rebuttal-Expert Designation 3 25
Summary

Post-lunch sidebar in which Heard's team argued Bercovici should testify beyond rebutting Frost; Judge Azcarate upheld her prior ruling that he is a rebuttal expert only.

Highlights (3)
Quote

“Definition of rebuttal expert is that they rebut an expert from the other side, correct?”

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Colloquy Expert Qualification — Social Media Forensic Analysis 3 10
Summary

At sidebar, Judge Azcarate clarified that voir dire is for expert qualification only; Dennison conceded no objection, and the court admitted Heard's social media expert in open court.

Highlights (3)

Day 20

Day 21

Colloquy Defense Rests; Motion to Strike Counterclaims Denied 2 115
Summary

Defense rests; judge denies Depp's motion to strike Heard's counterclaims; sidebar resolves disputes over six late-identified rebuttal witnesses before jury enters.

Highlights (2)
Quote

“It is not my role to measure the veracity or weight of the evidence. The force record in the Virginia Supreme Court have made it crystal clear that actual malice is a question for the fact-finder; so therefore, the plaintiff's motion to strike is denied.”

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Quote

“all of a sudden, I heard Kate -- I thought of Kate Moss on the stairs. That gave a negative connotation, and even to me, I'm like, Oh, does that mean that something happened with Kate Moss on the stairs?”

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Colloquy Sidebar — Dr. Kulber Admissibility and Scope 2 67
Summary

Sidebar resolves Dr. Kulber's admissibility as a rebuttal witness; court limits his testimony to the state of Depp's hand after the March 2015 finger surgery.

Highlights (2)
Quote

“the only thing they can talk about is the pin -- they did the surgery, pin, and soft cast. That's all I should hear.”

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Quote

“She was an expert witness. How would she not have anything to rebut? So no. The answer's no.”

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Colloquy Defense Evidence Proffers for the Record 2 22
Summary

Defense counsel Nadelhaft proffers excluded testimony and exhibits from nine witnesses and the UK judgment for the appellate record, all barred on hearsay grounds.

Highlights (2)

Day 22

Colloquy Preliminary Matters — Rebuttal Witness Rulings 3 80
Summary

Sidebar rulings admit Beverly Leonard for limited impeachment, restrict Kate Moss to staircase testimony, and exclude Dr. Collins and Bryan Neumeister as rebuttal experts.

Highlights (3)
Quote

“I don't find that it's a collateral matter in this matter because Ms. Heard testified that she always does self-defense, she only hits in self-defense”

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Colloquy Rebuttal Expert Exclusion; Depp Returns to Testify 3 66
Summary

Post-recess sidebar excludes Dr. Collins as rebuttal expert; Neumeister ruling deferred to noon; defense discloses Hughes and Heard as rebuttal witnesses; Depp recalled.

Highlights (3)
Quote

“All the case law I've ever read says you can't use an expert to rebut lay witness testimony.”

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Colloquy Neumeister Scope Ruling; TMZ Intervention Denied 3 108
Summary

The court limited Neumeister's rebuttal testimony to photographs in evidence and their EXIF metadata, denied use of the UK trial judgment, and rejected TMZ's intervention motion.

Highlights (3)
Quote

“it's going to be extremely limited, as far as only photographs that are in evidence that he can opine on”

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Quote

“Whether that breaches a nondisclosure agreement between Mr. Tremaine and EHM is not germane to this matter and can be litigated in a separate matter, if EHM so chooses.”

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Day 23

Colloquy Sidebar: Scope of Heard Rebuttal Cross-Examination 3 52
Summary

Judge limits Vasquez's cross of Heard to rebuttal-case topics only, permitting TMZ, Kate Moss, and Baruch but excluding Neumeister photos and Beverly Leonard.

Highlights (3)
Quote

“You're going to limit it just to whatever evidence from your rebuttal case.”

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Quote

“anything that's tied to damages, we're not going to go back to 2009. Anything that's tied to damages.”

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Colloquy Jury Instructions Finalized; Closing Argument Ground Rules 2 237
Summary

After Heard rests her counterclaim case, the court finalizes contested jury instructions, approves the verdict form, and sets closing argument ground rules for the next morning.

Highlights (2)
Quote

“The only way they find defamatory statements in this case is if there's actual malice, and that's unique to this case; I understand that. But so if they find actual malice, defamatory statements, you don't have protected speech privilege.”

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Quote

“Merely linking to an article does not amount to republication, but adding content to a linked article may constitute republication. You must determine whether any added content was intended to reach a new audience. If you find it was intended to reach a new audience, it constitutes a republication.”

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Day 24

Jury Instructions Jury Instructions — Defamation Elements and Damages 4 32
Summary

Judge Azcarate reads final jury instructions on defamation elements, actual malice, and damages standards before closing arguments begin.

Highlights (4)
Jury Instructions Jury Instructions — Deliberations Begin Penney Azcarate 4 8
Summary

Judge Azcarate delivers final deliberation instructions, releases alternates Jurors 3 and 14, and sends the jury to deliberate in the Depp v. Heard case.

Highlights (4)
Quote

“It is rarely helpful for jurors, upon first entering the jury room, to take a straw vote or for any juror to make an emphatic expression of his or her opinion in the case, or to announce a determination to stand for a certain verdict.”

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Quote

“none of you should surrender your honest conviction as to the weight, or-effect of the evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.”

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Day 25

Colloquy Jury Question — Op-Ed Headline vs. Full Content 3 12
Summary

The jury asked whether falsity Question 43 applied to the op-ed headline or the full article; Judge Azcarate clarified it refers to the headline only.

Highlights (3)

Day 26

Colloquy Jury Verdict: Depp Prevails, Heard Wins Counterclaim 3 23
Summary

The jury unanimously finds for Depp on all three defamation claims ($10M compensatory, $5M punitive) and for Heard on one counterclaim ($2M); judge caps punitive at $350K.

Highlights (3)