Johnny Depp Trial: Depp may lose case even if Amber Heard flops on the stand, legal experts say

FALLS CHURCH, Va. - Actress Amber Heard’s "performance" on the stand last week — that's what Johnny Depp's legal team has called it — has been widely panned. But that may not be enough to give her ex-husband Depp a victory in his defamation case against her, experts told Fox News Digital.

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Trial consultant and body language expert Susan Constantine analyzed Heard’s turn in the witness box and gave her a thumbs down for believability. 

"She is not truthful and most of what she’s saying is a lie," Constantine said in her estimation.

"This is such bad acting, I don’t know how she’s going to get a movie role after this."

Depp, 58, is suing Heard, 36, for $50 million over a 2018 op-ed she wrote in the Washington Post identifying herself as "a public figure representing domestic abuse." 

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Although the piece didn’t reference Depp by name, he claims it destroyed his career and turned him into a Hollywood pariah.  

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Heard is countersuing for $100 million, accusing Depp and his former lawyer of conspiring to defame her by calling her abuse allegations a "hoax."

Heard spent two days on the stand last week chronicling Depp’s alleged acts of verbal, physical and sexual abuse that she says left her with a broken nose, black eyes and bruises.

In agonizing detail, Heard described how Depp allegedly raped her with a bottle of Maker’s Mark in a drug-fueled rage on a trip to Australia in March 2015.  

But many critics have called out her tearless sobbing and melodramatic tone as inauthentic.

Heard’s facial expressions and body movements are incongruent and so exaggerated as to be "off the scales," Constantine said. She added that the "Aquaman" star recounts too many extraneous details that trauma victims typically wouldn’t remember — especially six or more years after the fact. 

"Liars give you too much information," she said. 

But that doesn’t mean that everything Heard has said isn’t true, Constantine noted. 

"I think that when she described the headbutt, she was being truthful," she said, referring to Heard’s allegation that Depp launched his head into her and choked her unconscious during an 2015 argument at their penthouse.

"I do think he was verbally degrading at times," she added.

First Amendment lawyer George Freeman, director of the Media Law Resource Center, said that Depp has a steep hill to climb to win the case. The "Black Mass" actor has to prove not only that Heard’s statements are false but that she knew they were false when she made them, Freeman said. 

He also has to convince the jury that her accusations actually damaged his reputation.

"When a public figure sues, it's much more difficult to win," Freeman explained. "He has to prove what was going on inside her head, that she knew she was lying." 

A private person only has to prove negligence or carelessness to prevail in a defamation case.

Heard’s lawyer, Ben Rottenborn, has argued that Depp also has to prove that Heard was actually referring to him in the op-ed. If he does, the jury only has to find that Depp verbally abused Heard once for him to lose his defamation case, the attorney has said.

But civil and matrimonial lawyer Marilyn Chinitz disagreed, countering that the op-ed clearly referenced Depp and a domestic violence claim Heard publicly made against him two years prior.

The "London Fields" star, with bruises on her face and paparazzi in tow, went to a Los Angeles courthouse to obtain a restraining order against Depp in May 2016, accusing him of bashing her in the eye with a cellphone. 

"It’s a clear line of saying that Depp abused her physically even if she didn’t use his name," she said. 

Chinitz added that the case will come down to the cross-examination of Heard and whether Depp’s legal team can undermine her to the point that the jury won’t credit any part of her testimony. 

The trial in Fairfax County Circuit Court in Virginia went dark this week for a pre-scheduled break but will resume Monday with Heard back on the witness stand. After her testimony wraps, her lawyers plan to call Depp back to the stand as well as his ex-girlfriend, Ellen Barkin, and Amber's sister, Whitney Heard, but not necessarily in that order, according to a source close to her team.

Both sides have accused each other of physical and verbal abuse and presented witnesses, audio recordings and photographs that have bolstered their respective claims. 

Depp, who has called Heard the abuser in their relationship, testified that she hurled a vodka bottle at him, severing the tip of his finger during an infamous Australia blowup in 2015.

"I think they’ve both damaged themselves in this lawsuit," said Chinitz, who represented Tom Cruise and Michael Douglas in their respective divorces. "You don’t get a favorable feeling about either of them."

Heard’s countersuit, alleging that Depp defamed her by calling her abuse claim a hoax, suffers from similar obstacles, said criminal and civil attorney Mark Bederow.

Heard’s team must prove that Depp, not his lawyer, was actually behind the disparaging comment.

"But even if one party prevails, it will be a pyrrhic victory," Bederow told Fox News Digital. "Both of their reputations have been severely damaged on the public stage." 

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