Opening the Door


by Phil Fikes, Associate Attorney

Johnny Depp vs. Amber Heard, State of South Carolina vs. Alex Murdaugh, high-profile cases that have gone to trial in the last year and the whole world was able to tune in. Of course, the two are completely unrelated—one a defamation lawsuit seeking money to recoup the reputational harm done by a former partner, the other a double-murder seeking the conviction of a disbarred attorney and father for the killings of his wife and son. Being on opposite ends of the justice system, a common theme can be found in the two, best described by a phrase repetitively used during both trials: “opening the door.”

While civil and criminal proceedings are governed by their own sets of rules generally, once the cases reach trial, the evidence presented in these proceedings is governed by the same rulebook: the rules of evidence. Each states has its own set of rules, but those typically follow the federal rules of evidence, so there is a significant degree of uniformity across the country.

“Opening the door” and allowing certain evidence to come in and be presented to the jury is a phrase coined after Rule 404(b), which concerns “character evidence,” which is exactly what it sounds like: evidence of a person’s character or character trait. Generally, this type of evidence is inadmissible, and the jury will not hear evidence of a person’s character if it is offered for “propensity” purposes—to prove that “on a particular occasion the person acted in accordance with the character.” 

Often, witnesses will try to discuss prior “bad acts” of a party, which are typically inadmissible because they are usually offered for that propensity purpose. The goal is simple: they did something bad in the past, and they’re doing it again. The Court looks to prohibit this evidence because of how prejudicial this evidence can be to a party.

In Johnny Depp’s case, it was Amber Heard who “opened the door.” Amber’s contention throughout the trial was that Johnny abused her during their relationship, which she is certainly allowed to testify to from the stand. But things took a turn when she mentioned a previous girlfriend of Johnny’s: Kate Moss. Amber made a comment that when Johnny would act a certain way, she would immediately think back to Kate Moss, a former girlfriend of Depp’s, and how he had abused her. Johnny’s lawyers were thrilled when they heard this testimony from Amber, as Kate Moss was actually a close friend of Johnny’s and Johnny’s attorneys could now call Kate Moss to the stand to dispute Amber’s claims. At first, this evidence of Johnny’s “propensity” to abuse partners was off-limits, but Amber Heard blew the door wide open and Johnny’s attorneys walked right in. Kate Moss ended up testifying that this incident Amber tried to talk about wasn’t abuse at all by Johnny, and Johnny went on to get a judgment of $15 million from the jury.

Here we are again, with a highly-publicized trial being watched by the world, and this question of whether the “door has been opened” hanging in the balance. The Murdaugh case is complex, with all sorts of theories being presented. The jury must not only answer if Alex murdered his wife and son, but also why. If he committed these heinous acts, what explanation can the State of South Carolina offer as to why he would do it? The State presented a witness who was best friends with Alex Murdaugh’s son, who testified as to his communications with the victims on the day of the murders. But when the defense team cross-examined this witness, they asked if the witness could think of any reason why the defendant would murder his son and wife. I imagine this question was asked so that the witness could answer that he couldn’t imagine a scenario where the defendant could commit these acts, but the witness’s response served another purpose likely not anticipated by the defense: it opened the door. See, the prosecution’s theory involves this financial pressure that the defendant had hanging over his head, and that his money troubles and financial crimes he had committed played into him murdering his wife and son. This evidence of his previous “bad acts” was contested by both parties coming into the trial, but the prosecution knew they needed the defense to open the door before they could offer his prior bad acts. Now, with the defense asking about a potential motive, the prosecution is doing their best to walk into that potentially-opened door and offer their reason as to why the defendant committed these crimes.

One sentence from a witness creating an entire new trial, a daunting yet common reality for trial lawyers.