Herb Stein, Slate's correspondent at the Microsoft trial, was intrigued by a video clip played in the courtroom yesterday. The clip showed an Apple executive at a computer industry conference saying that Microsoft did not bully Apple. But the audience responded with boos and jeers. They apparently felt that Apple was being bullied into saying it wasn't being bullied. Stein writes:
This incident raises a puzzling question. The members of this unseen audience booing and jeering were not sworn witnesses in the case. Should the judge pay any attention to their reaction, and can he help doing so? A similar, and more important question, can be raised about Bill Gates' video testimony, a little of which was also shown this morning. Gates surely seems, through his manner of speech and body movements, not to be entirely candid. Is the judge supposed to pay attention to this behavior, or only to what was actually said? I don't know. (For Stein's complete dispatch from Day 13, click here.)
Must justice be blind (and deaf) in this way?
The body language question is easy. Gates' body language is fair game. For one thing, the way he talks and holds himself speaks to whether he's being truthful--a lawyer would say it has "probative value." For another, there isn't a good reason for ignoring it.
The question of the audience's laughter is trickier. It depends on why the judge thinks the audience was laughing.
If by laughing audience intended to say "we don't believe you," it is hearsay and therefore inadmissible. Hearsay means an intentional statement not made before the court. Hearsay rules exist to preserve the right to cross-examine witnesses ("Isn't it true, Mr. Audience Member, that you really hate Microsoft for no reason at all?"). The laughter is also inadmissible because courts generally don't allow witnesses to comment directly on the credibility of other witnesses.
Judges who are hearing a case without a jury are supposed to apply the same rules of evidence to themselves. So, if he can manage it, the judge should not allow the laughter to affect his thinking.
But if the judge interprets the laughter as an unintentional reaction to a laughable performance, then it is not hearsay. Hearsay, remember, must be intentional. Why? The theory is that unintentional statements can't be intended to mislead. They are by definition sincere and therefore have probative value that can't be undermined by cross examination. Thus the judge may consider unintentional laughter in reaching a decision.
Explainer thanks Professor Kenneth Graham of UCLA Law School, Professor Miguel Mendez of Stanford Law School, and Professor Paul Rice of the American University Law School.