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  • (woman screaming) (man grunting)

  • - (splutters) Oh, come on!

  • (chuckling)

  • (lighthearted jingle)

  • - Hey, Legal Eagles, D. James Stone here,

  • teaching you how to think like a lawyer.

  • Last week we covered the first half of Liar Liar.

  • Today, we're covering the second half,

  • including the entire divorce trial.

  • So let's dig in, remember to like and subscribe,

  • and be sure to comment in the form of an objection.

  • I'll either sustain or overrule it.

  • And while you're there, let me know what movie

  • or TV show I should do next

  • and stick around until the end

  • when I give Liar Liar a grade for legal realism.

  • So without further ado,

  • let's dig into the second half of Liar Liar.

  • (dramatic orchestral music)

  • That is not what courtroom bathrooms look like.

  • That is way too nice.

  • (mischievous orchestral music) (people murmuring)

  • Why are all these people in this court?

  • This is a random family divorce.

  • There's no reason all those people should be there.

  • - From March 6th through June 12th,

  • I surveilled Mrs. Cole at the behest of Mr. Cole.

  • During that period, I noted that Mr. Cole left each day

  • between 7:40 and 7:50.

  • Thereafter Mrs. Cole would frequently have a male visitor

  • arrive and stay from one to four hours.

  • - So at this point, I think Fletcher Reede,

  • Jim Carrey's character, should probably be objecting.

  • There're a couple issues here.

  • I don't know if they'd win the day,

  • but they're probably worth objecting to.

  • Number one, California has some really strong

  • invasion of privacy laws,

  • so this investigator is conceivable invading the privacy

  • of Mrs. Cole, presumably what is going on

  • in her own residence inside of her own bedroom.

  • I don't know if that creates an evidentiary burden

  • to bring this evidence in,

  • and therefore it would be unlawful

  • to bring this kind of evidence

  • into their divorce proceedings.

  • That doesn't seem like it would carry the day

  • because I'm sure that there are many instances

  • of private investigators actually taking the stand

  • and providing exactly this kind of evidence

  • in a wedding proceeding to show adultery

  • in a violation of the prenuptial agreement.

  • But as a putatively experienced trial lawyer,

  • Fletcher Reede really should be breaking up the flow

  • to prevent the private detective

  • from getting into a rhythm

  • and getting his entire story out

  • and showing all of presumably the bad evidence

  • that's about to come out.

  • - [Investigator] I was able to take several photographs

  • of the male visitor. (Fletcher gulps)

  • - [Attorney] I see.

  • - I don't know what the attorney has just done here.

  • She has handed the photographs from the witness

  • to the judge without laying the foundation that's necessary.

  • A photograph needs to have foundation laid

  • before you can bring it into court,

  • to bring it into evidence,

  • and if you don't bring it into evidence,

  • then it's as if the photograph never existed

  • because the judge can only take things into consideration

  • that actually came into evidence.

  • So she needs to lay the foundation

  • that this person took those photographs,

  • that they reflect the scene accurately

  • when he took those photographs,

  • and that they're a fair and accurate representation

  • of what actually happened.

  • So those are all evidentiary hurdles

  • that this witness must establish and overcome

  • in order for these pictures to be entered into evidence.

  • The attorney just can't pick them up

  • and then hand them over to the judge.

  • That just, it doesn't happen.

  • You slowly enter them into evidence

  • after you've laid the appropriate foundation.

  • - Your Honor, as you are aware,

  • under the terms of the prenuptial agreement,

  • if Mrs. Cole commits adultery,

  • - No. - she is entitled to nothing.

  • With your permission, we'd like to play

  • the following tape recording.

  • (playback button clicking)

  • - No, okay, so there are a lot of problems

  • with what just happened in court.

  • In order to establish that this witness

  • has the personal knowledge of what happened

  • between Mrs. Cole and her gentleman callers,

  • the lawyer has to establish that he has some reason

  • for this personal knowledge.

  • In other words, he has some basis

  • to be able to opine as to what was going on.

  • And he actually took a step back and said the wrong thing,

  • that he doesn't really have personal knowledge

  • because they kept the shades drawn.

  • So he doesn't have a visual confirmation

  • of what was going on.

  • What he does is that he heard what was going on

  • behind closed doors.

  • He was using some form of electronic surveillance

  • to hear what was going on in the bedroom.

  • Unless, of course, they were engaging in conduct so loudly

  • that he was able to hear that

  • without the aid of an electronic device.

  • But let's assume for the moment that this

  • is a fairly sophisticated private investigator

  • and he's using electronic surveillance equipment.

  • If that's the case, then he doesn't have personal knowledge

  • except for what is on this video tape.

  • Now, California not only has very strict invasion

  • of privacy laws, but California also has very strict

  • electronic surveillance laws.

  • And California is a two-party consent state,

  • which means you need to have consent

  • from all of the parties to a conversation

  • before you're allowed to electronically surveil them,

  • so you can't just pick up the phone and start recording.

  • You need to actually get consent from the other person

  • that's on the line of that telephone.

  • And electronically surveilling someone

  • in their own house might be a violation

  • of that electronic surveillance wiretapping law,

  • which I think would really preclude

  • this particular evidence.

  • So Fletcher Reede really should have objected

  • on multiple grounds right now

  • to prevent this kind of testimony from coming in.

  • It might be an invasion of privacy,

  • it might be a violation of the Electronic Surveillance Act,

  • and there's very little chance

  • that Mrs. Cole consented to this recording,

  • so those are all very good reasons, by statute,

  • that this evidence might not come in.

  • - [Samantha] Ah, do it to me. (man grunting)

  • Oh, do it to me, harder, harder.

  • (Samantha screaming) (man grunting)

  • - (splutters) Oh, come on!

  • (chuckling)

  • Okay, there's also a huge hearsay problem,

  • and I just live for good hearsay questions.

  • The tape itself is hearsay and arguably,

  • what is being said on this tape is also hearsay,

  • so there is a double hearsay problem.

  • Now, you can get over double hearsay

  • by showing an exception or an exemption at both levels,

  • but because there's hearsay in what's being said

  • and hearsay in the form of the tape,

  • you have to have an argument for both of those levels

  • before testimony like this, evidence like this can come in.

  • So let's talk about the first level of hearsay

  • in the tape itself.

  • Now, just because you have a recording

  • does not mean that it's not hearsay.

  • On the contrary, it is still an out-of-court statement,

  • a document can be hearsay, a videotape can be hearsay,

  • and an audiotape like this can definitely be hearsay.

  • So I think the easiest way

  • to get around this hearsay problem

  • is to establish from the private investigator

  • that this is business record.

  • He is essentially in the business of creating audiotapes

  • exactly like this, that he has done it many times before,