- (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,

and then lay the elements of the business records exception,

that he is a custodian for this particular audiotape,

if not the creator of this audiotape,

and that it was formed in the regular course of business,

and just go over the different grounds

for the business records exception.

So let's assume that he's able to get over the first level

of hearsay in the audiotape itself.

I think that there is a presumption that emails

and actual recordings tend to be pretty reliable,

so courts try to bend over backwards

to get those kind of records in.

So we get to the second layer of hearsay,

and here's where it gets really interesting.

You might say that what is going on in this tape,

they're out-of-court statements and therefore,

they should be considered hearsay

and excludable from evidence.

But remember that hearsay is not just any statement.

It is a statement used

to prove the truth of the matter asserted.

Now, no one is using this tape for the voracity

of what is actually being said on the tape.

In other words, that her gentleman caller

is actually better in bed than her husband

or that God exists because she keeps saying,

oh, God, oh, God.

Instead, what they are doing is showing the existence

of the underlying acts, in other words,

that she committed adultery

and these exclamations are evidence of engaging in that act,

which has legal significance under the prenuptial agreement.

So I don't think this actually qualifies as hearsay

because hearsay must be a statement used

for the truth of the matter asserted.

They're not using it for the truth of the matter asserted,

and therefore, we don't even have to talk about

whether it's an exception to the hearsay rule.

I don't think it qualifies as hearsay in the first instance.

Now, that being said, I think Fletcher Reede really

should be objecting here

because he needs to break this up,

he needs to try to prevent this tape

from coming into evidence,

and he's just allowed the other attorney

to play it whenever she wants

and establish its credibility.

He might lose these hearsay objections

because it probably gets in under the first level

and it's probably not even hearsay on the second level,

but still, you gotta object,

you've got to preserve the record

to show that you've objected

so that you can make that argument on appeal,

and you've gotta break up the flow

of the direct examination.

Not good lawyering by Fletcher Reede here.

- Your Honor, I object.

- And why is that, Mr. Reede?

- Because it's devastating to my case.

- Overruled.

- Good call.

- Not a valid objection

and the judge was right to overrule it.

(dramatic orchestral flare)

- Your Honor, would the court be willing

to grant me a short bathroom break ?

- Can't it wait ?

- Yes, it can.

But I've heard that if you hold it,

it can damage the prostate gland,

making it very difficult to get an erection

or even become aroused.

- Is that true?

- It has to be.

- Well, in that case, I better take a little break myself.

- You know, I was going to object

and say that this is a conversation

that really should take place during a sidebar,

but then it occurred to me that there is no jury,

so there's no reason to have a sidebar.