Subtitles section Play video Print subtitles (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, and then lay the elements of the business records exception, that he is a custodian for this particular audiotape,