Mel Gibson tapes: Are the recordings admissible in court?

It’s hard to imagine how the four recordings of Mel Gibson purportedly screaming obscenities, threats, and offensive epithets to ex-girlfriend Oksana Grigorieva won’t serve as permanent IEDs to his public image. But what about the legal ramifications? The Los Angeles Sheriff’s Department is currently investigating Grigorieva’s domestic violence claim against the actor, which stems from an alleged incident on Jan. 6, 2010, in which he is accused of punching her in the face. In one of the audio clips (which the world appears to have accepted as authentic — Gibson has not issued a statement yet), Gibson seems to admit as much, shouting “You deserved it!” when Grigorieva mentions the incident. That could be damning evidence. But are the recordings even admissible in court?

Normally, California law requires two-party consent for recording phone conversations, and it seems Grigorieva may have recorded Gibson without his knowledge. But as criminal defense attorney Mark Geragos explains, even without his consent, there is still a chance the recordings could make it into evidence. “Generally there’s a presumption that they are not admissible,” says Geragos, who has represented Michael Jackson and Winona Ryder. “However, there is an exception under [penal code] 633.5, which [states that] in certain types of cases, they can be admissible. But that is a factual inquiry. A judge would have to rule on that.” The exception, he explains, only comes into play in “kidnapping, bribery, extortion, and crimes involving threats of violence.” Essentially, that means it’s up to Grigorieva’s legal team to convince a judge that the infamous rants should be admitted. But, according to defense attorney James E. Blatt, that shouldn’t be too difficult. “[The tapes] will be admissible,” he says. “If someone is calling you to to say, ‘I’m going to bury you in a rose garden, and I have the ability to do that,’ I think that’s a reasonable inference of a criminal threat.” And Gibson’s rant might fit under another exception to the penal code: annoying phone calls. “I think it’s pretty clear that most people would consider these phone calls to be annoying,” Blatt says. “That’s an understatement.”

Additional reporting by Kate Ward.

More Mel Gibson:
Mel Gibson recordings: Have you listened?
Owen Gleiberman: Mel Gibson and the tale of the tape
Lisa Schwarzbaum: Mel Gibson: Despicable he, but will his behavior keep you from buying a ticket to his movies?
Mel Gibson: Fourth tape posted online
Third Mel Gibson tape surfaces online

Second threatening Mel Gibson tape emerges online

Mel Gibson’s agency drops him as a client

Comments (105 total) Add your comment
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  • Al

    Mark Geragos got fired by Michael Jackson and lost the Winona Ryder case. Couldn’t you have found a competent lawyer to give an opinion?

    • Mat

      Good call Al?

    • afraidofheights

      Read the transcript from what the Mel Gibson rant would have sounded like on an iPhone 4.


  • Davey Davidson

    As to whether the tapes are admissible also depends on a host of other factors. First, it needs to be proven that the voice is actually Mel Gibson – which shouldn’t be hard to do since we all know what he sounds like angry (ie. “Ransom”). You also don’t want to submit tapes as evidence that are actually the work of an impersonator with an axe to grind with Mel Gibson (highly-unlikely).

    Secondly, intent and context are going to be important, neither of which can reasonably be quantified. For example, and this is without defending the vocabulary in the tapes, what happened immediately preceding Oksana pushing the record button that infuriated him. It is possible that he is crazy and said those things unprovoked, but there is also the possibility that there are other factors at play. Since it appears only one party was recording anything, we don’t seem to have tapes of her berating him in terms that emasculate him or would otherwise drive his blood up. Without condoning his language, people will generally do and say some pretty ugly and uncharacteristic things when pushed to the edge of their sanity (which sounds possible by the sound of his panting).

    Finally, we don’t know when the tapes were made and what happened after they were recorded. Did they make up briefly after these arguments and admit being wrong? Did he/she/both cry themselves to sleep in remorse? Did either of them seek counseling or other treatment, effectively seeing they have gone too far and foreseeing where it could lead unchecked? I think these things need answering before judgement can be reached. Besides, who really wants to be judged on the worst 8 minutes of your life?

  • Fred

    I think Mel’s a typical Republican:
    racist, anti-semite, religious hypocrite, sexist, and abusive toward women.

    • Sniffles

      @Fred: Nice cheap shot at people you disagree with politically.

      I don’t know what Gibson’s politics are. I happen to be a Republican, and I don’t scream death threats or sexist or racist comments at people.

      Some Democrats and liberals do engage in that kind of behavior however, such as liberal/Democrat comic Sandra Bernhard who said a few years ago that she thinks politician Sarah Palin should get raped by black men in New York.

      Then there were all the Democrats who made comments during George W. Bush’s time in office that they hoped he got assassinated, etc.

      • Peabody

        Unfortunately, you are mistaken – Gibson’s behavior IS more typical of a conservative according to various research studies.
        A review of that research published in 2003 found that conservatives tend to be more rigid and closed-
        minded, less tolerant of ambiguity and less open to new experiences . Some of the traits associated with conservatives in that review were decidedly unflattering, including fear, aggression and tolerance of

      • nasty naz

        “IS more typical of a conservative ” and “Mel’s a typical Republican” carry entirely different connotations. Calling Mel a typical republican is inferring that the common republican acts similarly to the way Mel does, where as calling his actions more conservatively oriented is more accurate. By the way I’m a liberal. What Mel is accused of doing is wrong, but I’ve seen fellow liberals commit much worse. Bad people are just bad people.

      • Cate

        I don’t know if he’s a Republican, either, but it’s common knowledge that the Republican platform is anti-gay and anti-woman.

    • pburgdon

      Fred is stupid and trying to bring in politics. The rest of his rant are just things he doesn’t know about. Grow up Fred. Don’t you know that Mel was set up on this deal. His “X” egged him on and wound him up so that she and her friends could capitalize when Mel lost his temper.

      • sheba468

        Way to show your ignorance, too, pburgdon. I guess you think there would be no domestic violence if women would just keep their mouths shut and do what they are told, that a woman who gets punched in the face “had it coming.” Truth is, an abusive person doesn’t need to be “egged on.” A person doesn’t just go from sweet and caring to punching someone in the face and saying “you deserved it” – just like you don’t go from gentle and kind right to dismembering someone in their kitchen – he has obviously been violent in the past. Perhaps she did “egg” him into confessing on tape. Good for her for getting evidence against him. Most cases never even go to court.

      • minnie

        You are right, she was never afraid of him , did not fear for her life. She had a baby for child support and that was not enough, she is after his money. She smells the money, money, money. She made a conscious decision to stick around to tape him more than once, probably instigated the fights, THEREFORE SHOULD NOT ADMISSABLE IN COURT. MY OPINION HAS NOT CHANGED ON MEL. SO SHE ALSO PLANNED TO CARRY HER BABY AROUND THE SAME TIME SHE IS RECORDING HIM IN HOPE HE WILL STRIKE HER WHILE HOLDING HER BABY. I HOPE ANYMAN AFER MEL will look for a tape recorder anytime they have a disagreement or fight. Because she is capable of anything to get you where she wants you to be. She is the worst kind of a woman to play house with. She must hate men.

      • Michelle

        Exactly. she is a gold digger and she made him angry and then she can tape for her benefit while she herself pretended to be very calm. She knew what she was doing but he was kept in the dark what she was doing. This is not a fair game. She is no doubt after his money.

    • Amy

      Fred, this is just a man who has serious problems. Yes, he is a racist just like this member of the New Black Panther Party: Racists exist in both parties – but our media likes to only show one side!!!

    • mike d

      that’s a bigoted statement to say that all republicans are racists and antisemites. look whos talkin

    • liberal minded

      @fred your an idiot

  • Flyer

    “Threats of violence”? If threatening to take a baseball bat to the side of her head and burn down her house don’t qualify, I don’t know what does.

  • Al

    And you’re a typical loser Fred!

  • Rex

    Don’t you guys in the US have a law that states it is illegal to tape people without their permission? If so why isn’t Mels ex being charged? I was under the impression it was a federal offence as well……..

    • sheba468

      That is the law in certain states, but it is not a federal law. It so happens that CA does require both parties consent to the recording, so the tapes may not be admissible evidence, but the public has heard them and that is pretty devastating for someone whose livelihood is based on public opinion. If his lawyer is worth anything, he will sue in response, but the damage has already been done.

    • Big Dave

      There are different laws in different states, Rex, but it’s not a felony anywhere, as far as I know. I don’t believe it’s a federal offense.

      At any rate, as is stated in the article, if someone is making threatening phone calls, you don’t need to get permission from that person to tape the call. The relatively minor offense of taping a phone call without someone’s permission is overridden by the much more serious offense of uttering death threats.

      • Ted

        it’s a felony in NH

    • Bill

      It’s not illegal for a private citizen to record some one. The legality comes in when you try to do some thing with those tapes. If you think about it a little bit this is really obvious. You can take your video camera anywhere and record people but if you try to distribute that tape you need consent from the person you recorded.

    • susanjeanine

      No it is not illegal to tape someone’s phone call. Just hearing him rant and rave on the tape is scary I feel sorry for his ex having to listen to that in person.

  • LDC

    Thank you SNIFFLES for making a logical comment to FRED about not sterotyping invidivuals. Why do people feel the need to be so JUDGMENTAL. We should keep our mouths closed if we can only make rude comments about other people.

  • Phil S.

    Headlines like “Hollywood Abandons Gibson” and other similar headlines. Who hasn’t got mad on the telephone before and said things that they regretted later? Just because that call got recorded which is a private conversation now it’s in the public domain that makes Mel some bad guy? Not.

  • LimRickNews

    Mel Gibson has delivered some slurs,
    Naming folks he So not prefers.
    Tis not the first, such blunder,
    From the actor, down under,
    True character or a case of liqueurs?
    For more, google “LimRickNews”.

  • LDC

    Nothing has been proven, lets not judge. He who is without fault can speak, otherwise keep hate comments to yourself.

    • xuc

      If “without fault” means not foaming at the mouth while threatening to commit acts of arson and homicide, then I think lots of people have the right to speak.

      According to you, anyhow.

  • GMKG

    I am sick and tired of idiots. It is no ones business what a wife shouts at her husband or a husband shouts at his wife in their own homes. You don’t like it, you leave. You don’t tape them to black mailed them. All I can say is Lord help me if there was a tape recorder in my car yesterday when the idiot cut me off. I think the air turned blue in my car. We have all said mean things when we are mad. Besides do you think Mel cares what any body thinks, shootn he can care less.
    So what next? all you Repubicans going to take Fred to court for writing what he wrote? It is in black and white. Or is that racist? Too funny!!!

    • JM

      Why does everyone assume that Republicans are on top of everyone for writing and saying mean spirited things? You have the right to free speech in the United States. You can say whatever stupid thing you want. Human decency would ask that you not be mean-spirited in your dealings with others. Republicans are concerned with hate-speech as they are often lambasted and accused of engaging in such when stating politcally opposing views.

      Grigorieva did break the law in taping Mel and whoever leaked it to Radaronline should also be arrested and charged with violating the statute.

      Mel is guilty of losing his temper and being stupid enough to be unfaithful to his wife with another woman. His anti-Semitism has nothing to do with being a Republican (if he is, indeed a Republican). Most Republicans I know are PRO-Semites. I think GMKG is correct in stating that this is absolutely ridiculous.

      We have no basis for making judgments on Mel’s motives or character. None of us was on the phone call. We don’t even know if the recordings are of him. Keep your mean-spirited nastiness to yourselves.

      Stop all violence: mental, physical and social!

  • Sammy

    Hey what about Mr Captain liberal himself, Sean Penn who used to beat the crap out of his former wife Madonna, and called her all kinds of names and slurs back in the day

  • Andreal CLIMON

    WHOPPI Goldberg said it bes, we all HAVE said things that we either dont mean or meant to say when we are drunk and upset.Im sure everyone with a opinion has been in Mels’s shoes in on way or another. What he did was night right, BUT I DONT THINK that any of us are fit to judge. The sad part is that if any regular person pulls the shzzz Mel did!! You would be put under the jail. I speak from truth. I was fasley accussed of criminal threat. I did not do anything I was blamed for pure lies from a woman. I still went to jail for 6 days for a crime I never commited!! It’s pays to be rich and power, and this is just anotherexample of how srewed or legal system really is. LOL even funnier look at Lindsey lol. She should have been n jail three years ago when she high jack a car and ran people over but nothing happen to her. You try the same thing and find out what happens to you.Our kegal system is worst that the oil spilling out of the gulf lol, AND YOU WILL SEE IT AGAIN IN MELS’S CASE JUST WACTH! “raped by a pack of n_ _ _ _ _-_” yeaaaaah sure lol!

  • chris

    Have any of you people been in a domestic violence situation?

    • Rex

      I have and have had some pretty wild accusations thrown about by my ex which she later admitted to over exaggerating. Some people still believe the crap even though she has stated it’s crap. Can’t please some people it seems.

  • mike

    I be very tick off and say all kinds of stupid things if she wasn’t blowing me too .

    • joe

      I would be pist off if she did’n t blow me either

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