Robert Durst's Confession Is Inadmissible
If you confess to murder alone, in the bathroom, while looking into the mirror -- and wearing a microphone -- is your confession admissible in court? On the surface, this is the question raised by Robert Durst’s statement, aired Sunday night in the final episode of HBO’s “The Jinx”: “What the hell did I do? Killed them all, of course.”
Answering the question requires going deeply into the law -- but also into the circumstances of the statement. At the bottom lies a profound question about fantasy versus reality, the nature of a soliloquy, and the fascinating human strangeness unleashed by the era of reality television.
The legal question is confusing because so many different principles are relevant when prosecutors seek to admit into trial a statement made outside of court. Durst, the heir to a New York real estate dynasty, was arrested Saturday on a first-degree murder charge. The HBO documentary had been exploring the mystery of three deaths surrounding Durst.
In this case, the first problem with his statement is whether the recording really is what the producers say it is. They claim to have discovered it after two years. The chain of custody of the recording during that time must be known, to be sure that it was actually made by Durst, and when.
Then there’s the hearsay rule. It says that statements made out of court are generally not admitted to prove the content of the statement made. A recorded confession must therefore be admitted in under an exception to the hearsay rule -- for example, the exception made for a statement against someone's own interest.
For a voluntary confession made while under arrest, the rules are different yet again. Such a confession must be made voluntarily after a knowing waiver of the right to remain silent.
Let’s assume none of these principles would bar the admission of Durst’s confession. We can’t know for sure, but let’s imagine it can be shown that the recording made in the bathroom is really of Durst’s voice, and that the producers didn’t, for example, trick him into saying it in some other context and then splice it into another place in their footage. In other words, let’s assume the chain of custody is knowable.
Let’s assume, also, that Durst’s statement would fall into a hearsay exception. That statement, even if made while alone, presumably counts as a statement against interest.
If I were Durst’s lawyer, I would try to argue that producers of “The Jinx” became agents of law enforcement, and from there try to argue that Durst should’ve been given Miranda warnings. But this argument doesn’t seem likely to win, because Durst wasn’t in custody. He was free to leave at any time, and was a voluntary participant in the interviews. It follows that no one needed to read him his rights, even if the producers had become part of the legal apparatus.
Another creative argument I’d advance on Durst’s behalf is that if the producers had become law enforcement, then they would need a warrant to record Durst in the bathroom, because he has a constitutional right not to be recorded where he has a reasonable expectation of privacy. If you don’t have that privacy in the can, where do you? But this argument, too, should fail -- because Durst was wearing the microphone himself. I seriously doubt you have a reasonable expectation of privacy when you’re mic’d up, even in the bathroom.
So far it sounds as if the confession might make it in -- but here comes the twist. Even if all these legal principles for admissibility are satisfied, the trial judge still must decide whether the evidence to be admitted is more probative than prejudicial. In other words, the judge will ask whether the jury would be more likely to glean useful information from the statement that would help prove guilt or innocence, or more likely to form an irrational prejudice the basis of the evidence.
In this case, an intelligent judge would certainly conclude that Durst’s statement would create irreversible prejudice in the mind of the jury -- without a reliable basis for proving the truth.
Durst’s statement takes the classic form of a soliloquy. And soliloquies are by their very nature ambiguous -- because there’s no actual addressee. We don’t need to communicate with ourselves in spoken words, because we already know what we know. When we talk out loud to ourselves, we’re doing something different: exploring our ideas, fantasies, doubts, fears.
Even the question-and-answer form (“What the hell did I do? Killed them all, of course”) is reminiscent of the untrustworthy soliloquies delivered by Hamlet. The soliloquist asks himself the big questions while alone on stage (“To be or not to be?”), and tries on different answers. Yes, Shakespeare’s Richard III announces his plans for murder to the audience. But the better model here is Hamlet, who says both that he is mad and that he is mad north by northwest, meaning that he may not be mad after all. Ambiguity is the order of the day, and we accept the ambiguity in part because we know that talking to yourself isn’t like talking to other people.
Durst’s question and answer isn’t at all the same as a positive statement that Durst committed the murders. He could be asking himself rhetorically what everyone thinks he’s done -- and answering the question by saying that the producers, and the public, assume that “of course” he killed the victims. He could be musing on what he might say to the camera. He could be fantasizing. The possibilities are endless -- and almost all are different from an actual admission.
Durst’s statement therefore will almost certainly never reach a jury. Which raises a final, tantalizing question: Did Durst know that before he made it? Did the producers? And if so, is the whole public conversation serving their collective interest in publicity? Shakespeare never had it so good.
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