Did I say that on tape?

Photographer: Pat Sullivan/AP Photo

Robert Durst's Confession Is Admissible

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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Now that Robert Durst has been arrested on a charge of first-degree murder, kudos are quite properly being directed at the producers of the six-part HBO documentary “The Jinx: The Life and Deaths of Robert Durst” for digging up evidence that California prosecutors missed. The big news, of course, is that Durst, heir to a New York real estate fortune, appears to admit to multiple murders on tape.  

The New York Times reports:

On Sunday night, in the final moments of the final episode of a six-part HBO documentary about him ... Mr. Durst seemed to veer toward a confession that could lift the shroud of mystery that surrounds the deaths of three people over the course of three decades. 

How close does he veer? About as close as a prosecutor could want:

“What the hell did I do?” Mr. Durst whispers to himself in an unguarded moment caught on a microphone he wore during filming. “Killed them all, of course.”

Quite naturally, people are wondering whether Durst’s words would be admissible should the murder case go to trial. As an evidence teacher, I might pose the question in class to my students -- except that the answer is too easy. Should the case go to trial, Durst’s statement would probably come into evidence against him. The defense will claim that his words are hearsay, but section 1220 of the California evidence code is crystal clear:

Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity. 

For the uninitiated, the declarant is the person who makes an out-of-court statement that someone seeks to introduce at trial. Durst is the declarant with respect to the statement, “What the hell did I do? Killed them all, of course.” The statement isn’t hearsay as long as it is offered against him.

Related: Robert Durst's Confession Is Inadmissible

That’s the rule pretty much everywhere. If a defendant in a criminal case makes a confession to someone other than a law enforcement officer or agent, there is no bar to its admissibility.  A familiar example is the so-called jailhouse confession, where the defendant acknowledges the crime to his cellmate. Courts routinely allow the jury to hear the cellmate’s testimony. Similarly, courts allow into evidence confessions made to a defendant’s roommate or members of a defendant’s family. There is no reason to treat a confession made on tape differently.

The fact that Durst might not have realized that his words were being overheard is beside the point. Courts admit confessions that are made to no one in particular -- even confessions that were never expected to see the light of day. For example, a defendant who records details of his crime in a diary will find the pages admitted against him at trial.

Durst’s lawyers will probably argue that his words do not actually constitute a confession. He may have been musing aloud, disbelievingly, about what the producers of the documentary hoped he would say. He might have been rehearsing lines he knew to be untrue. He might have been doing a thousand things.

But that concern shouldn’t keep his comments out of evidence. As long as the judge is convinced that a reasonable jury could believe that Durst was confessing, Durst's statements should come in. Durst is then perfectly free to introduce evidence that the words didn’t mean what they seem to. But that would be a question for the jury to decide once it had his actual words before it. The mere possibility of an alternative explanation shouldn’t be enough to keep “Killed them all, of course” out of evidence.

  1. If the confession is made to a law enforcement officer, there are (in theory) additional constitutional safeguards to ensure that there was no coercion, and, if the defendant was in custody, that he had received and understood the familiar Miranda warnings. Obviously this concern does not apply to a confession made in the course of a documentary.

  2. Sometimes a problem arises when it isn’t clear whether the person against whom the statement is offered actually made it. This may have been the reason that the Justice Department, even as it settled last year’s criminal case against Toyota for $1.2 billion, chose not to prosecute any individuals: “The same internal memos and public statements that buttressed the case against the corporation might well have been inadmissible as evidence against individuals. And it can be hard to prove the person whose name is on a damning document was responsible for the misstatements or knew that they were wrong.” But whether Durst actually made the statement is unlikely to be an issue here.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor on this story:
Zara Kessler at zkessler@bloomberg.net