Why Robert Durst's TV Confession May Be Admissible at Trial (Guest Column)

Also, do filmmakers have legal obligations to turn over evidence?
Courtesy of HBO

"What the hell did I do? Killed them all, of course."

With this bombshell "confession" — muttered by Robert Durst to himself during a bathroom break at the conclusion of his interview with filmmaker Andrew Jarecki — HBO's riveting documentary The Jinx came to a close on Sunday evening. Two days later, the Los Angeles County District Attorney's Office charged Durst with first-degree murder in connection with the 2000 gangland-style murder of his friend Susan Berman.

While prosecutors will undoubtedly seek to introduce this statement at trial, the question of whether a judge will allow the jury to hear it is debatable, and the statement (and the manner in which it was captured) raises several novel and timely questions, at the intersection of life, art and law.

Indeed, as the noted scholar and Harvard law professor Noah Feldman recently stated, the admissibility of Durst's statement "requires going deeply into the law," but also presents a "profound question about fantasy versus reality, the nature of a soliloquy, and the fascinating human strangeness unleashed by the era of reality television." He then argues:

"Durst's statement takes the classic form of a soliloquy. And soliloquies are by their very nature ambiguous — because there's no actual addressee. ... 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."

Continuing the Hamlet analogy, Feldman suggests that "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. … The possibilities are endless."

For these reasons, Feldman concludes that an "intelligent judge" would exclude and hold Durst's statement inadmissible, on the legal ground that its probative value is outweighed by its prejudicial effect.

Although Feldman's Shakespearean analogy is provocative, his conclusion is likely incorrect. If the case goes to trial, the statement will almost certainly come into evidence over several creative objections that Durst's team might assert.

First, the defense may contend that Durst's words are hearsay, but they should lose this argument. Under Section 1220 of the California Evidence Code, a declarant's out-of-court statement is admissible "when offered against the declarant." Because Durst is the declarant and the government will offer the statement against him (as an admission), it should not be excluded on hearsay grounds.

Second, the defense may argue that the producers of The Jinx were, in effect, agents of law enforcement and, therefore, Durst was impermissibly "tricked" into making the statement or he should have been "Mirandized." These arguments will likely fail as well, because the Supreme Court has expressly endorsed "trickery" by law enforcement in connection with interviews and, in any event, Durst was not entitled to the Miranda warnings because he was not in custody at the time of his interviews. Rather, he voluntary agreed to be interviewed by private parties (the filmmakers) in a non-custodial situation.

Third, the defense may also try to argue that the filmmakers were working in conjunction with law enforcement and thus the statement's admission into evidence would violate Durst's constitutional privacy rights under the Fourth Amendment (which is not a defense against a private party, i.e., the documentarians, but is a potential defense to governmental, state action). This creative argument would turn on the factual question of when the filmmakers contacted the police. According to the central filmmaker's recent public comments, however, he did not contact the police until well after the interviews with Durst were over. This would further negate any Fourth Amendment argument.

Relatedly, any argument that the statement amounted to an illegal wiretap would be flawed because of Durst's voluntary consent to the interviews, and more specifically, his awareness that he was wearing a microphone at the time he made the statement. Thus, although California's wiretap laws are more stringent than those in most other states, Durst's consent should suffice. These facts also undermine the argument that Durst had a "reasonable expectation of privacy" under the Fourth Amendment. Additionally, Durst presumably signed a waiver permitting the filmmakers to use his statements. Accordingly, everything he said — whether alone in the bathroom or directly to the filmmakers — should be fair game in court.

Finally, Feldman is correct that, putting aside these technical legal arguments, a trial judge always has the discretion to exclude evidence on the ground that it is unfairly prejudicial, because its probative value (that Durst committed the crimes) is outweighed by its prejudicial value (an irreversible prejudice against Durst once the jury hears the statement, without a concomitant assurance of reliability).

Ultimately, while Feldman is also correct that it is theoretically possible that Durst's musings were "untrustworthy," Hamlet-like soliloquies — or "fantasies," jokes, or perhaps sarcastic statements ("Of course" can be a common marker of irony) that were actually meant to be overheard, so long as the government proves that the statements were authentic and not tampered with, the judge will likely admit them. It will then be up to the jury to decide (based upon the lawyers' examinations and closing arguments) how much weight to give the statements and whether or not the words should be taken literally.

Given the very strong arguments favoring the statement's admissibility, the more intriguing question concerns the legal and other obligations of documentarians who come into possession of incriminating evidence. This question arose in two acute ways during the documentary. In addition to the confession, in episode five, a relative of Susan Berman showed the filmmakers a never-before-seen letter he had discovered at Berman's house, which appeared to implicate Durst in Berman's murder.

The short answer to this question is that, unlike lawyers or psychiatrists, who may have legal, ethical or professional obligations to provide information to law enforcement under certain circumstances, as a general matter, like ordinary citizens, neither filmmakers nor journalists have a special legal obligation to provide information to the police about suspected criminal activity. Thus, although providing evidence to the government is certainly desirable and obviously should be encouraged, absent circumstances that do not appear to be present in The Jinx (such as becoming an "accessory after the fact"), as a general rule, a filmmaker's "withholding" of evidence will not be considered a crime.

That said, in view of the "strange" era of reality television in which we now live, filmmakers may well be forced to confront these and similar questions in the future from a moral and ethical — as well as a legal — perspective.

Mathew Rosengart's practice focuses on media and entertainment, white collar defense, and commercial litigation. Rosengart previously served as an assistant United States attorney and trial attorney in the civil and criminal divisions of the U.S. Department of Justice and as an adjunct professor of law at Fordham Law School.

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