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Robert Durst: Is his confession admissible? Analyzed by a defense attorney and former prosecutor

Posted By Galluzzo & Arnone || 17-Mar-2015

Robert Durst HBO Confession - Would it be admissible?

In a captivating HBO television episode, Robert Durst, long a suspect in several homicides, apparently confessed -unwittingly, perhaps – by muttering to himself in the bathroom while wearing a live microphone. Durst was promptly arrested by police and is currently facing extradition to California to face charges in connection with a murder in Beverly Hills.

The question currently being debated amongst lawyers in the media is whether this recorded audio confession would be admissible against Durst in a trial for the Beverly Hills murder of Ms. Berman. The short answer is yes, probably.

In order for the prosecution to use evidence against a defendant, a proper evidentiary foundation has to be established. So, in this case, the prosecution would first have to demonstrate that the recording was authentic, meaning that it was in fact what it purported to be (i.e. a recording of Mr. Durst's voice taken while he was in the bathroom). Witnesses would have to testify as to how the recording was obtained and how it was handled prior to being played in court. It is seemingly safe to assume that this foundation could be established without too much trouble.

Out-of-court unsworn statements are also assumed to be inadmissible unless they fit into one of the "hearsay exceptions". There are a multitude of possible exceptions to the hearsay rule, but here, the statement clearly falls within the category of a "statement against penal interest," meaning that it tends to incriminate the person who made the statement. Accordingly, there would not be any hearsay problem with the admissibility of the statement.

The biggest question in this case, however, is whether this statement was obtained in violation of Mr. Durst's constitutional rights. American courts apply a principle called the "exclusionary rule" which holds that any evidence obtained (including statements taken) in violation of a defendant's constitutional rights cannot be used against him at a trial. The exclusionary rule exists to prevent police officers from engaging in unlawful conduct, and to protect the constitutional rights of citizens. Thus, prior to any evidence of statements being presented to a jury, a judge is tasked with screening the proffered evidence in a pre-trial hearing to determine whether it was lawfully obtained.

Most problematically for Durst is the fact that this evidence was not obtained by police officers. The exclusionary rule is designed to prevent government agents from violating the constitutional rights of citizens, but does not apply to private actors. For example, police cannot search a suspect's house without a warrant and then use the illegal evidence that they found inside - it would be "fruit of the poisonous tree" of their illegal conduct. On the other hand, if a private citizen voluntarily and without coordination with the police decides to search his neighbor's house and find evidence therein, that evidence could be used by police against the neighbor.

The lines get blurred when private actors are working in coordination with law enforcement. If Robert Durst's attorneys could show that the journalists from HBO were deliberately and consciously working with police pursuant to a coordinated plan to obtain a confession from Durst during the television interview process, then maybe the attorneys could establish that those HBO journalists were acting as "state actors" for purposes of admissibility analysis, meaning that the constitutional limitations would apply to their conduct. Normally, though, the threshold showing for "state action" is very high, and I seriously doubt that the amount of coordination required for a private actor to be considered a "state actor" is going to be shown to have existed in this case. Without a finding of state action, there would simply be no problem with the admissibility of this confession.

As an illustration of this state actor concept, consider Batman in the movie “Batman Begins.” At the beginning of the movie, Bruce Wayne buys some fancy vigilante gear and runs around catching criminals and delivering them to the police in handcuffs. The police have no idea who Batman is or how to get in contact with him. Batman, at this point, is not a state actor because he is not working with the police, he is working on his own. As such, any evidence obtained by Batman against the defendants “in violation of the U.S. Constitution” would still be admissible in court proceedings against those defendants (assuming the proper evidentiary foundations could be laid by Batman as a testifying witness). Later, however, Commissioner Gordon installs the Batsignal on the roof of the police precinct and asks Batman for help in catching the Joker. At this point, Batman is a state actor, which means that any confessions elicited by Batman from the Joker in violation of Joker’s constitutional rights would hereby be inadmissible at a later trial. Thus, the question for Robert Durst would be: were the HBO journalists acting more like Batman at the beginning of the movie (pre-Batsignal) or more like Batman at the end of the move (post-Batsignal)?

An interesting case that provides an example of this "state actor" analysis in the television context is Fisk v. Letterman, a civil rights case in which David Letterman's alleged stalker claimed that producers from CBS conspired with police to deprive the stalker of her constitutional rights.

Even if Durst's attorneys manage to convince a judge that the HBO journalists were acting as state actors, the next question would be: did they do anything in violation of Durst's constitutional rights? This would again be a very difficult argument for Durst's attorneys to win. To be sure, there have been some cases in which police officers were able to obtain recordings of conversations by suspects using elaborate recording and long-range microphonic technology, and the statements obtained in that manner were deemed inadmissible because they were obtained in violation of the suspects' "reasonable expectation of privacy". See U.S. v. Silverman. However, notwithstanding the fact that Durst apparently forgot that he was wearing a live microphone in the bathroom, there was nothing surreptitious about this recording. Durst wore a microphone for every interview and watched the journalists pin the microphone on him. There is also some evidence that the producers had to previously remind Durst not to forget to take his microphone off before walking away from interviews. Durst should have known that he might have been wearing a live microphone when he uttered the incriminating statements. But at the end of the day, the question is not whether Durst said something stupidly and clumsily, but whether the "state actor" journalists acted unfairly. That's basically an impossible argument for Durst's attorneys to make successfully.

Noah Feldman, a professor at Harvard Law School, has opined that the statements would be inadmissible because they "were more prejudicial than probative." It is true that judges have to engage in that analysis before deciding whether to admit a piece of evidence. However, this argument for inadmissibility is basically just absurd. In a nutshell, the argument is that because Durst confessed to committing multiple murders, it would be unfair to present this statement to a jury in a trial concerning just a single murder. Put another way, a jury is not supposed to hear about uncharged crimes not presently being considered by the jury, and this confession logically implicates him in more crimes than would be at issue. On the other hand, the probative value of this confession is clearly enormous: HE IS CONFESSING TO MURDER IN A MURDER CASE. Thus, the argument by Prof. Feldman is essentially 1) that it's unfair to Durst to use a completely voluntary and damning confession against him because his confession was so breathtaking in its scope, and 2) that a confession to murder shouldn’t be presented to a jury because the confession doesn’t mean that he committed murder. With all due respect to Professor Feldman: that argument sounds good in lofty academia but would get you laughed out of any real courtroom in America. Also, to limit the prejudice against the defendant, a judge could (and would) give a limiting instruction to the jury explaining that they were not to consider the possibility that he had committed other crimes. This instruction seems illusory in some ways but it is routinely used in situations like this to solve these sorts of issues for purposes of appeal.

The author of this post, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor currently defending someone against homicide charges in a case in which the purported victim's body was never found.

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