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In an unbelievable television moment out of a reality producer’s wildest fantasy, the HBO documentary The Jinx concluded with Robert Durst stating to himself, “What the hell did I do? Killed them all, of course.” This statement came after Durst was confronted with handwriting samples from a letter he wrote to Susan Berman, his friend who was murdered in Beverly Hills in 2000, and an anonymous letter to the Beverly Hills Police Department informing them of a “cadaver” inside Berman’s home. When police arrived to her home, they found Berman’s body; she had been shot in the head.

The handwriting samples Durst was presented with were eerily similar—they had the same style of lettering, the same spacing between letters, the same subtle details to the letters, and the same misspelling of “Beverly” to “Beverley.” Although Durst tried to shrug off the similarities to the only way a person could form “block letters,” similarly to a typewriter, even he could not identify which one he wrote and the one he claims he did not.

After being thrown for a loop with this uncanny similarity to the writing, Durst went into the bathroom. Presumably not realizing his microphone was still on, he blurted the damning words, which shocked viewers of The Jinx and possibly may help earn Durst a death sentence in California.

The issue now is whether or not this seeming admission will actually be admissible in court. The admissibility of Durst’s statement hinges on the court’s determination of four main issues: (1) Did Durst have a reasonable expectation of privacy when he made the statement?; (2) Did the HBO documentary producers’ contacts with police make the recording of his statement a police action?; (3) Even if it was a government action, did Durst consent to such action by agreeing to partake in the documentary?; and (4) Does this statement qualify as an actual admission or was it a meaningless rambling lacking in trustworthiness?

Each one of these issues has strong arguments for and against admissibility, which almost undoubtedly will be argued by the defense and the prosecution. Each issueis discussed below.

Did Durst have a reasonable expectation of privacy when he made the statement?

A person is free from a warrantless search when s/he has a reasonable expectation of privacy. Eavesdropping of a conversation by use of a wiretap or microphone would constitute a search requiring a warrant when there is a reasonable expectation of privacy.

The Argument for Yes

A bathroom is a private place, and a person always has a reasonable expectation of privacy in a bathroom. A person even has a reasonable expectation of a certain level of privacy in a public restroom. Furthermore, even though Durst had been mic’d up to film the interview, the interview was over. It was reasonable for Durst to expect and believe that his microphone was no longer on and no longer recording. Therefore, while in the bathroom after the interview was completed, Durst had a reasonable expectation of privacy such that his personal thoughts mumbled to himself would not be heard by anyone else.

The Argument for No

Although a bathroom is a private place and a person under normal circumstances would reasonably expect that a soft, mumbled statement a person makes to him/herself under his/her breath would not be heard by anyone else, a person who is knowingly and voluntarily wearing a microphone has no such reasonable expectation. Durst knew he was being interviewed, knew he was being filmed, knew he was being recorded, and knew he was wearing a microphone. With such knowledge, he cannot claim that he reasonably expected his statements to be private.

Furthermore, the argument that he reasonably believed his microphone was no longer on or recording does not fly. A microphone captures sound, and for the purposes of a documentary or interview, records it. Just because you stand up from your chair and the producer stops asking you questions does not mean that magically the microphone you are voluntarily wearing for the purpose of recording what you say stops working if you don’t turn it off.

Finally, this was not the only time Durst did this during the filming of the documentary. According to CNN.com, there were two other instances during the filming that Durst made similar mistakes, practicing testimony while still wearing his microphone. When a person has done this same thing multiple times before, he cannot claim a reasonable expectation of privacy because he thought this time the microphone was off.

Did the HBO producers’ contacts with the police make the recording of his statement a government action?

The U.S. Constitution guarantees a right against unreasonable search and seizure. A warrantless wiretap would be an unreasonable search under this right. Citizens, however, are only constitutionally protected from unreasonable search and seizure by the government. Private actors (regular people) can find and obtain evidence without a warrant or following any procedural rules the police must follow. Thus, the recordings of a a wiretap that may be illegal if planted by the police without a warrant may be fully admissible if that same wiretap was planted in the exact same way, but by a private actor.

Even when a private citizen obtains evidence, however, the obtaining of the evidence may still be a government action under the law if done at the direction of the police. For instance, if a police department instructs a television network to secretly record a suspect, the recording of the suspect’s statements would be a government action.

The Argument for Yes 

Throughout the filming of this documentary, HBO admittedly was in contact with police. The police were fully aware of HBO’s investigation, and likely encouraged and may even have directed the investigation. The Beverly Hills Police Department likely received detailed reports of evidence HBO uncovered and essentially used the filmmakers in place of its own detectives. The activities of HBO were in conjunction with the investigation of the Beverly Hills Police Department.

Furthermore, the Beverly Hills Police Department clearly used the recorded statement as its basis upon which to claim probable cause to arrest Durst. As Durst’s attorney, Dick DeGuerin, has already pointed out, the police have based their arrest not on facts, but on television ratings. Durst was arrested just after the airing of The Jinx showing his statement. This is no coincidence. The police used the TV show as the basis of its investigation, which both invalidates their claim of probable cause to arrest and makes the recording a government action.

The Argument for No

HBO and its filmmakers are private actors. They made this documentary for both informational and entertainment purposes, not criminal law enforcement. HBO acted independently for the purpose of television ratings, not at the behest of the police.

Even if HBO and/or its filmmakers also had the motive of catching a killer, that independent motive does not attribute any if their actions to the police. Similarly, just because the police may have benefitted from HBO’s actions does not mean HBO acted under the direction of the police or that its actions were government action.

Even if the recording of the statement was a government action, did Durst consent to the recording by agreeing to partake in the documentary?

If a person consents to a police search, a warrant is not required.

The Argument for No

Robert Durst agreed to be interviewed on camera for the HBO documentary. He did not consent to being recorded in the bathroom. The recording of this statement overstepped the consent Durst gave to HBO. He certainly did not consent to the recording of other private things he did in the bathroom, and he did not consent to HBO having access to his private thoughts muttered to himself while reasonably believing he had privacy.

The Argument for Yes

Durst agreed to partake in the filming of the documentary, agreed to give the interview, and agreed to wear a working and recording microphone. Durst voluntarily wore that microphone into the bathroom, and he voluntarily made his incriminating statement while wearing the microphone.

Does this statement qualify as an actual admission or is it just a meaningless rambling, lacking in context and trustworthiness?

The rule against hearsay prevents the admission in trial of statements made outside of court and offered in court to prove the truth of the matter asserted in that statement. For instance, a witness cannot testify,“John said the blue car ran the red light;” to get this statement in, John must come in and testify, “The blue car ran the red light.” A statement made by a party to a case and used against that party by the opposing party is admissible, however, as an exception to the hearsay rule. This exception is called an “admission.”

The Argument for No Admission

This was not an admission of guilt. This was not in response to any question and it lacked context. It cannot be determined whether or not Durst was serious when he said this or if it was a sarcastic statement while feeling the whole accusatory situation was ridiculous. The purpose of the admission exception to the hearsay rule is that true admissions are trustworthy—why would the declarant make the incriminating statement if it weren’t true? This statement lacks the proper context to provide the trustworthiness of a true admission. This was a sarcastic rambling, not an admission.

The Argument for Yes

Durst made a clear statement: “What the hell did I do? Killed them all, of course.” This statement came right after being confronted with the handwriting evidence tying Durst to the murder of Susan Berman and making it seem extremely likely he killed her. Furthermore, Durst has been suspected of killing his wife, whose 1982 disappearance is still unsolved, and Berman was reportedly going to speak with police about her knowledge of that disappearance, and Durst killed his neighbor before being acquitted on a finding of self-defense—hence “Killed them all.” Thus, this statement was not out of context. It had a clear meaning, and it was not sarcastic. Durst had no excuse for the handwriting and he couldn’t even tell the two writings apart. He knew he was caught. He was taken off-guard, he was shocked, and he was probably terrified at the reality. He made this statement in the midst of that shock and terror. This is as trustworthy as an admission gets.

Conclusion: Inconclusive

Judges is past high-profile cases have made similar decisions regarding different out-of-court statements (See O.J. and Zimmerman). The truth is that whether or not this statement comes in may very well depend on who delivers the better legal argument: Dick DeGuerin or the Deputy District Attorney.

Find out more about Lonnie and his services here: http://www.mcdowelldefense.com/

And follow him on Twitter: https://twitter.com/celebdefense

About The Author

Los Angeles-based, celebrity criminal defense attorney, Lonnie McDowell, Esq of McDowell & Associates, Attorneys recognized with the Top 100 Trial Attorneys Award; shares his insight into the legal system in this series of commentaries.

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