The Bizarre Myth of the Inadmissibility of the Durst Confession
The arrest of Robert Durst for killing Susan Berman and the near simultaneous airing of his confession-like musings on the finale of HBO’s “The Jinx” have set the blogosphere abuzz about the potential inadmissibility of the confession.
To repair some of the damage to the good name of Evidence law, I thought I would do a quick (citation free) post highlighting the near certain admissibility of the confession.
(1) Hearsay
People suggesting that the confession is somehow barred by the hearsay rules are advertising that they apparently never took an Evidence class or litigated a case. It is a statement of a party, and would be offered by the opposing party, so no hearsay problem. This is a terrible argument for excluding the confession, but a good way to smoke out weak legal analysts. Next.
(2) Authentication
The recording would need to be authenticated. That’s at least an objection the defense can make with a straight face. The basic idea is that the recording is not relevant if it is not, in fact, what it purports to be: i.e., a recording of Robert Durst talking to himself in the bathroom after the interview.
The authentication hurdle in all jurisdictions is very low – the proponent of the evidence must generally offer some evidence that the item is what the proponent claims. Here you could do that a million ways, most obviously with testimony from the documentarians about how the recording was made and where they located it, whatnot. The defense can, of course, argue that the recording was doctored, fabricated, etc., but assuming the prosecution offers some modicum of evidence that it is, in fact, what it purports to be, remaining questions about authenticity will be for the jury to decide. Next.
(3) Probative Value v. Unfair Prejudice
There is a catch-all evidence rule that allows judges to exclude evidence if the unfair prejudice of the evidence substantially outweighs its probative value. The key to this provision is the qualifier “unfair.” I don’t see ANY unfair prejudice here, much less unfair prejudice that SUBSTANTIALLY OUTWEIGHS the clear probative value. (Here I am thinking about Durst’s statements in their entirety, — “you’re caught” etc.) Sure there are arguments that the statements might mean something else, but, again, those are arguments that you can make to the jury, not reasons to exclude the evidence from jury consideration. The evidence rules are complex but they are (generally) not silly.
(4) Criminal Procedure Catch-All
There are a handful of constitutional principles that may seem, to a lay person, to be implicated (Miranda, right to counsel), but they are limits on police behavior and there is no evidence that the police were involved in the interview. Plus, he wasn’t in custody, no charges pending, etc. Nothing to see here, move on.
(5) Wire Tapping Laws
This is probably the most sophisticated of the arguments that the confession would be inadmissible. (And most experts suggesting the confession will be excluded aren’t even making it.) California has a strict two-party consent statute that criminalizes recording confidential communications without both parties’ consent, and (importantly) excludes such recordings from evidence, with various exceptions. But the provision may be trumped by other parts of California law (the California Courts haven’t worked this out yet I think) and, in any event, only applies when the speaker has an objectively reasonable expectation that no one was recording. Durst was voluntarily wearing a microphone provided by a reporter! Also he wasn’t in California (right?) when the recording occurred. There are lots of other ways this statute doesn’t quite fit what happened, so I don’t see this doing much damage, but given the uncertainty in California law, it would at least give the defense lawyers something to argue about. (There is also a federal wiretapping statute that I saw raised in one piece, but it is also limited to situations where a person reasonably expects that the statement will not be recorded and, I believe, does not prohibit recordings by persons who have gotten prior consent or are a party to the communication.)
(6) Actually Interesting Evidence Issues
For those who waded through all that, here’s a more interesting evidence piece to the Durst case. The prosecution will likely be able to introduce evidence suggesting that Durst killed Kathie Durst (his former wife) in the California prosecution for killing Susan Berman. Past bad conduct is generally inadmissible to show bad character/propensity, but here it could be offered to show motive (and not propensity)– i.e., that Durst killed Berman to keep her from telling police what she knew about the killing of Kathie Durst.