In the recent HBO documentary, The Jinx, the producers of the show confronted real estate heir Robert Durst, with two samples of writing that appeared to link him directly to an unsolved killing in Los Angeles years before. Faced with handwriting exemplars that seemed strikingly similar (same style block letters, same misspelled word), Mr. Durst showed some very obvious signs of psychological discomfort. These signs of course don't prove he is guilty or he is lying, merely that he was under stress.
After admitting it was his handwriting on one letter, but not on the seemingly identical other, he asked to go to the bathroom. Still wired for sound recording, Mr. Durst goes to the bathroom apparently unaware that the microphone was still on him and recording. In the bathroom he is overheard saying to himself, "There it is. You're caught ... What a disaster ... What the hell did I do? Killed them all, of course."
Social media exploded during the broadcast. Some were praising the show; others were surprised by what they had seen and heard; still others wondered if those statements proved anything. It was fascinating to watch and, of course, by the next day everyone had at least heard about Mr. Durst's statements and wondered why he would say such things and whether it had any significance as to his innocence or guilt.
Most of us know by now that people under the stress of guilt will confess. In my former profession as an FBI Special Agent, I was witness to this many times in interviews. The effect of relieving yourself of the weightiness of guilt leads not just to confessions to the police, but also to jail-mates, girlfriends, parents, even police hotlines -- they do so because confessing can be cathartic.
But what the public saw and heard with Mr. Durst, is well-known to investigators. This is not a confession per se but rather what we call a "cathartic utterance." These often take place when a suspect or interviewee is left alone by an investigator or polygraph examiner and they think they are not being recorded. They will say things such as, "God, I can't believe they found my fingerprint;" "At least they haven't found the gun;" "If they search my garage I'm screwed."
This is not such an odd thing, in fact, we make cathartic utterances all the time, such as while driving when we say out loud to ourselves, "I can't believe I got in this lane!" or "That was dumb, I just ran the red light," or "Ooops I cut him off." Most of the time we don't notice we say these things out loud because we don't record them. HBO did.
In American jurisprudence, there is a tradition of recognizing spontaneous utterances referred to as res gestae admissions. What that Latin term refers to is the recognition by the courts that under certain conditions, statements, even inculpatory ones, will be made by individuals. Such statements because they are made naturally, spontaneously, without planning or deliberation, are an exception to the hearsay rule and are admissible in court if overheard by a witness -- or an HBO sound technician. In essence, the courts recognize that a statement that is uttered without contemplation or forethought, extemporaneously in the moment, should be considered at trial because people are known to say things impromptu that can implicate them.
I don't know if the statements made by Mr. Durst in the HBO documentary will be admitted in a future trial or even if they are needed. What I can say from experience is this: We should not be surprised when people make utterances that inculpate them in crimes. Whether they tell a friend, a cellmate, or a total stranger or they say it to themselves out-loud when they think they are alone; this is but one more way to deal with the stress of a guilty conscience and, in a way, we shouldn't be surprised.
Joe Navarro is a Former FBI Special Agent and the author of Dangerous Personalities (Rodale).
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