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Durst's Apparent Confession to Murder: To Be or Not to Be

04/06/2015 11:43 am ET | Updated Jun 06, 2015

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If you are like me, you are fascinated by the Robert Durst story. You have probably been glued to your TV set watching The Jinx, the compelling HBO documentary about Durst's life and the story behind the three murders that he is alleged to have committed. Like me, you may have been excited to discuss the story with your friends and family, and to get their opinion on this bizarre and tragic tale. But as a criminal defense attorney, I also viewed the story this from the standpoint of criminal law. And what did I see? Multiple legal issues: from handwriting analysis to self-defense to circumstantial evidence.

But one issue stood out above all others -- the admissibility of Durst's statements, or should I say mumblings, at the end of the documentary. Those mumblings may serve as a full confession to all of the murders he is accused of committing. I say arguably because whether those statements are admissible before a jury -- in the upcoming trial in Los Angeles for the murder of Susan Berman -- is not clear-cut. So before Durst's lawyers and the LA prosecutors spend hours arguing the issue in court, I thought I would give my own take and predict the judge's ultimate decision.

At the end of the documentary, when his interview is completed, Durst enters the bathroom alone. Inside the bathroom, still wearing a live microphone, Durst mutters to himself the following statements:

There it is. You're caught. You're right of course. But, you can't imagine. Arrest him. I don't know what's in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping. I'm having difficulty with the question. What the hell did I do? Killed them all, of course.

Unlike most statements made by defendants charged in criminal cases, Durst's statement was made when he was by himself, ostensibly unaware he was still mic'd up and not in response to a police arranged interrogation. In other words, there is no issue of coercion, involuntariness or a violation of Durst's 5th Amendment right to remain silent because this was not a situation where Durst was arrested by police, put in an interview room, given his Miranda warnings and interrogated. If that were the case, a judge would be asked to determine rule on admissibility by evaluating whether the police acted legally and the statements made were voluntary. If not, the statements are suppressed. If, however, a judge finds that the defendant was not forced and, though, aware of his right to remain silent, spoke anyway, the statements are admitted for the jury to hear.

In Durst's case, it seems clear these statements were made spontaneously and to himself. He was not under arrest or in custody. Were Durst's statements voluntary admissions of guilt -- and therefore admissible or were they the jumbled mutterings of a madman that would only serve to unduly prejudice him and his defense?

So what will each side argue?

Let's start with the prosecutor. The prosecutor will use Durst's statements to convince the jury beyond a reasonable doubt that Durst committed the murder of Susan Berman -- because he admitted it when he said, "What the hell did I do? Killed them all, of course." And when he told himself, "you're caught." In The Jinx, immediately before Durst made these statements in the bathroom, he was questioned about the similarity between his handwriting and the handwriting of the person most likely the murderer who informed the LAPD that there was a "cadaver" at Susan Berman's residence. Against this backdrop, Durst's statements about being "caught," and "this is a disaster" take on an incriminating tone.

The prosecutor may also argue that Durst's statements are no different than when a defendant's admission to a cellmate, a roommate or a spouse. There are countless cases where a defendant made incriminating statements to non-law enforcement people around them. In those cases, a defendant's 5th Amendment protection is not in play because the listener has no legal obligation to warn a defendant about the consequences of speaking. Thus, the statements are fair game.

Similarly, the prosecutor may argue that Durst's statements were akin to a spontaneous outburst, which are unprotected and admissible in court. A spontaneous outbursts occurs when a defendant in custody, spontaneously volunteers a statement absent any questioning, inducement, provocation, or encouragement by the police. That statement may be considered by the jury, regardless of whether or not the defendant was advised of their rights.

To be sure, Durst's criminal defense attorneys, who already won another case in which Durst admitted to chopping up a neighbor's body, whom he had killed in self-defense, will do everything possible that Durst's statements are inadmissible. The criminal defense attorneys may argue that Durst's statements were not statements at all, but rather incoherent ramblings from a confused and rattled man. They may portray the events in the bathroom as Durst having a conversation with himself, not answering questions about the alleged crimes. Defense attorneys may further argue that Durst's statements are disjointed and made under stress leading only to cause the jury to speculate on its meaning and relevance.

The defense attorneys may also rely on California Evidence Code §352, which gives the court the discretion to exclude evidence if its probative value is substantially outweighed "by the probability that its admission will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Durst's attorneys may argue that given the disjointed, rambling nature of the statements and a risk of overly broad interpretation, there is a substantial danger of undue prejudice to Durst. Durst's attorneys may argue that the statements are rhetorical in that Durst was merely marshaling the accusatory view that has followed him for years -- as if to say, "yea, sure, like I killed them all." Even his statement that "this is a disaster" could merely mean that although he is innocent, it appears that he is guilty.

Eventually the Judge will rule on the admissibility of Durst's statements. My prediction is that they will come in. Although there are some questions about Durst's meaning and mental state, the prejudice does not substantially outweigh its probative value of the statements. And as for the meaning, each side is free to argue their interpretation. The fact that there are more than one potential meaning is a question of how much weight the jury will afford the statement evidence not whether the statements are admissible. You can bet that each side will present experts to get into the Durst's head to explain whether his statements should be considered. And if his past trial strategy is any indication, get ready for Durst himself to testify and provide his own explanation.

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