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Is Robert Durst's Alleged 'Confession' Admissible in Court?

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By Christopher Coble, Esq. on March 17, 2015 12:07 PM

Hubris caused the downfall of many Greek heroes. And after years of eluding investigators, it seems Robert Durst's hubris may have landed him behind bars.

Robert Durst, once heir to one of New York's real estate dynasties, has lived under the watchful eye of law enforcement since the disappearance of his wife Kathleen in 1982. Since then, he has been suspected of killing a friend in Los Angeles in 2000, and shooting and dismembering a neighbor in Texas in 2001. Durst was acquitted of the murder in Texas; he was never arrested for the disappearance of his wife or the death of his friend.

But that changed on Saturday, when Durst was arrested in connection with his friend's murder in L.A. How? He allegedly confessed! Well, kind of. After filming a documentary about his life, Durst, still wearing a wireless microphone, went to the restroom. There, he whispered to himself, "What the hell did I do? Killed them all, of course."

Do prosecutors now have a smoking gun? Can anything he said be used against him in a court of law?

Party Admission

Usually, a statement made out of court cannot be admitted as evidence in court to prove truth. This is called hearsay. Durst's statement would normally be considered hearsay, and could not be admitted to prove that he did what he said.

However (and there always is a however), there are exceptions to this rule: One is called party admissions. Statements made by a party in a case, against the party's own interest, are not hearsay and may be admitted as evidence. The theory behind this is that a person would not make a statement against his own interest unless it was true. Essentially, the argument goes, Durst would not have said that he killed somebody if, in fact, he had not.

Expectation of Privacy

But even if a court were to find that the party admission exception applied, Durst's confession might still be inadmissible. In a "two-party state" like California, under Penal Code Section 632, it is illegal to record a confidential conversation unless all parties to the conversation agree to be recorded. Conversations that are confidential include those where the party has a reasonable expectation of privacy.

In Durst's case, he was in a locked restroom and expected to be alone. He could try to argue that he had an expectation of privacy, which would make the recording inadmissible. Nonetheless, prosecutors could counter that Durst agreed to be recorded and knew about the microphone. He no longer had an expectation of privacy when he put on the microphone, even if he forgot to take it off.

Even supposing Durst's statement is admissible, it may not be the smoking gun that prosecutors hoped for. Sure, he muttered, "killed them all." But, who is "them"? Ants in his kitchen? Maybe he was using the phrase like the slang "I killed it," meaning he did something really well. Who knows. But, we will eagerly await further developments to see whether or not the statement will be admitted into evidence.

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