Can talking to yourself be considered a confession?

 On March 18, 2015, I wrote an article about how Robert Durst was suspected of murdering his wife in 1982 (her body was never found) and his girlfriend who was shot in the back of her head in 2010. This man is in my opinion, the kind of man you would never want as a neighbor. He also killed his neighbor over a spat between the two of them. He was acquitted of killing his neighbor based on his statement of self-defence however since the victim's head was never found, there is the possibility that evidence relating to the shooting of bullets in his face may come up with evidence to convict him.  He cut up the man’s body with a paring knife, two saws and an ax then dumped the parts in Galvaston Bay in Texas. The authorities are also wondering if he killed homeless people he met in homeless shelters. He was also arrested for urinated in a pharmacy on a shelf where candies were sold. In fact, he has urinated in public places many times before. He certainly is weird when you consider that he was caught shoplifting a chicken sandwich in a store in Pennsylvania when he actually had $37,000 in cash in his car .

While he took a bathroom break from an HBO television show called The Jinx: The Life and Deaths of Robert Durst. During the interview of the sixth and final segment of the show while he was in the bathroom,  he said to himself; “What the hell did I do? Killed them all of course.” Unfortunately for him, the mike on his lapel was still live and heard by everyone. Two years later when the producers discovered on tape what he had said, the police were notified and Durst was subsequently arrested and is expected to be extradited to Los Angeles to face the charge of murdering his former girlfriend.                        

But here is the quandary for the authorities.  Can the so-called admission of guilt heard in the bathroom be used as evidence against him?

Noah Feldman who is a professor of constitutional and international law at Harvard has submitted some interesting thoughts on whether or not Durst’s statement in the bathroom can really be used by the prosecutor against Durst. I will use his thoughts to explain my own views on this issue.                    

Problem One

The chain of custody of the recording from that time Durst made the statement to the time it ended up in the prosecutor’s hands two years later  must be known. This is important because it has to be established that no one in the interim doctored the tape. If the chain of custody cannot be established, then the tape cannot be used against Durst.

The New Mexico Supreme Court in another case suggested that a State could introduce evidence assuming there was a satisfactory chain of custody. In  the Melendez-Diaz case it was determined  “that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device and for this reason, such persons must appear in person as part of the prosecution’s case. It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require the evidence to be valid.” unquote   

 

It may be possible that more than one person in HBO and the police may have had custody of the recording but suppose some of these people can’t be found. If that happens, then there is a break in the chain of custody. The defence could argue that it was possible that one of the missing persons may have tampered with the tape and therefore it couldn’t be established with certainty if Durst’s really said those words in the order they were said on that tape. A jury may be convinced it was Hurst’s voice on the tape but they would never get to hear it because the judge wouldn’t permit it to be used as evidence.

Problem Two

There is the hearsay rule for the judge to consider.  It says that statements made out of court are generally not admitted to prove the content of the statement made. A recorded confession can however be admitted as evidence under an exception to the hearsay rule even when such as statement is against the speaker’s own best interest. But what is a valid exception to this rule?

 

In a Supreme Court of the United States case (Lilly v. Virginia) the court ruled that one of the defendants to a murder made statements to the police  that were reliable because he knew that he was implicating himself as a participant in numerous crimes and because the statements were independently corroborated by other evidence at trial.

 

The prosecutor in the Durst trial would of course have to submit corroborated evidence before or after questioning the defendant. If the defendant chooses not to take the stand, his hearsay evidence could still be used against him if the independently corroborated evidence is submitted in court and accepted by the judge.  

Problem Three

Suspects who make voluntary confessions have to be first warned that anything they say can be used against them in a court of law. That is the Miranda Rule used in the United States. However, that only applies when the suspect is under arrest.  Durst wasn’t under arrest when he confessed out loud to himself when he didn’t know that the mike on his lapel was still live.

A trial judge engaged in a consideration of both the mental and physical condition of the accused must firstly determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, even if perhaps a normal person would not, and secondly, determine whether, due to the mental and physical condition at the time when the accused made the statement, the words could really be found to be the utterances of an operating mind. 

Durst’s statements were freely and voluntarily made even though there was no hope of advantage or fear of prejudice that existed when he made the statement because he hadn’t been charged with any crime at the time he made that utterance in the bathroom. Further, there wasn’t any evidence that he suffered from a mental condition at the time he made the statement.

The question that may be asked at his trial is whether or not the police had some input as to what questions were to be asked by the HBO interviewer. It seems to me that if they did suggest that certain question should be asked, it would be for the purpose of eliciting a response from Durst that might possibly cause him to implicate himself with respect to his role if any in the two murders. The defence argument could be that the HBO were in fact agents for the police and therefore it was the police who were really asking the questions. If that was so, wouldn’t the police or the interviewer have to give Durst the Miranda warning?

The answer is no.  The police in the past have sent undercover agents into jails to get accused persons to talk about their crimes and what they uncover from those conversations can be used as evidence against the accused at trial.

Problem Four

If the producers of the HBO show were acting as agents for the police, would they have to get a warrant to tape record the interview?  After all, anyone questioning someone about a murder as a police agent has the obligation to get a warrant first if the tape recording of the interview is done surreptitiously. In this case, the producers didn’t know that Durst would make a statement that could implicate him while he was talking to himself while he was alone in the bathroom. It would be similar to a police officer interviewing a suspect in his home and then while using the toilet; the officer discovers an illegal gun in the bathtub. He wouldn’t need a warrant to seize the gun and arrest the suspect.

Problem Five

Did Durst have the Constitutional right not to be recorded when he was in the bathroom since he had a reasonable expectation of privacy?  I don’t think so. He knew there was a mike attached to his lapel and that he was being recorded when he was interviewed before he entered the bathroom.  Admittedly, he didn’t know that mike was live when he entered the bathroom but it was on his own volition that he chose to utter a damming statement that might be used later against him at his trial. He could hardly argue that he had an expectation of privacy while he had a mike on his lapel.

Here is an interesting question. If the producers had slipped an unseen mike in the bathroom, could his statement still be used against him?  No it could not because the police would have to apply for a warrant first.

Problem Six

Suppose the police are able to leap over all the hurdles mentioned so far in this article, would a judge decide that the evidence is more probative than prejudicial?  In other words, would a jury be more likely to form an irrational prejudice on that evidence?

I will explain. The trial judge might conclude before the trial that Durst’s utterances in the form of a soliloquy are ambiguous because there was no intended other person who would be listening to him. Even if we talk out loud to ourselves while we are alone, we are exploring our ideas, thoughts and even fantasies. We don’t normally talk to ourselves the same way we would talk directly to other people. He could have been asking himself rhetorically what everyone thinks he had done and then assume what the producers, the police and everyone else thinks.—“He killed them.” Only when he made the statement it was in the first person.

He could have been fantasizing when he said, “What the hell did I do? Killed them all of course.” He could have been be thinking, “That’s what the producers and the police would like to hear me say but they won’t hear me say it.”

Even if the tape was presented to the jury, it would only take one juror to believe him and then there would be a hung jury. Does the State of California really want to proceed to trial in this case and spend a million dollars of the taxpayer’s money hoping to get a conviction?  I think not. I am convinced that this matter will not go to trial.

However, there is one piece of evidence that can be used against him and it is really damning evidence. When he was interviewed on HBO, he admitted that the handwriting he wrote in one letter and another he wrote anonymously to the Beverly Hills Police alerting them as to where they would find his girlfriend’s body were identical. The police followed the directions given to them by Durst and found her body.

Personally, it is my honest opinion that he murdered both women—his wife and girlfriend. I believe that he really uttered truthfully what was on his mind when he did his soliloquy in the bathroom. However, I was not present when those two women were killed so I can`t say absolutely that he killed those two women.  

Incidentally, there was a 2010 film made about Robert Durst. It is called, All Good Things and starred Ryan Gosling

This case is really an interesting one and I will update you on any new developments when I learn of them.