Are Robert Durst’s Recorded Statements Admissible in Court?

HBO recently aired a riveting mini series called “The Jinx:  the Life and Deaths of Robert Durst.”  At the end of the series (spoiler alert), Durst is interviewed and inadvertently makes what appear to be some highly incriminating statements.  After reading a New York Times article (found here), I wanted to take a closer look at the admissibility of his statements.  Are they admissible in a criminal trial?

I think the answer is “yes,” and here’s why:

First, normally, when criminal defense attorneys think about suppressing a statement from use at trial, we think in terms of Miranda, that is, the constitutional right against compelled (or coerced) self-incrimination enshrined in the Due Process Clause of the Fifth Amendment to the U.S. Constitution.  However, Miranda only applies to custodial interrogations by the government and is, therefore, inapplicable to Mr. Durst’s case.   Miranda is really designed to protect people from the “inherent compelling pressures” of an interrogation by the police.  Even if Miranda did apply to a private citizen, Mr.  Durst was not in “custody” or its functional equivalent.  He voluntarily submitted to the interview and was free to go any time.  So Miranda is not a bar to the admission of his statements.

Second, while federal law generally prohibits surreptitious recordings (see 18 U.S.C. § 2511), the same law allows such a recording as long as one party (i.e., usually the party recording the statement) agrees.  This exception to the general rule allows law enforcement to “wire up” informants and have them record their conversations.  However, this general prohibition of surreptitious recordings would not apply to Mr. Durst’s case, because this was not a surreptitious recording, it was a recorded interview.  Mr. Durst clearly agreed to be recorded for the interview (seemingly against the advice of his attorney) and knew whatever was said could be broadcast or made known to the public. (as his mutterings acknowledge).  While Mr. Durst may argue that he never agreed to be recorded while he was in the bathroom and, therefore, that portion of the recording violated this federal law, even that does not appear to be a bar to the admissibility of his statements.  Rather, a violation of this law simply imposes a criminal penalty on those responsible for the criminal act, it does not bar its use in court.  This is especially true when the party seeking to use the recording–here, the prosecution–was not a responsible for the violation of the law.  It seems more likely that a court would find that it was Mr. Durst’s fault he made the recordings in the bathroom because he forgot to turn off his microphone.  The fact that the producers did not even seem to realize they had recorded his statements in the bathroom for two years would seem to bolster the producers’ arguments that they did not do so intentionally anyway.

Third, while Mr. Durst can argue about the authenticity of the recording, e.g., whether the recording is an accurate reflection of what was actually said, the producers seem to have plenty of video footage to counter any such arguments.  Moreover, the fact that Mr. Durst appears to have been preparing to flee undercuts his arguments because it tends to show consciousness of guilt.

Finally, it seems to me that Mr. Durst really has two remaining options.  He can argue that his statements weren’t really admissions, but rather his own commentary on how people would construe or view the interview.  This is a classic factual dispute for a jury to decide.  Lastly, there may be a state law in New York or California that bars the use of such recordings.  I am not licensed to practice law in New York or California and simply do not know whether such a law exists.   In the end, Mr. Durst’s statements remind me of an old adage, oft repeated by my trusty legal assistant: “Even a fish wouldn’t get caught if it kept its mouth shut.”