March 17, 2015

Harvard lawprof Noah Feldman says Robert Durst's confession is not admissible.

What we have is video of Durst, alone and looking into a mirror and saying "What the hell did I do? Killed them all, of course." Feldman says he's "going deeply into the law" and "the circumstances of the statement" and encountering a "profound question about fantasy versus reality, the nature of a soliloquy, and the fascinating human strangeness unleashed by the era of reality television." All of that creates opportunities for presenting other evidence and making arguments about the meaning and weight of the words spoken by Durst, but it's not hearsay, because statements of a party offered by an opposing party are defined by the rules of evidence as not hearsay. [ADDED: Under some states' evidence rules, the statement of a party is hearsay but would fall within an exception to the rule against hearsay.] So what is Feldman's argument?
Then there’s the hearsay rule. It says that statements made out of court are generally not admitted to prove the content of the statement made. A recorded confession must therefore be admitted in under [sic] an exception to the hearsay rule — for example, the exception made for a statement against someone's own interest.
Feldman needs to go a little more deeply into the law! There is obviously no hearsay problem. Feldman goes on to assume that the nonexistent hearsay problem could be overcome and suggests some admittedly weak arguments:
If I were Durst’s lawyer, I would try to argue that producers of “The Jinx” became agents of law enforcement, and from there try to argue that Durst should’ve been given Miranda warnings. But this argument doesn’t seem likely to win, because Durst wasn’t in custody. He was free to leave at any time, and was a voluntary participant in the interviews. It follows that no one needed to read him his rights, even if the producers had become part of the legal apparatus.

Another creative argument I’d advance on Durst’s behalf is that if the producers had become law enforcement, then they would need a warrant to record Durst in the bathroom, because he has a constitutional right not to be recorded where he has a reasonable expectation of privacy. If you don’t have that privacy in the can, where do you? But this argument, too, should fail -- because Durst was wearing the microphone himself. I seriously doubt you have a reasonable expectation of privacy when you’re mic’d up, even in the bathroom.
Then there's the usual fallback argument:
Even if all these legal principles for admissibility are satisfied, the trial judge still must decide whether the evidence to be admitted is more probative than prejudicial. In other words, the judge will ask whether the jury would be more likely to glean useful information from the statement that would help prove guilt or innocence, or more likely to form an irrational prejudice the basis [sic] of the evidence.

In this case, an intelligent judge would certainly conclude that Durst’s statement would create irreversible prejudice in the mind of the jury -- without a reliable basis for proving the truth.
What a strangely extreme statement! First, the rule requires that the prejudicial effect substantially outweigh probative value of the evidence, not just whether the evidence is more probative than prejudicial. What irrational value to the evidence is there that can't be addressed and explained at trial?
Durst’s statement takes the classic form of a soliloquy. And soliloquies are by their very nature ambiguous -- because there’s no actual addressee. We don’t need to communicate with ourselves in spoken words, because we already know what we know. When we talk out loud to ourselves, we’re doing something different: exploring our ideas, fantasies, doubts, fears.
And that's what Durst's lawyers can explain and speculate about to the jury. Talking to yourself in the mirror may be dramatic — I'm thinking of Robert DeNiro in "Raging Bull" (not to mention "Taxi Driver") — but it's not much different from a diary entry? Do I tell the truth when I'm the only one here — as DeNiro famously said — or do I fantasize and lie and puff? Statements have some unknown connection to the truth of the matter asserted — which is the reason for the hearsay rule (and its exceptions) — but there are truth defects in statements made when you are talking to somebody else too. If Feldman's musings were taken seriously, what statements could be heard at trial?
Even the question-and-answer form (“What the hell did I do? Killed them all, of course”) is reminiscent of the untrustworthy soliloquies delivered by Hamlet. 
Feldman speaks of "Hamlet," but I'll reference "Taxi Driver" again. "Are you talkin' to me? Well, I'm the only one here." When you talk to yourself in the mirror, you may get into a frame of mind where you're practicing for or reliving an encounter with another person. Is there ambiguity? Sure. Does that make the evidence inadmissible? Of course not!

46 comments:

Kevin said...

I haven't seen the video, but is there any chance he was being sarcastic? I'm reminded of a Kids in the Hall sketch where a guy on the stand sarcastically copped to a series of horrific acts and the jury laughs. Then the court reporter reads the transcript in monotone and everyone is horrified.

rhhardin said...

It looks a priori to a ratings gimmick to me.

lgv said...

Yes, Kevin, it could be sarcastic, but the more likely context is that is is referring to how others perceived him, not an actual confession.

Imagine you were at a party and you found out some people were upset about something that they thought you said. You look in the mirror and reflect on the fact people were pissed at you, "What did I do? I said she looked fat in that dress of course" even though you know you actually said, "...she looked fab in that dress"

traditionalguy said...

That is the argument to make of course. It was a self deprecating, ironic statement about how things must look by a man driven to confusion by so many false accusations.

Few clients can carry off that semi crazy but innocent confused man act. We will see if Durst has one last Oscar worthy performance in him..

Humperdink said...

Captain Terrill: "Not a hard man to track. Leaves dead men wherever he goes." (The Outlaw Josey Wales)

Or women.

Ann Althouse said...

"I haven't seen the video, but is there any chance he was being sarcastic?"

Sure, but that doesn't make it inadmissible!

There's no sarcasm rule. You let the statement in and let the jury figure out what it means. The defense lawyer can try to portray it as sarcasm.

Matthew Sablan said...

"If I were Durst’s lawyer, I would try to argue that producers of “The Jinx” became agents of law enforcement, and from there try to argue that Durst should’ve been given Miranda warning"

-- I don't know anything about the Jinx, except, apparently, Robert Durst puts on a show for people, but... how exactly did the producers become agents of law enforcement?

YoungHegelian said...

Durst seems to be blessed in getting stupid juries, so he may skate on these charges, too.

The jury in Texas believed his claim of self-defense & found him innocent in the death of his neighbor. Who among us, after shooting our neighbor in self-defense, hasn't then panicked, chopped the neighbor into multiple pieces, and then driven the body many miles to dump it in Galveston Bay? I mean, after forgetting where you left the car keys, what could be more commonplace?

See what I mean about the juries?

Franklin said...

There was a rapper in NYC recently that was arrested and charged after he "admitted" in his rap songs that he had ordered hits from his hospital bed.

http://pix11.com/2014/06/05/rap-lyrics-used-as-evidence-in-brooklyn-murder-trial/

BDNYC said...

Isn't California a two-party consent state? Can Durst argue that the tape is inadmissible because he did not consent to being recorded outside the confines of the interview? Does it make a difference whether he was unaware that the mic he was wearing was "hot" while he was in the bathroom?

BDNYC said...

For that matter, even in a one-party consent state, there was no other party to that "conversation" besides Durst to give consent.

Isn't is possible that Durst did not consent/authorize the recording of his soliloquy in the bathroom (a private place)?

Eric the Fruit Bat said...

I like to hear Professor Feldman's critique of evolution.

Robert Cook said...

I haven't watched the Durst documentary series, but a colleague who has watched it explains that the jury in Texas was instructed by the judge to consider ONLY Durst's act of killing his neighbor, and NOT to consider any actions he took after that act, in deliberating and coming to a verdict.

I don't know the circumstances of the murder, but it's conceivable that the jury could have heard evidence presented--and presented in such a way--that they interpreted just the act of the killing as being believably an act of self-defense.

This said, if I were a juror on the trial and heard that the killer "defending himself" had butchered the decedent's body and disposed of the pieces, I would have taken that into account and would have voted "guilty."

buster said...

Althouse said:

"Statements of a party offered by an opposing party are defined by the rules of evidence as not hearsay."

Some state evidence codes do not use the definition of hearsay used by the federal rules. In my state, Florida, Durst's statement would be hearsay.

Mitch H. said...

Isn't is possible that Durst did not consent/authorize the recording of his soliloquy in the bathroom (a private place)?

Only if you can get a judge to agree that the prior session (which nobody could argue hadn't been authorized and two-party-consented to hell and gone) was separable from his little aria in the toilet. He was the one, in effect, taping himself by failing to turn off the device before going into the bathroom.

I haven't seen the show, but the whole business sounds like he was looking to be convicted. He literally sought out the maker of a movie that portrayed him as guilty as hell, and proceeded to poke that bear until it turned around and ripped his face off with an array of documentary and other evidence. This isn't the only thing that was turned up by the production, it's just the most bald-faced and reality-TV-ish aspect.

Sertorius said...

Another problem with the prejudice argument is Rule 403 requires "unfair" prejudice to exclude the evidence. Any evidence that is inculpatory is "prejudicial" -- the only limit is if that prejudice is "unfair."

I don't see how the jury hearing a recording of the defendant at an unguarded moment, speaking unprompted, could possibly be labeled "unfair" prejudice.

buster said...

Durst will be tried under the California Evidence Code. Section 1200 of the Code defines "hearsay". Durst's statement doesn't fall within the definition.

buster said...

I meant to say that Durst's statement would be hearsay under the Californiia Code.

Ann Althouse said...

"Isn't California a two-party consent state? Can Durst argue that the tape is inadmissible because he did not consent to being recorded outside the confines of the interview?"

Why would that make the confession inadmissible? Isn't that a basis for a dispute with the filmmaker. A prosecutor can use evidence that came into being because of the misdeeds of third parties.

Ann Althouse said...

"Some state evidence codes do not use the definition of hearsay used by the federal rules. In my state, Florida, Durst's statement would be hearsay."

Yeah, I know there's the issue of state law. I think New York is the relevant state for the murders that are not yet tried. I admit I haven't looked into that deeply enough, though I did pass the bar exam in NY 30 years ago. Feldman doesn't get to square 1 though.

I assume that if the party opponent's statement is defined as hearsay that it's also an exception to the rule against hearsay. Right?

buster said...

I'm sure there is. Admission against interest a d spontaneous statement come to mind, although the later is a bit of a stretch.

BDNYC said...

Why would that make the confession inadmissible? Isn't that a basis for a dispute with the filmmaker. A prosecutor can use evidence that came into being because of the misdeeds of third parties.

I am not saying there's a Fourth Amendment issue here, i.e., the inadmissibility of evidence unlawfully obtained by the government. I am saying there might be a statutory exclusionary rule in California that controls the question, in which case it might not matter at all that the filmmakers were private parties.

BDNYC said...
This comment has been removed by the author.
damikesc said...

I doubt that any confession on an edited program could remotely be admissible. Too many possibilities of manipulation.

BDNYC said...

Althouse:

Under California Penal Code s. 632(d), an illegally recorded conversation is inadmissible "in any judicial, administrative, legislative, or other proceeding."

If Durst can show that the bathroom soliloquy was illegally recorded, e.g., Durst did not consent to being recorded in the bathroom, then it would seem that the recording is not admissible. I don't think it makes any difference that the filmmakers were private third parties.

It's a hard argument to make, since Durst will have to persuade a judge that he had no idea the mic was still on him or that he reasonably expected that the mic would not be "hot" while he was in the bathroom.

jr565 said...

I totally think hes guilty. But not many people are
Going to voluntarily confess to a murderm on camera. Him saying "of course" could be him saying sarcastically.
Is it admissible? Well maybe.
But is it grounds to find him guilty. Not really.

Ralph Hyatt said...

"There's no sarcasm rule. You let the statement in and let the jury figure out what it means. The defense lawyer can try to portray it as sarcasm."

I've seen speculation elsewhere that his defense lawyers may try that.

Considering that he beat a murder rap where he admitted to killing and dismembering the victim, I would not bet against him beating this as well.

Ralph Hyatt said...

@Robert Cooke

Me too. It isn't that I would willfully disregard the Judge's instruction, I just don't think that I could make that mental leap.

Bob Ellison said...

The MSM has done a good job of making this non-story the #1 story. Nobody gives a crap who this loser is or was.

Ralph Hyatt said...

In fact, it seems to me that being told to ignore facts that clearly indicate the defendant had a consciousness of guilt (cutting up a body and disposing of it in such a way as to eliminate evidence) could be construed as an instruction to find the defendant not guilty, at least subconsciously.

Ann Althouse said...

"Under California Penal Code s. 632(d), an illegally recorded conversation is inadmissible "in any judicial, administrative, legislative, or other proceeding." If Durst can show that the bathroom soliloquy was illegally recorded, e.g., Durst did not consent to being recorded in the bathroom, then it would seem that the recording is not admissible. I don't think it makes any difference that the filmmakers were private third parties."

Thanks. I'm looking at that text and see that it excludes "any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." He was wearing a mike! Obviously, he reasonably expected to be overheard. He may have forgotten about the mike. I guess an argument could be based on that.

Ann Althouse said...

"I've seen speculation elsewhere that his defense lawyers may try that."

As a theory to present to the jury or as a reason to exclude the evidence? I'm only saying the statement is admissible (or almost surely admissible). I can't fathom how the title for Feldman's essay is appropriate.

As for the arguments to be made at trial, of course these arguments belong there. I'm not disputing that at all.

Ralph Hyatt said...

"As a theory to present to the jury or as a reason to exclude the evidence? "

Theory to present to the jury. In fact, this thread and the article you linked to are the only speculation I have heard about the admissibility of the evidence.

Since I am not a lawyer, I have no opinion on the admissibility of evidence in this or any other case that anyone would (or should) be the least bit interested in.

Big Mike said...

The first thought in my mind was whether he actually said it, and that it was not something cut and pasted together from other snippets of phonemes. If I were the defense attorney that would be my first form of attack.

cubanbob said...

As a practical matter I would assume that the prosecutor has a lot more evidence to try Durst than the video produced by HBO. I suspect the video if introduced in court would be used for the sentencing rather than for the trial.

Revenant said...

This may be "evidence" in a legal sense, but it isn't evidence in a "tells us whether or not he committed murder" sense. Were I a juror, I'd ignore it.

lawyapalooza said...

Hahaha! Reading Althouse backpedalling rules of evidence cracks me up. When was the last time (first time?) you were in a courtroom as a trial attorney?

Sammy Finkelman said...

According to what is printed in the New York Post, the full quote is alittle bot more damaging than:

"What the hell did I do? Killed them all, of course."

The full quote actually is:

"There it is. You're caught. What the hell did I do? Killed them all, of course."

It's a statement about the value of the evidence.

Sammy Finkelman said...

What had happened was that the producers had presented him with ahandwritten letter addressed to Susan Berman in 1999 that was found amonmg her papers.

It was printed in very similar block printing to a note left by someone who said Berman was dead -- and both items misspelled Beverly Hills as Beverley Hills"

You coiuld add some minor things, too like the use of the word cadaver - a word he might have picked up from his first wife, but otherwise kind of rare, and mostly used in the medical community. Or the fact he took a trip to San Francisco, which could look like an attempt to disguise the fact he wnet to los Angeles.

On videotape, Robert Durst had admitted that the note to police was written by the murderer, because nobody else would have known she was dead, and also that that address on the 1999 letter was in his handwriting and also that his handwriting resembled the cadaver note.

That's when, after they were putting away the lights and the cameras, he went to the bathroom, and, still miked up but nmot realizing it or realizing it wa being taped, said he was caught.

And that, of course, he had done it, (so there was no defemse)

Durst did not know about the taping till it aired. The producers even in fact did not discover this "outtake" until 2 years after the taping - last June - and they informed the police some months ago.

But Durst did know about the letter found in the box, but had thought they weren't going to use it. When they did, he mad plans to flee to Cuba. And only then did the DA decide to arrest him.


mccullough said...

Objection your honor. Admission of this evidence makes my job harder because it makes my client look bad.

William said...

As a ratings gimmick, it worked. I watched the first three shows last night. It's extremely compelling. He's now an old, frail man. Whatever happens next, he has lived most of his life a free man. He got away with murder.

Beldar said...

If I were opposing Feldman in court, I'd respond to all of his arguments by saying, "That goes to weight, not admissibility." I'd be right, and I'd win. The judge would say, "You'll get to make all those arguments to the jury, Mr. Feldman."

Left Bank of the Charles said...

A little self-delusional soliloquizing can be a dangerous thing.

Could I get the recording tossed if I drew Judge Feldman? Almost certainly, if Professor Feldman is to be believed.

What are the odds of drawing a Judge Feldman in California? Better than in New York. I don't want Hanging Judge Althouse, of course.

Do I engage Professor Feldman as my expert witness to help convince the California judge and, failing that, the jury?

William said...

I just finished watching the documentary. Durst's admission is damaging but hardly the only damaging evidence that was discovered. The cadaver note that was clearly in his handwriting is enough to convict. The men's room statement simply puts his reaction to that piece of evidence in italics......He's an old man with a shambling gait. He'll be dead n five years. Why not just charge him with dismembering the body of that man in Galveston. That should put him away for the rest of his life.

gbarto said...

It shouldn't be that hard for the defense to discredit him as a reliable witness. Just show a bunch of other footage of him talking rot to get attention.

Terrence Berres said...

"Talking to yourself in the mirror may be dramatic ... but it's not much different from a diary entry?"

It wouldn't go to admissibility, but if you can lie to your diary...

"Testifying before the Senate committee looking into the White House's handling of the Whitewater affair, Steiner effectively confessed: Either he lied to his diary or he was lying to Congress about lying to his diary. To the former, he confided that Deputy Treasury Secretary Roger C. Altman was under 'intense pressure from the White House' not to recuse himself from matters concerning Whitewater. He told his diary that Altman had 'gracefully ducked' questions put to him at a Feb. 24 Senate hearing. Altman himself disputes that account - and so, incredibly, does Steiner." -Dear Diary ... Someone Involved In The Whitewater Scandal Is Not Telling The Truth, by Richard Cohen, Philadelphia Enquirer, August 6, 1994