tag:blogger.com,1999:blog-6329595.post4666532083635549877..comments2024-03-28T18:17:02.077-05:00Comments on Althouse: Harvard lawprof Noah Feldman says Robert Durst's confession is not admissible. Ann Althousehttp://www.blogger.com/profile/01630636239933008807noreply@blogger.comBlogger46125tag:blogger.com,1999:blog-6329595.post-39496253959455118902015-03-18T21:19:31.327-05:002015-03-18T21:19:31.327-05:00"Talking to yourself in the mirror may be dra..."Talking to yourself in the mirror may be dramatic ... but it's not much different from a diary entry?"<br /><br />It wouldn't go to admissibility, but if you can lie to your diary...<br /><br />"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." -<a href="http://articles.philly.com/1994-08-06/news/25840407_1_whitewater-affair-dear-diary-joshua-steiner" rel="nofollow">Dear Diary ... Someone Involved In The Whitewater Scandal Is Not Telling The Truth</a>, by Richard Cohen, Philadelphia Enquirer, August 6, 1994Terrence Berreshttps://www.blogger.com/profile/02867275234105879358noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-23091466414940701192015-03-18T15:01:18.742-05:002015-03-18T15:01:18.742-05:00It shouldn't be that hard for the defense to d...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.gbartohttps://www.blogger.com/profile/05992016559235916986noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-46595038823738385792015-03-18T01:47:26.335-05:002015-03-18T01:47:26.335-05:00I just finished watching the documentary. Durst...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.Williamhttps://www.blogger.com/profile/07837540030934495651noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-15391856289082012372015-03-17T18:21:16.479-05:002015-03-17T18:21:16.479-05:00A little self-delusional soliloquizing can be a da...A little self-delusional soliloquizing can be a dangerous thing.<br /><br />Could I get the recording tossed if I drew Judge Feldman? Almost certainly, if Professor Feldman is to be believed.<br /><br />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.<br /><br />Do I engage Professor Feldman as my expert witness to help convince the California judge and, failing that, the jury?Left Bank of the Charleshttps://www.blogger.com/profile/04494310302328322830noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-14629800483127143732015-03-17T16:56:06.128-05:002015-03-17T16:56:06.128-05:00If I were opposing Feldman in court, I'd respo...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."Beldarhttps://www.blogger.com/profile/13404583858244777905noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-55174951386837423902015-03-17T15:00:23.506-05:002015-03-17T15:00:23.506-05:00As a ratings gimmick, it worked. I watched the fi...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. Williamhttps://www.blogger.com/profile/07837540030934495651noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-56014507440724556732015-03-17T13:58:18.687-05:002015-03-17T13:58:18.687-05:00Objection your honor. Admission of this evidence m...Objection your honor. Admission of this evidence makes my job harder because it makes my client look bad.mcculloughhttps://www.blogger.com/profile/03168402889404727565noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-76843596815960064642015-03-17T13:39:46.892-05:002015-03-17T13:39:46.892-05:00What had happened was that the producers had prese...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.<br /><br />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"<br /><br />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.<br /><br />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.<br /><br />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.<br /><br />And that, of course, he had done it, (so there was no defemse)<br /><br />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.<br /><br />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.<br /><br /><br /> Sammy Finkelmanhttps://www.blogger.com/profile/05105012664741556033noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-84843279319857569472015-03-17T13:32:49.696-05:002015-03-17T13:32:49.696-05:00According to what is printed in the New York Post,...According to what is printed in the New York Post, the full quote is alittle bot more damaging than:<br /><br />"What the hell did I do? Killed them all, of course."<br /><br />The full quote actually is:<br /><br />"There it is. You're caught. What the hell did I do? Killed them all, of course."<br /><br />It's a statement about the value of the evidence.<br /><br />Sammy Finkelmanhttps://www.blogger.com/profile/05105012664741556033noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-15051167532049291832015-03-17T13:19:54.918-05:002015-03-17T13:19:54.918-05:00Hahaha! Reading Althouse backpedalling rules of ev...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?lawyapaloozahttps://www.blogger.com/profile/18422613465379940972noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-80658869117924771752015-03-17T12:42:37.173-05:002015-03-17T12:42:37.173-05:00This may be "evidence" in a legal sense,...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.Revenanthttps://www.blogger.com/profile/11374515200055384226noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-1483296034367762312015-03-17T12:21:36.365-05:002015-03-17T12:21:36.365-05:00As a practical matter I would assume that the pros...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.cubanbobhttps://www.blogger.com/profile/03746305669005611456noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-51790055569421716932015-03-17T12:05:19.324-05:002015-03-17T12:05:19.324-05:00The first thought in my mind was whether he actual...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.Big Mikehttps://www.blogger.com/profile/15831645119853118904noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-71028887636888642852015-03-17T11:48:51.238-05:002015-03-17T11:48:51.238-05:00"As a theory to present to the jury or as a r..."As a theory to present to the jury or as a reason to exclude the evidence? "<br /><br />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.<br /><br />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.ron winkleheimerhttps://www.blogger.com/profile/07682886145531485741noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-72439481603597965012015-03-17T11:37:41.866-05:002015-03-17T11:37:41.866-05:00"I've seen speculation elsewhere that his..."I've seen speculation elsewhere that his defense lawyers may try that."<br /><br />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. <br /><br />As for the arguments to be made at trial, of course these arguments belong there. I'm not disputing that at all.Ann Althousehttps://www.blogger.com/profile/01630636239933008807noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-91730278798489175652015-03-17T11:35:22.857-05:002015-03-17T11:35:22.857-05:00"Under California Penal Code s. 632(d), an il..."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."<br /><br />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 Althousehttps://www.blogger.com/profile/01630636239933008807noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-77614746258284314482015-03-17T11:30:57.464-05:002015-03-17T11:30:57.464-05:00In fact, it seems to me that being told to ignore ...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. ron winkleheimerhttps://www.blogger.com/profile/07682886145531485741noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-26583259314303355372015-03-17T11:29:51.549-05:002015-03-17T11:29:51.549-05:00The MSM has done a good job of making this non-sto...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.Bob Ellisonhttps://www.blogger.com/profile/10446972838620138676noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-45397125091544809202015-03-17T11:22:34.734-05:002015-03-17T11:22:34.734-05:00@Robert Cooke
Me too. It isn't that I would w...@Robert Cooke<br /><br />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.ron winkleheimerhttps://www.blogger.com/profile/07682886145531485741noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-76847746239266921902015-03-17T11:19:04.659-05:002015-03-17T11:19:04.659-05:00"There's no sarcasm rule. You let the sta..."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."<br /><br />I've seen speculation elsewhere that his defense lawyers may try that.<br /><br />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.ron winkleheimerhttps://www.blogger.com/profile/07682886145531485741noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-38636859274759060122015-03-17T11:12:37.830-05:002015-03-17T11:12:37.830-05:00I totally think hes guilty. But not many people ar...I totally think hes guilty. But not many people are<br />Going to voluntarily confess to a murderm on camera. Him saying "of course" could be him saying sarcastically.<br />Is it admissible? Well maybe. <br />But is it grounds to find him guilty. Not really.<br />jr565https://www.blogger.com/profile/06250384040393259866noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-32054171599557122772015-03-17T11:11:28.834-05:002015-03-17T11:11:28.834-05:00Althouse:
Under California Penal Code s. 632(d), ...Althouse:<br /><br />Under California Penal Code s. 632(d), an illegally recorded conversation is inadmissible "in any judicial, administrative, legislative, or other proceeding."<br /><br />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.<br /><br />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.blehhttps://www.blogger.com/profile/01463010473842132191noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-25402942711540496352015-03-17T11:10:47.575-05:002015-03-17T11:10:47.575-05:00I doubt that any confession on an edited program c...I doubt that any confession on an edited program could remotely be admissible. Too many possibilities of manipulation.damikeschttps://www.blogger.com/profile/02133230009952160269noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-27391643531248736552015-03-17T11:10:13.904-05:002015-03-17T11:10:13.904-05:00This comment has been removed by the author.blehhttps://www.blogger.com/profile/01463010473842132191noreply@blogger.comtag:blogger.com,1999:blog-6329595.post-6102375209296138072015-03-17T10:59:00.802-05:002015-03-17T10:59:00.802-05:00Why would that make the confession inadmissible? I...<i>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><br /><br />I am not saying there's a Fourth Amendment issue here, i.e., the inadmissibility of evidence unlawfully obtained by <i>the government</i>. 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.blehhttps://www.blogger.com/profile/01463010473842132191noreply@blogger.com