News & Commentary

In the shooting of the final episode of a six-part HBO documentary about him, Mr. Robert Durst, heir to one of New York’s highest profile real estate empires, said something very strange that was caught on mic. Mr. Durst seemed to have forgotten the microphone when he said to himself, “What the hell did I do? Killed them all, of course.” 

Mr. Durst has been followed closely by law enforcement since the disappearance of his wife in 1982, so this was an extraordinary thing for him to say. Was Mr. Durst's self-muttering a confession? If so, is it admissible in court? There are at least two considerations when contemplating the admissibility of Mr. Durst's alleged confession: Expectation of Privacy and Party Admission.

Expectation of Privacy-
Eleven states require the consent of every party to a phone call or conversation in order to make the recording lawful. These "two-party consent" laws have been adopted in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington. Since California is a "two-party state," 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.

Robert Durst was in a locked restroom. He clearly thought he was alone, therefore, he could reasonably argue that he had an expectation of privacy. This would make the recording inadmissible. On the other hand, Mr. Durst agreed to be recorded when he agreed to participate in the HBO documentary, and he knew about the microphone. When he put the microphone on, he no longer had an expectation of privacy. This will certainly play out in court.

Hearsay and Party Admissions-
Hearsay is a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. Usually, hearsay cannot be admitted as evidence in court to prove truth. What Mr. Durst said would be considered hearsay, and so it normally would not be admitted to prove that he did what he said he did. There are, however, exceptions.

One of these exceptions is called party admissions. A party admission is any statement made which is offered as evidence against that party. In a nutshell, statements made by a party in a case, against the party's own interest, are not hearsay and may be admitted as evidence. Theoretically, a person would not make a statement against his own interest unless it was true. In this case, Robert Durst would not have said that he killed somebody if he had not. This will also play out in court.

Whether you follow law or not, this is a really fascinating case.

- The Civil Litigation Law Team
  Rogers Sheffield & Campbell, LLP

  You can find this article in the Talking Law section of 

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