If we had told you three weeks ago that a man walked into the bathroom with a live microphone and did some things he would live to regret, you would have probably thought we were referring to a scene from “The Naked Gun” movie. By now, however, you know that we are referring to the statements suspected murderer Robert Durst made while “mic’d up” for an HBO documentary.
According to media reports, Durst was recorded saying, “What the hell did I do?” and then stated, “Killed them all, of course.” He was subsequently charged with an execution-style murder of a “friend” from Los Angeles.
Many have opined that the bathroom confession is not admissible. We disagree. At least, we believe that Durst’s soliloquy would be admissible if he were (for some reason) tried in an Indiana court. Here are the three things you need to know about a person who bares his alleged soul while “mic’d up.”
1. The constitutions are of no issue
Contrary to rumor at the jails, the Constitution does not protect anyone against the actions of non-state agents. Stated another way, constitutional procedural safeguards are inapplicable when providing any information outside of this context. While a Miranda warning “must inform the defendant of his right to remain silent and to the presence of an attorney and warn the defendant that any statement made may be used as evidence against him,” this protection will be of little solace to Durst. Miranda, 384 U.S. 436 (1966). Loving v. State, 647 N.E.2d 1123, 1125 (Ind. 1995). There seems to be no argument that the producers of the documentary were acting at the behest, or as agents of, the state. Furthermore, Durst wore the microphone voluntarily. Therefore, his statements were non-custodial, voluntary and made in the sanctity of a bathroom, presumably to himself. Therefore, he does not qualify for the protection afforded under Miranda and neither the Indiana nor United States constitutions will afford him any other refuge. Loving, at 1125.
2. The rules of evidence are of no issue
But what if Durst rests upon his right to remain silent at trial? His statement could not then be used to impeach him. Therefore, pundits have argued that this out-of-court statement would be offered for its truth and would be inadmissible hearsay. We believe this is incorrect. Indiana Rule of Evidence 801 makes it clear that Durst’s statement is not even hearsay at all. As an oral assertion, made by him, it qualifies as a statement by a party opponent. Some pundits have opined that the statement is vague and therefore unfairly prejudicial and would be excluded under Rule of Evidence 403. However, we believe that these arguments go to the weight of the evidence and not the admissibility of the statement. Therefore, a trial court is likely to allow a jury to hear Durst’s recorded moment of epiphany.
3. The statement alone is not enough to convict
Any prosecution against Durst could not “be proven based solely on a confession but must be supported by some independent evidence of the crime including evidence of the specific kind of injury and evidence that the injury was caused by criminal conduct.” Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999) (internal citation omitted). Whether the government can muster “some independent evidence” that the crime occurred remains to be seen. At the very least, if Durst should be convicted, he can sleep at night knowing that his loose lips were not solely responsible for sinking his own ship.•
James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at firstname.lastname@example.org or email@example.com. The opinions expressed are those of the authors.