The final episode of HBO’s documentary series The Jinx was gripping. After weeks of twists and turns, the fate of the documentary’s subject – Robert Durst – seemed to hang in the balance. Having been accused of three murders over a 20-year period, Durst remained a free man and continued to insist he was innocent. The series had traced over the disappearance of Durst’s wife – a mystery that has never been solved – and the killing of his neighbour in Galveston, Texas – an incident that resulted in Durst’s acquittal on the grounds the death was a result of self-defence. But it would be the killing of his friend Susan Berman in her Los Angeles home in 2000 that would become the focus of The Jinx’s final, chilling episode.
The conclusion to the series hinged on Durst’s reaction to a letter uncovered by Jinx filmmakers Andrew Jarecki and Marc Smerling during their investigation. The handwriting in that letter, sent from Durst to his friend Susan Berman, appeared to match that of the note written to police after Berman was shot to death. Durst had admitted early on in The Jinx that only the killer could have written the note which directed police to Berman’s house and her body.
It was compelling television made even more captivating by the fact that Durst had been arrested at 11 p.m. on March 14 for Berman’s murder – the day before the episode aired on March 15. The murder complaint alleges Berman was killed because of what she knew about the disappearance of Durst’s wife.
The New York times reported that Durst was “arrested on a charge of murder as he walked into a New Orleans hotel he had checked into under a false name.”
His arrest on Saturday in a Marriott on Canal Street in New Orleans was in connection with Ms. Berman’s death, though the Westchester authorities said they were still investigating him in his wife’s case. Mr. Durst was walking toward an elevator and mumbling to himself when F.B.I. agents intercepted him at the hotel, a law enforcement official briefed on the investigation said. He had checked in under the name Everett Ward, not the first time he had used an alias.
This arrest made viewers anxious to see what was contained in the final episode – one, perhaps, that the police had seen before broadcast and acted on.
The clincher came in the episode’s final moments.
Durst was confronted with the two letters by Jarecki and denied that he wrote the note directing police to Berman’s body. When pushed, however, he was unable to differentiate between the handwriting samples he was shown. Durst’s coughing, spluttering, and resigned facial expressions indicated that Jarecki had hit a nerve and potentially rattled Durst. Nevertheless, the interview concluded without a confession.
The filmmakers start packing up their equipment and Durst excuses himself, asking if he can use the bathroom. With his mic still on, Durst then begins to talk to himself. Muttering out loud in a chilling monologue, Durst appears to confess to all three crimes.
The apparent confession has caused a stir online and has fuelled speculation that Durst may finally be found guilty of murder. In many respects it was an ending that was satisfying for viewers, with the filmmakers seemingly nabbing their suspect at the last moment. It was a relief following the disappointment of fans of the Serial podcast, where listeners had been left wondering after Sarah Koenig’s investigation into the 1999 murder of a teenage girl ended inconclusively.
But serious questions remain about The Jinx, especially regarding the documentary’s timeline, the extent to which police were kept informed and the potential that some (or all) of the evidence uncovered by the filmmakers may be excluded in court. The ending of the documentary series may have seemed conclusive, but it could yet prove far from it.
[Note: Much of the substantive reporting has been done by the New York Times. It seems that other media outlets have had trouble getting information and sources related to the Durst/Jinx case, with the Times reporting exclusively in some cases.]
Major problems arise when the timeline of The Jinx’s final episode is analysed. The filmmakers are depicted throughout the episode trying to get a hold of Durst for an important second interview. The first interview was conducted in 2010 after Durst contacted filmmaker Andrew Jarecki regarding his film All Good Things. The 2010 film was a crime drama based on Durst and the disappearance of his wife. Durst got in touch with Jarecki, telling him he wanted to tell his side of the story.
As put by the New York Times:
The real estate heir contacted them following the release of their 2010 film “All Good Things,” a thinly veiled dramatization of the 1982 disappearance of Mr. Durst’s first wife, Kathleen McCormack. Mr. Durst said he wanted to tell his side of the story.
Following that initial December 2010 interview, Jarecki and his crew continued to research Durst and uncovered more evidence related to the crimes he was accused of. Among this evidence was the letter Durst had sent to his friend Susan Berman – the letter which appeared to match the death note written after her murder in 2000.
In the timeline of the episode, the second interview seems to take place after Durst’s August 2013 arrest for breaching a restraining order taken out against him by his brother – although this is never made clear.
The New York Times describes the confusion as follows:
People associated with the production have told The New York Times that the interview took place in April 2012. Many viewers who watched Sunday night’s episode, however, assumed that the interview took place sometime after Mr. Durst’s August 2013 arrest for trespassing at his brother Douglas Durst’s property. The episode shows footage of Mr. Durst exiting court after being bailed out.
The filmmakers receive a call from Durst mentioning he’s in trouble with his brother. When this call was received is never revealed.
It may be that Durst had received a warning prior to his 2013 arrest, potentially because of the filming he did with Andrew Jarecki and his crew outside Douglas Durst’s home and office, and made the call then. Indeed, as shown in the series, employees outside a Durst Organization building were clearly annoyed by the presence of Robert Durst and the filmmakers.
The New York Times, too, picked up on this:
Voiceovers and older footage establish that the arrest stemmed in part from their own work — Mr. Durst had violated an order of protection taken out by Douglas Durst in 2012, following a filming session for the documentary during which Mr. Durst was taken to various locations associated with the Durst family.
[It’s] possible that the telephone message, and the discussion with the lawyer, took place in 2012, at the time that Douglas Durst was asking for the order of protection. This would fit with a timeline in which the final interview was conducted in April 2012.
What is shown to the audience in the final episode is the filmmakers planning to use the footage they got on that day of filming (whenever it was) as leverage to get Durst to agree to a second interview. They get a call from Durst saying he got into trouble for approaching his brother’s house (this may have been in August 2013 when he was arrested or prior to that when he was filming with Jarecki) and the filmmakers agree to help him out by giving their footage to Durst’s lawyers, presumably indicating that Durst had no foul motive being near his brother’s home.
Again, as the New York Times notes:
[As] a viewer, based on the flow of events, it’s natural to assume that the voice message about the stoop and Mr. Jarecki’s discussion of sharing footage are in reference to Mr. Durst’s August 2013 arrest. It then seems to follow that Mr. Durst’s agreement to do the final interview also comes after that arrest.
The confusing order of events doesn’t change the ending to The Jinx, but does raise questions around the integrity of the filmmakers.
When they were asked by New York Times reporter Bruce Fretts about the timing issue, Jarecki got cagey.
Fretts: From watching the episode, it seemed as if the 2013 arrest of Robert Durst for violating the order of protection by walking on his brother Douglas’s brownstone steps happened after the second interview.
Jarecki (to Smerling): I’m hearing a lot of noise. And if we’re going to talk about the timeline, we should actually sit in front of the timeline. So that’s my suggestion, if that’s the subject you want to talk about.
Fretts: I’m just trying to clarify if the arrest for being on Douglas Durst’s property happened after the second interview.
Jarecki: Yeah, I think I’ve got to get back to you with a proper response on that.
It seems apparent from this response and from watching the episode that the filmmakers may have toyed with the narrative as a way of adding tension to the story. The second interview appears to have taken place in April 2012, over a year before the restraining order arrest, based on the evidence and statements by Jarecki.
By obfuscating the timeline, however, the filmmakers have opened up a number of ethical questions about documentary filmmaking and journalism. As noted by the New York Times:
[Documentarian Joe Berlinger] described “The Jinx” as a “triumph,” but he also said documentarians were under increasing pressure from networks to make films that more closely hued to the conventions of scripted TV shows, like procedural crime dramas, which withheld information from the viewers until the very end for maximum impact.
“Real life doesn’t necessarily mirror the arc of scripted drama, and yet there has been this push in television to bring those two kinds of storytelling together,” he said. “That doesn’t make it wrong or bad. It just makes it a morally interesting time for documentary film.”
Perhaps it was this pressure to make documentaries more exciting that convinced the filmmakers to fiddle with the timeline or perhaps, as suggested by the New York Times, it was simply a way for the filmmakers to crowbar in a piece of information they had nowhere else to put:
[O]ne possibility is that there was a desire on the filmmakers’ part to include the 2013 arrest in the story, but that there was no natural place to put it, given that the real story arc of the documentary ended in 2012. In that case, putting it where they did made some sense because of its connection to the 2012 events, but it was a tenuous connection and the result was a confusing timeline.
The timing of the second interview is also important because of the apparent late discovery of the chilling words that end the series. The bathroom recording we hear at the end of The Jinx was apparently not discovered until a much later date. In one New York Times article, it is stated that the recording was not discovered for two years:
Near the documentary’s end, the filmmakers were packing up their equipment when Mr. Durst asked to use the bathroom. He did not remove his wireless microphone as he closed the door, however, and began to whisper to himself.
More than two years passed after the interview before the filmmakers found the audio.
If the interview was conducted in April 2012, this would place its discovery around the same time in 2014. If the interview was conducted after Durst’s 2013 arrest, this would be impossible.
But more recently, Andrew Jarecki told CBS This Morning it only took months to discover the audio, not years. This would potentially place its discovery around the end of 2012 or beginning of 2013.
Yet another New York Times article suggests that discovery took place nine months ago (around June 2014):
It was taped nearly three years ago but accidentally discovered just nine months ago.
Reconciling that with Jarecki’s “many months” statement would mean the second interview had to take place around the end of 2013, meaning the second Durst interview could very well have taken place after Durst’s restraining order arrest.
All this confusion about when the tape was discovered may just be a result of misreporting, however.
In an interview with the New York Times following the broadcast of the final espisode, Andrew Jarecki said the tape was discovered on June 12, 2014.
Fretts: When did you discover the piece of audio from the bathroom, in which Mr. Durst seemed to confess?
Jarecki: That was at the tail end of a piece of an interview. I don’t know if you’ve ever edited anything — things get loaded into the editing machine but not everything gets loaded. The sound recorder isn’t listening after a guy gets up and says he wants a sandwich. It often doesn’t get marked and get loaded. That didn’t get loaded for quite a while. We hired some new assistants and they were going through some old material. That was quite a bit later. Let me look at my list. It was June 12, 2014.
This appears to definitively clarify when the tape was discovered but still leaves questions around when the second interview was conducted (given Jarecki’s conflicting statements about how long it took to find the tape – months or years).
The most likely explanation for his reluctance to give a straight answer is that he knows the timeline of the final episode has been tampered with. The evasive answer he gave to the New York Times (above) suggests he is aware of the timeline problem and is unwilling to admit he took creative licence.
The only person who can really clear up the confusion is Jarecki himself but, as of now, he has pledged to remain silent. He cancelled media appearances and released a statement saying he would not speak for fear of jeopardising any court proceedings:
“Given that we are likely to be called as witnesses in any case law enforcement may decide to bring against Robert Durst, it is not appropriate for us to comment further on these pending matters.”
Keeping the police informed
According to the New York Times, Andrew Jarecki began speaking with police in early 2013 about the evidence he had uncovered.
The extent to which he kept in contact with police is unclear, but questions have certainly been raised about the timing of Robert Durst’s arrest.
The news of Durst’s arrest in New Orleans the day before the broadcast of The Jinx’s final episode was certainly ideal for HBO. It fuelled intense interest in the series and made many wonder just what the filmmakers had managed to get out of Durst in the second interview.
The explanation that gives the most benefit of the doubt to HBO and Andrew Jarecki is that the authorities acted on their own accord, fearful that Durst would try and flee the country.
According to the New York Times, there were indications that Durst had become worried after seeing the how the documentary had come together on HBO:
Even before HBO broadcast the dramatic finale on Sunday of a documentary film about Mr. Durst and the murders, in which he seemed to admit his role in the killings, he told friends and associates that he was worried he would be arrested.
Mr. Durst knew that he had taken a gamble in participating in the film, against the wishes of his lawyers, but it seemed a chance to tell his side of the story.
As the documentary drew to its close, he told friends he believed the authorities were coming for him. They finally did on Saturday night, with state police officers and federal agents arresting him at the hotel on a warrant issued in Los Angeles County.
According to accounts of his final weeks before being taken into custody — pieced together from interviews with his lawyers, friends, associates and several telephone conversations with Mr. Durst himself — Mr. Durst seemed drained from three decades of being accused of murder and concerned that a court fight could drag on for years, he told friends.
In a series of telephone interviews as the documentary unfolded, Mr. Durst was not always happy about his portrayal but initially gave little indication that he was afraid of renewed attention by the authorities.
After the third episode, he wondered what else the director, Andrew Jarecki, might have left. He said that the documentary had largely rehashed old territory.
By the fifth episode, Mr. Durst had grown anxious and increasingly angry, his friends and associates said, and felt that the filmmakers had betrayed him.
While he did not know that Mr. Jarecki had been cooperating with investigators, his friends said they were worried he was about to flee the country.
“He sounded really terrible,” said a friend, who like the others agreed to speak only on the condition of anonymity. “I never heard him sound so depressed.”
When questioned by the New York Times about the timing of the arrest, Andrew Jarecki said it was all up to the police:
Fretts: How did you feel about the timing of his arrest on Saturday night? You didn’t have any control over it, but it obviously was very beneficial with the finale airing the next night.
Jarecki: We were obviously glad that they made the arrest. We were concerned that Bob was floating around, and we knew that Bob had been upset about Episode 5. We had anticipated he would be upset about Episode 5. The truth is, we had reached out to law enforcement to try and get color about when they planned to arrest him. Because as civilians, one always assumes that law enforcement is going to move more quickly than they naturally do. We understand why they have to be cautious. We understand they have obligations that filmmakers don’t have. But we were nervous. We had security. We were in a position we had not been in before. For the first many months we were working on the film, we never felt that sense of being in jeopardy. But once that evidence was out there, and Bob knew that it was on national television, it raised a level of concern. So personally we were relieved that he was arrested when he was.
Authorities say they acted because of the fear that Durst might try to flee the country. This explanation for the timing of the arrest is credible. According to the New York Post, the warrant for Durst’s arrest was signed a week before he was picked at a hotel in New Orleans.
This suggests authorities may have been prompted by episode 5 of The Jinx, which foreshadowed the incriminating letter that linked Durst to Susan Berman’s death. If both Durst and authorities had seen the episode, they would have known something big was coming in episode 6. There was a risk Durst would run and the police couldn’t let that happen.
Indeed, filmmaker Marc Smerling sees this as the trigger for the arrest. He told the New York Times:
We heard that he was sort of preparing to go on the run. Everyone’s making the timing of the arrest like we had some sort of control over it. But because law enforcement had the information that we had, they knew when Episode 6 came out, there was going to be a real chance that Bob would go on the run. I think that’s what really drove the timing for them, because they weren’t telling us anything.
The idea that HBO, Andrew Jarecki and law enforcement all colluded on the timing of Durst’s arrest is an unlikely explanation for the timing of the arrest.
Gawker raises questions about collusion (“was there some kind of backend deal cut between the filmmakers, the cops, and HBO so that the cops got their man, HBO got its publicity, and the viewers got a thrilling package of documentary entertainment and real-life results?”) but doesn’t back those doubts up with any real evidence.
According to The Guardian, Durst’s lawyer has raised similar questions, but the speculation has been dismissed by the LAPD:
Durst’s longtime lawyer, Chip Lewis, smelled a setup, calling Jarecki “duplicitous” for not making it clear to Durst that he would be sharing information with police.
Lewis also suspects the timing of Durst’s arrest was coordinated between the authorities and HBO for maximum impact.
Los Angeles deputy police chief Kirk Albanese scoffed at that.
“The HBO series had nothing to do with his arrest,” Albanese told the AP on Monday.
As for the timing of the arrest, Albanese said police were concerned about the possibility he would flee the country.
The LA Times further reports:
Los Angeles police rejected any suggestion that the timing of last weekend’s arrest was influenced by the HBO documentary.
“We based our actions on the investigation and the evidence,” LAPD Deputy Chief Kirk Albanese said. “We didn’t base anything we did on the HBO series. The arrest was made as a result of the investigative efforts and at a time that we believe it was needed.”
While the timing of Durst’s arrest doesn’t seem too problematic, there are some problems relating to what The Jinx’s filmmakers told police and the extent to which they co-operated.
Ethical questions have been raised about whether the filmmakers sat on evidence like the letter and whether Durst’s apparent confession really was discovered months after the fact.
The filmmakers are show in the documentary putting the Susan Berman letter in a safety deposit box in an apparent attempt to keep it safe. As the LA Times wrote:
When the makers of the HBO documentary “The Jinx” discovered an old letter that appeared to link New York real estate scion Robert Durst to a Los Angeles killing, their first instinct was to keep it from authorities.
They locked the letter away in a bank safe deposit box and strategized how to confront Durst with it.
“Nobody is going to know that we have this document,” director Andrew Jarecki says on camera to members of his film crew. “We interview Bob, we bring it up, we have it on film, and now we have something that the LAPD is going to really want because … we’ve got Bob reacting clean to this hugely important piece of evidence.”
The scene made for gripping television and left no doubt that a key piece of evidence implicating Durst was inextricably tied to the six-part television series.
This leaves open the question of when exactly the filmmakers handed the letter over to police. Keeping it from authorities was not illegal, but did open up an ethical can of worms. However, it seems that the letter did make its way in to the hands of the police (at some point) and it played a key role in Durst’s arrest for murder.
Fox News reported that the Susan Berman letter was the evidence police needed:
A letter written by real estate heir Robert Durst to his friend and former spokeswoman Susan Berman a year before she was killed proved to be the key piece of evidence that allowed authorities to charge the 71-year-old with her murder, according to a report.
The Associated Press, citing a law enforcement official who spoke on condition of anonymity, reported that analysts had linked Durst’s letter to Berman with one that, in Durst’s own words, “only the killer could have written” to point police to Berman’s body.
Durst was charged Monday in Los Angeles with first-degree murder in the shooting of Berman, who was killed execution-style in her Beverly Hills home shortly before Christmas in 2000.
The discovery by the filmmakers of the letter was important and relevant to the police. The filmmakers recognised this when they found it, but found themselves in a complicated situation.
Director Andrew Jarecki says he kept police informed but was careful not to get too close. The fear was that if he started to collaborate with police, he would effectively become an agent of the law. This had the potential to jeopardise both the documentary and the admissibility of evidence in court. As the New York Times notes:
Mr. Jarecki…and Mr. Smerling struggled with whether to bring the letter to law enforcement authorities. If they did so too soon, their lawyers told them, they could be considered law enforcement agents in the event of a prosecution, possibly jeopardizing the material’s admissibility in court, Mr. Jarecki said.
They also wanted to preserve a journalistic privilege not to disclose sources or testify in court. Still, Mr. Smerling said in an interview, “We had a moral obligation and an obligation to the families of the dead to see that justice was done.” They began speaking to Los Angeles investigators in early 2013.
In another article, the New York Times notes:
Mr. Jarecki and Mr. Smerling said that they did not want to reach out to the police until after they had finished their “business” with Mr. Durst. “Obviously, we’re not law enforcement officers, and it’s important that we maintain our position as journalists and filmmakers,” Mr. Jarecki said, adding that he and Mr. Smerling wanted it to be clear that they were not working at the behest of the police.
The risk of creating that perception was that Mr. Durst’s defense team could later argue that the filmmakers had effectively collaborated with the police, and therefore should have notified Mr. Durst that his statements might be used against him.
The filmmakers said that the “killed them all” statement by Mr. Durst came at the tail end of the second interview, but that they did not stumble across it until more than two years later. “We hired some new assistants and they were going through some old material,” Mr. Jarecki said.
After checking his notes, Mr. Jarecki said they discovered the apparent confession in June. Asked when they turned that statement over to law enforcement authorities, the filmmakers declined to provide specifics.
“We need to be careful about how much we describe about the details of the case, so what we’ll say about that is we provided the relevant evidence to law enforcement some months ago, and it’s been in their court,” Mr. Jarecki said.
The indications are that The Jinx’s filmmakers did hand over important evidence to the police but it is not clear when they did so. It’s possible that, as indicated by the scene in which Jarecki puts the letter in a safety deposit box, the letter was not handed over to police right away. Perhaps, if it had been, Durst’s arrest might have happened sooner – but this is only speculation.
What is clear is that there were a number of ethical questions raised in the filmmakers’ handling of evidence – and there are certainly answers that need to be given by Jarecki and his fellow documentarians.
Admissibility of evidence
There are serious risks that both the Susan Berman letter and the taped confession could both be excluded from evidence in court.
In the final episode of The Jinx, the filmmakers enlist the help of a forensic document examiner who concludes that the handwriting characteristics on the Susan Berman letter and the death note “are unique to one person and only one person.”
But, as the Guardian reports, handwriting analysis is not always admissible or probative:
Handwriting analysis is not generally deemed scientifically sound enough to be considered solid evidence and has been deemed inadmissible in the past – including during the trial of Timothy McVeigh, the Oklahoma City bomber.
Thus, it is not clear whether a court would allow handwriting analysis to form part of the prosecution’s case, with potential concerns about the evidence being more prejudicial than probative. For the prosecution in the case against Durst, it would be a matter of proving scientifically that the handwriting in the two letters is so similar it proves a link.
As for the taped “confession”, it is not at all clear whether Durst’s words are what they seem. And even if Durst’s taped words do constitute an admission, it is not clear whether the tape would be admissible.
The argument that Durst’s words do not constitute a confession is best put by Harvard Law professor Noah Feldman.
He argues that Durst may have been speaking rhetorically to himself as a Shakespearean character would in a play:
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.
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. The soliloquist asks himself the big questions while alone on stage (“To be or not to be?”), and tries on different answers. Yes, Shakespeare’s Richard III announces his plans for murder to the audience. But the better model here is Hamlet, who says both that he is mad and that he is mad north by northwest, meaning that he may not be mad after all. Ambiguity is the order of the day, and we accept the ambiguity in part because we know that talking to yourself isn’t like talking to other people.
Durst’s question and answer isn’t at all the same as a positive statement that Durst committed the murders. He could be asking himself rhetorically what everyone thinks he’s done — and answering the question by saying that the producers, and the public, assume that “of course” he killed the victims. He could be musing on what he might say to the camera. He could be fantasizing. The possibilities are endless — and almost all are different from an actual admission.
Indeed, Durst never actually says “I killed them all”. He speaks in a fractured way, clearly in troubled thought. He seems to be playing two characters during his monologue in the bathroom, becoming both sides of a conversation going on inside his mind.
Here is Durst’s dialogue from the bathroom scene. It’s confusing and fragmented; perhaps a confession, perhaps a conversation. Whether this constitutes a confession is a matter of interpretation. It also raises very real questions about whether Durst is mentally ill:
There it is. You’re caught.
You’re right, of course. But, you can’t imagine.
I don’t know what’s in the house.
Oh, I want this.
What a disaster.
He was right. I was wrong.
And the burping.
[makes burping noises]
I’m having difficulty with the question.
What the hell did I do?
Killed them all, of course.
Indeed, CBS News reports that questions around Durst’s mental health are already being raised:
Attorney Alan Dershowitz, who served on O.J. Simpson’s defense team and is currently a professor of law at Harvard, told CBSN Durst’s alleged confession “can easily be interpreted as ambiguous” and says it will likely be the central point of prosecution.
“I think his mental health will come into play on the admissibility and on the weight to be given to the alleged confession. Obviously the defense will argue this is a man who hallucinates; this is a man who has mental problems. Sure, he may have gone to the bathroom and mumbled these words but you shouldn’t take these words seriously. It may be a little like the Etan Patz case that is now in New York where a guy allegedly confessed to a crime and maybe he didn’t do it,” Dershowitz says.
For anyone who’s watched The Jinx, it’s clear that Durst has a tendency to talk to himself, rehearsing what he wants to say. It was something his lawyers chastised him for in episode 4 when he talked to himself, unaware his microphone was still on.
Jarecki says he doesn’t quite know what to make of the bathroom recording, but notes that it is up to a jury to decide:
Fretts: Is there any way to interpret his comments other than as a confession?
Jarecki: It’s impossible to know how Bob is going to respond to that. I think the more important question is whether any explanation of that is going to fly with the jury. That’s up to the prosecutors to make that case. In terms of our psychological analysis of it, I think that section is very fertile ground. He’s talking about a lot of different things. I think some of the things are fairly straightforward. When he says, “I was wrong, he was right,” my interpretation of that is he’s talking about his lawyer. But that’s my view of it. In other words, I know his lawyer was saying, “Don’t do this interview.” That seems to me to be what he’s talking about there. But he rambles.
Even if the bathroom monologue is a confession, prosecutors still face a challenge when it comes to getting the tape played in court.
As Feldman notes, the ambiguity of Durst’s words mean that the tape can potentially be more prejudicial than probative. A judge would be likely to err of the side of caution – innocent until proven guilty – because the words don’t quite prove Durst committed the crimes.
In this case, the first problem with his statement is whether the recording really is what the producers say it is. They claim to have discovered it after two years. The chain of custody of the recording during that time must be known, to be sure that it was actually made by Durst, and when.
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 an exception to the hearsay rule — for example, the exception made for a statement against someone’s own interest.
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 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.
The New York Times similarly notes that the filmmakers must prove the tape was recorded legally and prove its authenticity:
Mr. Durst’s private monologue makes for good television. But it is unclear whether the recording of his comments could be used in court, some legal experts said, since they were made in a bathroom when he was alone and had an expectation of privacy.
“That’s pretty damning stuff,” said Daniel J. Castleman, the former chief of investigations in the Manhattan district attorney’s office. “The question is: Is it admissible in court?”
But Daniel C. Richman, a former federal prosecutor who is a professor at Columbia University Law School, said the statements could be admitted in court “so long as it can be shown that the tape wasn’t tampered with.”
Other legal experts have suggested Durst had no expectation of privacy since he knew the microphone was on him and bathrooms are not entirely private places. As reported by the BBC:
George Thomas, an evidence expert at the Rutgers University School of Law, says previous case law suggests the expectation of privacy is stronger for being not seen while in the bathroom – there’s not necessarily an expectation of not being overheard.
Jarecki, in an interview with the New York Times, says he believes the bathroom recording was legal:
Fretts: In terms of the audio, do you have any idea whether it will be admissible in court?
Jarecki: I’m not a lawyer and we’re not the people who will need to make this case. Our film is not the legal case. Having said that, I would say that Bob signed a release in which Bob agreed that we could use any recording of him in any way we deemed appropriate. We had no limitations on how we used that material. He was well aware that he was miked all the time. There are numerous times — not just when he’s sitting in the chair and his lawyer comes and admonishes him, but other times when he was walking down the street toward his brother’s house and he’s mumbling, “That’s just ridiculous.” He’s aware that we are with him whenever he is speaking. So from my standpoint, not a legal standpoint, there was nothing about him being recorded in the bathroom that was surreptitious. It was something there was plenty of precedent for. But it was obviously a surprise, probably to both of us.
CBS News reported:
Robin Barton, a former assistant D.A. in the Manhattan District Attorney’s Office, says in order for the alleged confession to be deemed inadmissible, the defense will have to successfully argue that the filmmakers were acting as an arm of law enforcement, and that, therefore, the alleged confession should be suppressed as a violation of the Fourth Amendment, which prohibits unreasonable searches and seizures by government agencies.
This question about whether or not the filmmakers acted as an arm of law enforcement harks back to Jarecki’s concerns about collaborating with police. As noted, he wanted to keep police informed but not become involved with their investigations because of a fear that he would then become an agent for law enforcement. This would have had legal and journalistic implications. The question of whether Jarecki did become an agent for law enforcement will likely become a key one at Durst’s trial. It is probably one of the key reasons he has chosen not to do any more media interviews about The Jinx.
As the LA Times notes:
For their part, the filmmakers said they expect they will be called as witnesses, and they canceled a raft of planned interviews, saying it would be inappropriate to comment.
The documentary and the questions it raises loomed in the background Monday as Durst remained in a New Orleans jail after his arrest there Saturday.
Answers to all the pressing questions raised by Durst’s arrest and the final episode of The Jinx may not be answered for some time. If there is a murder trial, there will certainly be keen media interest and perhaps a few answers. But until then, nobody knows.
There’s also the matter of Robert Durst’s wife. While Durst was arrested for the killing of Susan Berman, the mystery of his wife’s disappearance still haunts everyone – and evidence uncovered by The Jinx may stoke the fire of a new investigation.
Indeed, Marc Smerling believes the interview tapes from The Jinx will be important. He says Durst’s statements about the disappearance of his wife key to that investigation:
Another hugely important piece of evidence was the original interview. It’s comprehensive. You’re seeing a small part of it. Bob admits to lying about his alibi after Kathie disappeared. His whole demeanor is evidence, in my opinion.
(Cut Your Teeth)