If you are under investigation by the police, it is important to remember the words of the Miranda Warning: anything you say can and will be used against you. This warning is intended to serve as a reminder that any statements you make during police questioning can be admissible in court. For many criminal defendants, however, a more complicated question arises: can statements you make outside of an official investigation be used against you.
One famous criminal defendant who is grappling with this question, and whose story is playing out in the headlines, is Robert Durst. Durst is the son of a New York Real Estate magnate. He is also a suspect in the death of three people: his first wife, a friend, and another man. HBO made a documentary about Durst, and while Durst was still wearing a microphone that was recording, he reportedly went into a public restroom, looked in the mirror, and said: “What the hell did I do? Killed them all, of course.”
Durst was subsequently arrested for murder, raising questions about whether his statement will be admissible in court.
When is a Statement Admissible?
Myriad legal arguments could be raised to prevent Durst’s bathroom statement from being presented to the court during a murder trial.
- He could argue that the statement should be excluded entirely because he had an expectation of privacy while in the bathroom.
- He could also argue that the taping of the confession was illegal under Title III of the 1968 Wiretap Act, which bans unauthorized, non-consensual interception of wire, electronic, or oral communications by both private parties and government agencies.
- A hearsay argument could also be made. Hearsay rules generally prohibit the presentation of statements made outside of court that are offered to prove the truth of the matter that is being asserted.
It is unclear whether these arguments will prevent the potentially damaging statement from being presented as evidence if Durst’s case goes to trial. If the statement is admitted in court, Durst’s own words could potentially help prosecutors to secure a conviction.
While Durst’s case is a high profile one, it is important for anyone who is under investigation, or who may have broken the law, to remember that what you say can be used against you in some cases even if you do not say it to the police. Defendants have been arrested for Facebook posts about hitting a car while driving drunk, have had their Facebook confessions of tax fraud read aloud in court, and have been arrested for bragging about armed robbery on Facebook.
Confessions made outside of court, whether on tape, on Social Media, or to another person, may not always be accurate, and may not always be admissible. Detailed confessions that contain unpublished information about the crime are more likely to be useful evidence for the prosecution, but it will always be the prosecutor’s burden to prove you actually made the statements.
For any out of court statement to be admissible, it is up to the prosecutor to argue that the statement was not obtained through government actions or coercion, was not made when you had a reasonable expectation of privacy, and falls within a hearsay exception. Prosecutors could argue, for example, that Durst’s statement should be considered a spontaneous statement or excited utterance and thus admissible despite hearsay rules. A list of hearsay exceptions can be found in the Federal Rules of Evidence, Rule 803.
Rules on admissibility of evidence are complicated, and an experienced criminal defense attorney can evaluate evidence prosecutors seek to use against you and petition the court to suppress any evidence obtained in violation of your legal rights.
You should also have an attorney present whenever you are questioned by law enforcement so your lawyer can advise you on what questions you should, and should not, answer. Avoiding statements that could sound like confessions as part of filming a television documentary is, of course, also advisable.
