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Robert Durst’s bathroom folly

(CNN) — The end of “Jinx,” the six-part HBO documentary about real estate heir Robert Durst, has launched a debate about whether some potentially incriminating statements Durst made while in the bathroom to a microphone may be used in his criminal prosecution.

Durst, as you probably heard, is charged with murder in a killing in California 15 years ago, and he has been suspected, but never charged, in the disappearance of his first wife in New York.

Whether or not the taped words of an accused person will be admissible against him involves a look at the rules of evidence and the Constitution, as well as our fast-evolving ideas about privacy. While Durst’s attorneys can make a number of arguments to suppress these statements and bar their admission at trial, the bathroom confessions will likely be factored in.

Let’s go over three main reasons why:

1. Is this inadmissible hearsay? Probably not.

Hearsay is defined as a statement made outside of court that is offered in court for its truth. It really just means a witness can’t testify at trial about someone else’s version of the facts.

If a sentence starts with “He told me” or “She said that,” it’s probably hearsay. As general proposition, hearsay is supposed to be inadmissible, but the exceptions nearly swallow the rule itself — so much so that many commentators have suggested abolishment of the exception-riddled rule itself.

Perhaps the largest and best known category of hearsay exceptions is admissions and confessions. These can be admitted against a defendant. Why? Well, the idea is that these statements are reliable. The thinking is that people don’t ordinarily confess to something unless they did it.

2. Is this a violation of Durst’s constitutional privilege against self-incrimination? Again, probably not.

The rules of the U.S. Constitution are a different matter. The Fifth Amendment’s self-incrimination clause states that “[n]o person … shall be compelled in any criminal case to be a witness against himself …”

By definition then, compulsory self-incrimination requires, well, “compulsion.” And not just any compulsion. The kind of compulsion targeted by the Fifth Amendment is governmental coercion.

Durst may still contend that his “confession” wasn’t voluntary. It’s true that confessions deemed “involuntary” are often excluded at trial under the Due Process Clause of the 14th Amendment. However, a confession will only be considered involuntary if it is the product of police activity.

Voluntariness is not an issue when admissions are made to a private person, such as a journalist.

What of Durst’s likely claim that the filmmakers were essentially acting as an arm of the police? Sometimes law enforcement exercises so much control over a civilian that his private actions become police action, constitutionally speaking.

This is not an easy case for a defendant to make, though. Durst would have to establish that the HBO interviewers were direct agents of the police and that the interview was coerced by police.

The police undoubtedly benefited from the work of these citizen documentarians. But the police frequently benefit from the work of good Samaritans or citizens volunteering information, photos or iPhone videos. The television show “America’s Most Wanted” has been premised on this idea for decades. Given the defendant’s burden here, it’s unlikely that he can convince a judge that, in light of all the circumstances, filmmakers acted as an instrument or agent of police.

The bottom line is this: A voluntary confession must be the product of a rational intellect and a free will, not physical intimidation or psychological pressure. How was Durst “pressured” when alone in the bathroom? However, his attorneys might argue that some mental impairment rendered him incapable of the necessary rational intellect and free will.

3. Can Durst argue for some “reasonable expectation of privacy” that was violated by his being taped in the bathroom? Not in our modern world, and not in this case.

Perhaps in decades past, a court might be offended at an audio recording of someone in the bathroom, but things have changed.

Subjects of documentaries and reality TV stars alike routinely sign contracts allowing camera crews to pin a microphone to their lapels and follow them around 24 hours a day. Moreover, everyone in the television news business has a story about some famous correspondent going to the bathroom and forgetting about their “hot” mic. In this brave new media world, the rule appears to be: You wear a lavalier microphone at your own risk.

This is why defense attorneys tell clients to not give interviews. No matter how good an interviewee a client may be, audio and video editors have an uncanny knack for isolating the less than flattering sound bites. Admitting to killing “them all” would fall into this category.

When it comes to giving interviews, it’s probably better for defendants such as Durst to keep silent and be thought a fool than to open your mouth and remove all doubt, especially doubt of the reasonable kind.


Originally posted at http://www.cnn.com/2015/03/18/opinions/cevallos-hbo-robert-durst/index.html

 

Should jury take a field trip in Aaron Hernandez trial?

(CNN) — Jurors will get to see Aaron Hernandez’s trophy case when they visit his home during the former New England Patriots star’s murder trial, a judge ruled last week.

The Assistant District Attorney asked the court for permission to hide the trophy case, indicating the defense was trying to engage in “strategic manipulation” or impress the jury with trophies or medals.

The defense’s position was simple: That’s the way the house looked when the alleged victim was killed … and that’s how it should be shown.

Trophy cases aside, the rest of us defense attorneys and prosecutors must be wondering about a threshold issue:

What’s with the jury excursions in these kinds of cases? This doesn’t happen in most trials. Why the special treatment?

The decision whether to grant a “jury view” rests, as with many things, in the sound discretion of a trial judge. Courts, meaning judges, have the inherent power to allow a jury in either a civil or a criminal case to view places or objects outside the courtroom. Whether to permit a jury to conduct a view in a particular situation is a question committed to the trial court’s informed discretion.

Practically, what that likely means is, the judge just conducts a balancing test by weighing “what’s the point?” against “do I really feel like going out in the cold for a jury view?” This calculus usually yields the following result in a run-of-the-mill case: motion denied.

There is a growing bifurcation of the criminal trial system and it has nothing to do with race. It has nothing to do either with the wealth of the defendant. Simply put, there is a growing chasm between the way regular trials are conducted and the way high-profile trials are conducted.

Most murder trials do not conduct jury views of the murder scene. On one hand, parties should be able to request jury views where it would be important for a jury to view a scene in person, and photographs or video are inadequate substitutes.

Of course, on the other hand, establishing a defendant’s absolute right to a jury viewing would not work either, because parties would inevitably abuse the system; the courthouse would look like a yellow bus depot dispatching a fleet of juries on field trips: depressing, macabre field trips.

As gruesome as the facts are, the Hernandez case is not all that different from thousands of other murder prosecutions, except that it is a trial being covered by the media. Coverage means scrutiny. Scrutiny means the judge and the lawyers on either side will err on the side of caution. Erring on the side of caution means motions and requests will be considered that would not ordinarily be considered.

It’s a common misconception that only rich or famous defendants get this special consideration by the courts, but that’s not the case at all. Jodi Arias was an indigent, noncelebrity defendant, and Arizona squandered half its GDP considering every request from both sides in that case. Race really isn’t a factor either. George Zimmerman’s trial judge entertained many creative motions from both sides, and, contrary to initial reports, he is Latino.

High profile cases are terrific for both legal professionals and the general public, because parties are allowed to develop arguments they otherwise might not be allowed to make in an ordinary case. But it also gives the public a false impression: They don’t get a sense of the conveyor belt fashion in which the vast majority of criminal trials are conducted.

There are two tiers of justice emerging in the United States. You don’t need to be a celebrity defendant to have access to the subtle accommodations of a high-profile case.

You can be an unknown person, as long as you meet certain criteria. You have to be attractive (Jodi Arias or Scott Peterson). You have to inspire a controversial racial dialogue (George Zimmerman or Officer Darren Wilson). Or, as Hernandez or O.J. Simpson can tell us—having a career in the NFL doesn’t hurt either.


Originally posted at http://www.cnn.com/2015/01/14/opinion/cevallos-jury-excursions-aaron-hernandez-trial/index.html