April 2nd, 2015
Robert Durst case; is there a privacy concern on his alleged confession?
By: Tomás Kubick
Robert Durst, a real state businessman and millionaire, is being charged with the murder of his friend Susan Berman. Those facts alone do not have special signification for privacy law. The twist on this case is that as the press has stated one key clue that led to Durst’s detention is an audio recording on which he allegedly confesses the murder. There may be a privacy concern of how that record.
HBO was filming the documentary “The Jinx: The life and Deaths of Robert Dusts” which investigated Durst’s life and his relation with three murders, included Susan Berman’s. On one interviewed conducted to prepare the documentary, Durst was faced with evidence that supposedly incriminated him, evidence that he denied. Shortly after, he went to the bathroom and on solitude he stated, “What the hell did I do? Killed them all, of course”.
Durst’s lawyers have announced that he will declare himself innocent and surely will try to exclude HBO’s recording from trial. One strategy to do so could involve raising privacy concerns issues. Defendant could argue a breach of his fourth amendments rights. To do so, they should characterize the recording as a search and somehow link it with a governmental investigation regarding with this case, which is unlikely to happen.
Notwithstanding, defense can argue that the recording breaches The Wiretap Act (18 U.S.C. §§ 2510-2522). In case that the recording was obtained with breach to the act, there is an exclusionary rule. The Wiretap Act does not apply if one of the parties of the communications consented. Under this premise defendant will try to argue that he consented to be recorded on the set but not outside of it, even though he agreed that any record of him could be used as HBO deemed reasonable. This issue will be the key issue because if it is found that his consent was just for “on stage”. If this is believed this way, it may be sustained that every person has a reasonable expectation of privacy if he is alone in a bathroom.
On the other side, it may be hard to argue that a person voluntarily wearing a microphone did not gave consent to be recorded. Even in such situation The Wiretap Act may not apply. For a communication to be deemed oral, the person involved on it must “[exhibit] an expectation that such communication is not subject to interception”. It can be sustained that a person wearing a microphone does not exhibit such expectancy.
As exposed, there are serious privacy law question on Mr. Durst’s case with arguments balancing on each side of the dispute. It will be the task of courts to answer them and to continue shaping the reaches of this topic on criminal procedures.