Will Robert Durst’s ‘killed them all’ confession be admissible in court?

For decades, no one has been able to convict millionaire Robert Durst. Not after his wife’s disappearance. Not after his friend’s suspicious death. Not even after he admitted he killed and dismembered his neighbor.

But it may be Durst who does himself in with 11 words he muttered in a restroom:

“What the hell did I do? Killed them all, of course.”

Those comments were picked up on a microphone he was wearing for the HBO documentary series about him called “The Jinx.” Apparently, the real estate heir didn’t turn his microphone off when he went to the bathroom.

Durst now sits in a New Orleans jail after his arrest Saturday in connection with the 2000 death of his longtime friend Susan Berman in Los Angeles.

On Monday, California prosecutors said Durst was “lying in wait” when he shot and killed Berman because she “was a witness to a crime.” She had been shot in the head shortly before investigators were supposed to come ask her about the disappearance of Durst’s first wife in 1982.

Durst will be transferred to Los Angeles to face a first-degree murder charge. If convicted, he could face the death penalty.

When he goes to trial, could those 11 words be admitted in court?

Here, several legal experts weigh in:

Yes:

His lawyer could argue that he absolutely did. “Here’s what his attorneys are going to say: They are going to say that he had an expectation of privacy,” HLN legal analyst Joey Jackson said. “And as a result of that, putting this in context, he excused himself and went into a private bathroom.”

That argument might not fly, CNN legal analyst Jeffrey Toobin said. “That whole theory of the Constitution is that you have an expectation of privacy under certain circumstances when you’re dealing with the police. But here, he’s dealing with filmmakers.”

Furthermore, Toobin said, Durst had a microphone on. “You can’t have an expectation of privacy when you’re wearing a microphone. Yeah, he maybe forgot, but that’s not good enough.”

Yes:

The defense very well could, said Jackson, the HLN analyst. “The attorneys are going to further argue that there was governmental action in as much as HBO was working very closely with the authorities. And they’re going to say, isn’t it coincidental how his arrest comes on the heels of the final episode of this HBO documentary?”

CNN legal analyst Paul Callan doesn’t think that defense will work. “In criminal law, the police can’t wire somebody up. They have to give you Miranda warnings if they’re going to take a statement from you,” he said. “However, if a civilian is tape-recording you, as was the case here with HBO, that’s admissible in court if it’s relevant to the crime committed.”

Yes:

He could. Susan Criss was the judge during Durst’s 2003 murder trial in which he admitted to shooting an elderly neighbor and then dismembering him. She remembers how prosecutors didn’t use many of his admissions. “In our trial, he had been recorded on the phone talking to his wife and friends, making a lot of admissions, and the state never used that,” she said. “But he was aware that he had been recorded saying things that could implicate him in the murder that we were trying.”

No:

Probably not. Section 1220 of the California Penal Code says “evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity.”

In this case, Durst is the declarant who spoke those words, and if they’re used against him, they could be fair game.

Yes:

It’s a card the defense could certainly play. “It will be up to (defense attorney) Dick DeGuerin to talk about, and I think he’s going to have a field day with the idea that it wasn’t an answer in response to a question, (so) that’s meaningless,” CNN legal analyst Mark Geragos said.

Already, one of Durst’s attorneys has said not to read too much into his client’s offhand remarks. “Your honesty would lead you to say you’ve said things under your breath before that you probably didn’t mean,” attorney Chip Lewis told Fox News’ “Justice With Judge Jeanine.”

“We want to contest the basis for his arrest, because I think it’s not based on facts, it’s based on ratings,” DeGuerin told reporters Tuesday in New Orleans. “So we will continue to fight for Bob. We want to get to California as quickly as we can so we can get into a court of law and try this case where it needs to be tried.”

The prosecution could argue Durst knew what was going on. “Earlier in those interviews, in a previous interview for that very program, there was a break where he was caught practicing his testimony. And so he realized … he had a mic on,” said Criss, the judge from Durst’s earlier trial. “This is a third time he’s made that mistake. That’s amazing.”