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Is Robert Durst's alleged confession admissible in court?

Correspondent Erin Moriarty will have the latest on the case in "48 Hours" Presents: The bizarre saga of Robert Durst, airing Saturday, March 21 at 10/9c on CBS.

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

Those are the words Robert Durst - an eccentric millionaire acquitted of one murder and long suspected in two others - apparently spoke to himself in the bathroom following the conclusion of an interview he gave to documentary filmmaker Andrew Jarecki. It's unclear whether Durst forgot he was still wearing a microphone.

The 71-year-old Durst's bizarre rambling statement aired Sunday night on HBO as part of the finale of the six-part documentary "The Jinx" - which came just hours after he was arrested in New Orleans on a charge of murder in connection with the 2000 death of Susan Berman, his longtime friend and confidant, in Los Angeles.

Robert Durst waives extradition, will stand trial in California 03:18
Durst was long suspected in the murder of Berman, who was found shot to death in her home near Beverly Hills. His arrest in the case was the result of new information developed over the last year, Los Angeles police say.

Jarecki, the filmmaker of the HBO documentary, told CBS This Morning on Monday that he gave the bathroom audio tape to authorities many months ago after he and his colleagues discovered it during their editing process.

"We always leave the microphone on him. He knows that and he went to the bathroom while it was recording," Jarecki said of Durst. "It wasn't until months later that we had an editor listening to material that we sort of had just left behind... and we discovered that we had this shocking piece of audio."

It wasn't immediately clear whether Jarecki ever confronted Durst about the words recorded in the bathroom or what exactly Durst meant by them - perhaps that will be left up to a jury.

48 Hours' Crimesider spoke to legal experts who say Durst's bathroom monologue will likely make its way into the courtroom.

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.

Only after the defense can prove the filmmakers were working on behalf of law enforcement, can they argue that the bathroom audio violates Durst's reasonable expectation of privacy, Barton says. Still, it would be a challenge, she says, seeing as how Durst agreed to be mic'd for the interview and apparently forgot to take it off before going into the bathroom.

Based on what she knows of the case, Barton says it doesn't seem like the filmmakers were working on the behalf of law enforcement.

"Even though [the filmmakers] had clearly been in touch with law enforcement officials, it doesn't seem like there's enough of a relationship there that they were essentially government agents," she says.

Although Burton says it's likely the alleged confession will make its way into court, the question still remains: how valuable is it?

"It sort of sounds like the ramblings of a guy with a couple of screws loose. Even if it comes in, it's not an automatic conviction," she says.

Eugene O'Donnell, a former NYPD officer and former Queens Assistant D.A. agrees that the alleged confession is likely to be admissible in court, but, he says, the weight that the jury gives it remains to be seen.

He says the defense will likely try to undermine the reliability of Durst's statements by arguing he was "just letting off steam," instead of "directly acknowledging responsibility [for the murders]."

But, according to O'Donnell, authorities likely anticipated these arguments and took measures to "plug holes that the defense will attack."

He says that could be why authorities waited so long to close in on Durst and make an arrest even after they already had the bathroom audio in their possession.

Durst's bathroom monologue allegedly occurred just minutes after Jarecki confronted him on-camera about compelling evidence he and his colleagues uncovered; a letter Durst wrote in 1999 which bears a remarkable resemblance to one sent anonymously to Beverly Hills police alerting them to Berman's "cadaver" within days of her death.

Did Robert Durst seal his fate with "Kill them all" confession? 09:35

Both letters misspelled Beverly as "Beverley" and the handwriting on each appears quite similar.

When faced with the new evidence, Durst acknowledged similarities in the handwriting and then became visibly uncomfortable before the interview concluded and he departed for the restroom - still wearing his live microphone.

Once in the restroom, he apparently began speaking to himself, saying, "There it is. You're caught" and then "What the hell did I do? Killed them all of course."

James Cohen, a defense attorney and professor of law at Fordham University, told Crimesider he believes Durst's confession is admissible in court and will act as "very powerful evidence" for the prosecution.

"The defense, I think, will do two things - one is repeat it to death rather than hide from it to try to soften the impact on the jury. That was done in the Rodney King case," Cohen points out. "They repeated the videotape of him being beaten... and the theory was that this sort of dulled the impact."

"The other thing they're going to do is they're going to parse it," Cohen says. "They're going to take apart each letter, put it upside down, shake it and then do it again. They're going to parse it to death. They'll assess the cadence - how quickly or slowly the words were said and they'll assess the spacing between the words in an effort to suggest to the jury that there's reasonable doubt that this is a 'confession.'"

Attorney Alan Dershowitz, who served on O.J. Simpson's defense team and is currently a professor of law at Harvard, told CBSNDurst's alleged confession "can easily be interpreted as ambiguous" and says it will likely be the central point of prosecution.

Robert Durst arrest pic
The booking photo of Robert Durst, as provided by the Orleans Parish Sheriff's Department Orleans Parish Sheriff's Department

"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.

Berman's murder is not the only crime Durst is suspected of committing. The 71-year-old has also long been a suspect in the 1982 disappearance of his wife, Kathleen, in New York. Her body has never been found and no charges have been filed.

After Berman's 2000 murder, Durst moved to Texas, where, curiously, he lived as a mute woman in a boarding house until 2001, when the body of Durst's neighbor - Morris Black - was found floating in Galveston Bay.

Durst ultimately went on trial for Black's murder and was acquitted, despite admitting to using a paring knife, two saws and an ax to dismember Black's body before dumping the remains. Durst's defense team successfully argued Durst shot Black in self-defense.

Dershowitz says it's likely that a jury hearing the Susan Berman case will not hear about Durst's other alleged crimes and will also not have seen the HBO documentary.

Chip Lewis, one of Durst's defense attorneys, told CBS News Radio Sunday night he was underwhelmed by the new evidence introduced in the HBO documentary.

"I frankly expected more than bathroom mutterings or musings," he said.

CBS News' "48 Hours" correspondent Erin Moriarty reports Durst's attorneys plan to argue that the bathroom audio is a violation of Durst's reasonable expectation of privacy and should not be admissible in court.

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