( 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 ca n'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 do n'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 '' was n'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 .
Robert Durst made some potentially incriminating statements at the end of CNN 's `` Jinx '' Danny Cevallos : Durst 's attorneys will want to bar their admission at trial , but they will likely be factored in .