(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 itselfso 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 us 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
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