Our firm has represented clients in serious criminal cases for over 20 years. When these cases appear in the news, Attorney Page Pate is often contacted by media outlets for his thoughts on the case.
In this case, Robert Durst was charged with the murder of his friend, Susan Berman, who was allegedly a witness to the prior disappearance of Mr. Durst’s wife. The prosecution in this case has filed a request to record the testimony of witnesses against Mr. Durst in case they die or are unable to testify, because they believe Mr. Durst is a threat to a key witness against him. Mr. Durst’s attorneys are disputing this request because they do not believe Mr. Durst is a threat to anyone because he is old and in jail.
CNN interviewed Page Pate, who is recognized as constitutional attorney and legal analyst, and was asked about the prosecution’s attempt at preserving the witnesses’ testimony. He says “Well, I don’t think there is any reasonable probability that Durst can personally cause any harm to these potential witnesses, but he has a lot of money, a lot of resources. And if he wanted to reach out and actually have these witnesses, if not killed, at least intimidated, it’s certainly a possibility, so I don’t see any harm in recording this testimony as long as the defense gets an ample opportunity to cross-examine these witnesses. And that’s what concerns me. I don’t think they have sufficient evidence about what these witnesses may say. The prosecution needs to give that to them well in advance of this hearing.”
Page is asked what the harm would be in recording the witnesses’ testimony if it is only used in the event of a witness’ death before trial, and he explains how that is a good point and “in a civil case, this happens all the time. Depositions are taken, videotape is taken of a witness being cross-examined, being questioned, well in advance of trial, and then that tape can be used to trial. Different in a criminal case though, because of these confrontation rights that we’ve discussed. I don’t see any harm in them preserving that testimony in case one of these witnesses is truly unavailable for trial by death or otherwise. But they cannot use that tape unless the defense has that right to cross-examine the witnesses that we’ve talked about. And that’s the reason they’re setting this down for a hearing.”
When asked for his speculation as to the outcome of the hearing in this matter, Page responds that he thinks “the judge will ultimately allow the prosecution to record the testimony, but the judge will be very reluctant to have that testimony used at trial unless there is a clear showing that the witness is truly not available, and that would be necessitated by death. You also have to think about the jury’s standpoint in a situation like this. If the prosecution wants their witnesses to come off as best as they possibly can, they want them there in person, they want them there to testify to the jury. So, I think if you’re a jury, or you’re on the jury, and you’re hearing the evidence, you want to see live witnesses. And so, the court’s going to do everything that it can to make sure that happens.”
The key witnesses in this case ultimately did provide recorded testimony against Robert Durst implicating him in the murder of Susan Berman, in case they are unable to attend the trial currently scheduled for January 13, 2020. We will continue to follow this case.
Transcript:
Martha: New court action set for next month in the bizarre legal saga involving real estate heir, Robert Durst, who appeared to confess to multiple murders during a TV documentary. Well. now, the prosecution says, “He’s a threat to a key witness in the new murder trial against him.” His defense team is reacting to the charges saying, “He’s frail, in a wheelchair, and in jail,” asking, “How big a threat could he really be?” Still, the prosecution is pushing to record witnesses on video, so their testimony could be preserved in the event they die or are killed. A judge set a hearing on the matter for January 6. So, joining us now, criminal defense attorneys, Page Pate and Monique Pressley. Thank you both for being with us.
Monique: Thank you for having me.
Martha: So, the premise here is…
Page: Thank you.
Martha: …that Durst is suspected of killing his friend, Susan Berman, allegedly because she was a witness in the disappearance of Durst’s wife. The implication being, he’s already killed one witness, he could kill another. He was also charged in the death of a neighbor, but he was never convicted in either death, and defense attorneys say that this suggestion is just meant to taint the jury pool. Page, what do you say?
Page: Well, I don’t think there is any reasonable probability that Durst can personally cause any harm to these potential witnesses, but he has a lot of money, a lot of resources. And if he wanted to reach out and actually have these witnesses, if not killed, at least intimidated, it’s certainly a possibility, so I don’t see any harm in recording this testimony as long as the defense gets an ample opportunity to cross-examine these witnesses. And that’s what concerns me. I don’t think they have sufficient evidence about what these witnesses may say. The prosecution needs to give that to them well in advance of this hearing.
Martha: Yeah. A lawyer, on earlier, said that this would violate Durst’s right to confrontation at trial and it would also, as Page just mentioned, limit the ability for cross-examination. They would be able to cross-examine on the videotape, but the question is, are things going to come up later during the trial that they won’t be privy to at the time that they do the videotapes in advance.
Monique, what about that?
Monique: I agree 100% with Page and with the lawyer who appeared earlier. There is definitely a violation of the defendant’s right to confrontation against witnesses that are being called to testify, and it’s important that they give over all the evidence that they have, not just evidence that relates to the specific witness testifying. Otherwise, it’s not a fair process. Certainly, any witness can end up dying, or incapacitated, or lose memory, or be under some oath or threat during the time between testifying and the trial, but that’s one of the risks that’s always inherent in the process. I don’t think just because this person is a wealthy defendant that the prosecution can play by new rules.
Martha: Well, the prosecutors are emphasizing that the video would only be used if a witness died before their in-person testimony. So, what is the harm, Page, in taping the testimony just as a back-up in case something happens before the in-court testimony which is scheduled for mid-February?
Page: Well, that’s a good point. I mean, in a civil case, this happens all the time. Depositions are taken, videotape is taken of a witness being cross-examined, being questioned, well in advance of trial, and then that tape can be used to trial. Different in a criminal case though, because of these confrontation rights that we’ve discussed. I don’t see any harm in them preserving that testimony in case one of these witnesses is truly unavailable for trial by death or otherwise. But they cannot use that tape unless the defense has that right to cross-examine the witnesses that we’ve talked about. And that’s the reason they’re setting this down for a hearing.
Martha: All right. So Monique, is there a concern also about just a precedent being set if this is allowed in this case, that it’s going to be an extra step that is now going to be carrying in just about every trial because there is a potential for every witness to be intimidated or killed, I guess.
Monique: Well, absolutely. And this isn’t the first time that this has come up and courts have been clear, whether you’re dealing with a crime that’s involving drugs, or whether you’re dealing… and there’s a lot of witness intimidation there, or whether you’re dealing with a crime like this, where the alleged defendant is very wealthy. You’ve got the circumstance. So, courts are allowed to stretch what can and cannot be introduced here. They can preserve the testimony. They can use it for other things. They can use it to rebut, they can use it to confront other witnesses. But in order for it to be introduced on its own, it has to be the case that the defense has access to all of the evidence that they expect to come forward in order to properly confront and cross-examine this witness.
Martha: All right. So what do you suppose, Page, quick less word, what do you think the decision is going to be after hearing on this?
Page: Well, I think the judge will ultimately allow the prosecution to record the testimony, but the judge will be very reluctant to have that testimony used at trial unless there is a clear showing that the witness is truly not available, and that would be necessitated by death. You also have to think about the jury’s standpoint in a situation like this. If the prosecution wants their witnesses to come off as best as they possibly can, they want them there in person, they want them there to testify to the jury. So, I think if you’re a jury, or you’re on the jury, and you’re hearing the evidence, you want to see live witnesses. And so, the court’s going to do everything that it can to make sure that happens.
Martha: All right. Page Pate, Monique Pressley, thank you both so much.
Monique: Thank you.
Page: Thank you.
