Constitutional Law Criminal Law Entertainment Law

New Miranda Warning: Anything You Rap Can and Will Be Used Against You in a Court of Law!

Criminal courts around the country have been witness to a new phenomenon in trial evidence: rap lyrics written or recorded by the defendant used against them in their criminal trials. According to a survey by the American Civil Liberties Union, this evidence was offered in at least 18 reported cases around the country and the lyrics were admitted into evidence about 80% of the time.

Just this past August, the Nevada Supreme Court, in a split decision, upheld the use of rap lyrics written by the defendant in his homicide trial. Khali Holmes was found guilty of murder and robbery after prosecutors claimed raps he wrote while waiting for extradition to Nevada were confessions to the crimes. Holmes, along with his accomplice, Max Reed, were accused of killing Kevin “Mo” Nelson after robbing the alleged drug dealer and record studio owner of jewelry in 2003. Nelson’s assailant tore off Nelson’s shirt and chain necklace, pistol-whipped him, and then tried to drag Nelson from the parking lot into the studio without success. Frustrated, Nelson’s assailant removed his ski mask and said, ‘I’m going to shoot this f*cking guy,’ which he did. Nelson staggered, then fell and died,” stated the ruling. Nelson was found with his pockets “bunny-eared” or turned inside out.

While in jail in California following his arrest, Holmes penned a song called “Drug Deala.” Part of the writings included the following lyrics:

But now I’m uh big dog, my static is real large. Uh neighborhood superstar. Man I push uh hard line. My attitude shitty n*gga. You don’t want to test this. I catching slipping at the club and jack you for your necklace. F*ck parking lot pimping. Man I’m parking lot jacking, running through your pockets with uh ski mask on straight laughing.

Holmes defense team argued that the lyrics were unoriginal and clichéd artistic expression (agreed) and should not be used as factual evidence. His lawyers believed the lyrics also prejudiced the jury against the defendant by amounting to prpoensity evidence. That is, that the evidence does not directly prove the crime but makes it appear more likely that the defendant committed the crime because of past behavior. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.The Nevada Supreme Court upheld the conviction in a 2-1 decision stating:

“It is one thing to exclude defendant-authored fictional accounts, be they rap lyrics or some other form of artistic expression, when offered to show a propensity for violence,” wrote Chief Justice Kristina Pickering in the majority opinion. “It is quite another when the defendant-authored writing incorporates details of the crime charged.”

Music AdvisoryFar more troubling is a case closer to home.The defendant Vonte Skinner was convicted in a 2005 shooting in New Jersey. At his trial in 2008, the prosecutor read thirteen pages of rap lyrics written by Mr. Skinner before the crime; some of the lyrics were written years before the crime occurred. According to a NY Times article about the case published yesterday, none of the lyrics mentioned the victim in Mr. Skinner’s case or offered any details about the crime for which he was charged.
The lyrics contained much of the content familiar to those who listen to “gangsta rap”: “In the hood, I am a threat/It’s written on my arm and signed in blood on my Tec/I’m in love with you death;” “I’m the dude to shoot at ya’ neck, shatter your life like a bottle of Becks. One and only to slice a dude like bologna, you don’t know me. I’ll watch you pricks die slowly, lay you stiff like a trophy.” The rest of the evidence against Mr. Skinner was from witnesses who couldn’t keep their stories straight; in fact his first trial (without he lyrics) ended in a hung jury. But the second jury convicted him of attempted murder and he was sentenced to serve 30 years in prison. An appellate court overturned the conviction stating:

We have significant doubt about whether the jurors would have found defendant guilty if they had not been required to listen to the extended reading of these disturbing and highly prejudicial lyrics

The government has filed an appeal to the New Jersey Supreme Court which is expected to rule sometime towards the end of this year. I can’t see the New Jersey Supreme Court overturning the appellate court. All states and the federal rules of evidence prohibit propensity evidence – Evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait or “He’s a bad guy – he must’ve done it.” These lyrics were pure propensity evidence. Unlike the Nevada case, it did not contain any evidence or details of the crime so it could not act as a form of jailhouse confession. The trend is finding its way into federal trials as well. In United States v. Foster, the Federal 7th Circuit Court of Appeals upheld the admission of rap lyrics in a drug distribution case to show the defendant’s knowledge of the “reality” around “urban life.” [Ed. Note: Fans of music will know that “urban” is synonymous for “black”]. In United States v. Stuckey, the 6th Circuit upheld the use of rap lyrics written by the defendant that exhibited his “negative feelings toward snitches” and described shooting witnesses, wrapping their bodies in plastic, and dumping their bodies in the road, which is what happened to the victim in the case.

While I guess it makes somewhat more sense to admit lyrics that specifically refer to the crime charged as evidence of a form of confession, the practice in those cases is also disturbing. Rap, especially gangsta rap, is all about bragging, bravado and boasting to build “street cred.” Someone who may not be connected to the crime might still want to rap about it to give the impression in his neighborhood that he did it or knows something about it. Do jurors really understand this? Should the defendant call an expert to explain it to them? There is already a large bias against gangsta rap that this evidence will feed into. In the Times article, written by two professors who have actually testified as experts in this area in court, a study was cited that showed that participants who were given basic information about an 18 year old black male were significantly more likely to believe the man was capable of murder if they were shown a set of violent and sexually explicit rap lyrics he was supposed to have written.

The judge in Skinner’s original trial got it incredibly wrong. Let’s hope the high court upholds the reversal and sends a clear message: propensity evidence of any kind is dangerous and that it comes in the form of rap lyrics makes it even more dangerous. Folks should be tried based on admissible evidence that relates to the crime charged either directly or circumstantially. Lyrics spit into a mike or written down in a journal should be treated as forms of expression and not as evidence.

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