Lyrics Were The Case: Our Legal Experts Weigh In On The Increasing Use of Rap Lyrics As Evidence In Criminal Trials

Rapper Tiny Doo faces charges that his rap lyrics allowed him to benefit monetarily from a crime fellow gang members allegedly committed.

While music listeners commonly evaluate rap lyrics to judge the talent behind the rappers who make them, controversy and outrage has been brewing as to whether criminal trials should include rap lyrics as evidence to judge the guilt behind the defendant-rappers who author them. Should rap lyrics only be considered fiction--and thus outlawed in criminal courtrooms as evidence against the rappers who write them? Conversely, do rap lyrics sometimes blur the lines between fact and fiction, thus justifying their use as evidence in criminal trials? Or are there issues of bias and discrimination toward rapper-songwriters and rap in general as to why rap lyrics have become sources of evidence in criminal trials?

Those are some of the issues  and questions that have been sparking much impassioned debate across the country, as the use of rap lyrics as evidence of criminal conduct appears to be an increasingly frequent practice in U.S. courtrooms. In June, Brooklyn rapper Uncle Murda was cross-examined about specific lines in his rap lyrics during the murder and racketeering trial of his colleague Ronald Herron AKA Ra Diggs. Some 10 days ago in a San Diego courtroom, local rapper Tiny Doo AKA Brandon Duncan was charged with involvement in an attempted murder for which he appears to have a clear alibi. Mind you: Tiny Doo isn't charged with pulling the gun himself, but the prosecution is nonetheless pursuing a potential life sentence against him under the shocking premise that by being a documented member of the gang allegedly responsible for the shootings, and also releasing a rap mixtape, that Tiny Doo is a conspirator because the shootings allowed him to gain status and increase CD sales. Yeah...let that sink in.  Additionally, just this past Monday Michael Render AKA Killer Mike weighed in on the case of Elonis v. US currently going before the US Supreme Court in an op-ed for USA Today co-authored with University of Virginia professor Erik Nielson, wherein Elonis' amateur rap lyrics, posted to Facebook, are being prosecuted as a crime in and of themselves. Much of the current debate, however, began in the wake of the Vonte Skinner trial.

In 2005, Vonte Skinner allegedly shot and paralyzed a man named Lamont Peterson. The evidence the prosecution relied on in Skinner’s 2008 trial regarding the alleged shooting turned in part upon a 13-page notebook found in Skinner’s car, which contained rap lyrics boasting stories of Skinner's violence toward others. These book-of-rhyme pages were read aloud to the jury during Skinner’s trial and lead to Skinner’s conviction of attempted murder with a 30-year sentence. Four years later in 2012, the NJ appellate Court overturned Skinner’s conviction because they felt that the lyrics should never have been admitted on the grounds that they were prejudicial to the jury. However, the state then appealed the matter to the NJ Supreme Court which held in August that it was improper for the State to submit rap lyrics to a jury in a criminal case where the lyrics were not directly connected to the crime itself. According to the ACLU, "the NJ Court recognized that rap lyrics – including violent and profane rap lyrics – as a form of artistic expression, but one that many people find distasteful... could improperly prejudice a jury who reads them."

While the NJ Supreme Court holding has provided some progress with this practice, it's  been reported that  there were 18 cases  last year where courts considered rap lyrics as evidence in criminal trials (a number that does not include these most recent examples) and that they were admitted as evidence in 80% of them. As rap music enters the courtroom again and again, we decided to get some expert advice, tapping the legal acumen and opinions of three well-known criminal defense lawyers in NY to get more insight into the issues and concerns surrounding the admission of rap lyrics as evidence in criminal trials. And if you are a poet, MC or gangster-on-wax yourself, here's what you need to know:

Pierre Bazile, a former NYC Police Officer and a current criminal defense attorney at Pierre Bazile Esq. P.C discussed specificity concerns:

“As far as using rap lyrics as evidence, there is a general prohibition, as hearsay, against using out-of-court statements to prove the truth of the matters asserted therein. There are exceptions to this principle. Two, in particular: the Party Admission, and the declaration against penal interests."

The takeaway:

"Performers should be wary of being too specific in their lyrics. If you put out a song and the lyrics claim "I shot John Jones in 1993, just because he was bothering me!"  That lyric might be admissible against the artist in a proceeding for the homicide of John Jones. Artists would be well advised to avoid specificity in their lyrics.”

Todd Spodek, Criminal defense lawyer at Spodek Law Group, emphasized using limiting instructions to juries:

"It's one scenario if the lyrics are a direct confession, or an admission of a material fact. It is a completely different scenario when the DA's office is extrapolating criminal culpability from metaphors and braggadocious tales within the lyrics."

The takeaway:

"Before any rap or songs lyrics are introduced at trial, a pre-trial motion in limine should be made outside of the jury. The trial judge should conduct a thorough analysis of the probative value of the particular lyrics and song, as opposed to the prejudicial value. Additionally, a limiting instruction must be given to the jury, that the purpose of this evidence is for the jury to consider the lyrics and songs as an admission, confession or neither. Certainly for no other purpose.”

Ron Kuby, Criminal Defense attorney at The Law Office of Ron Kuby, and acclaimed Radio/TV personality discussed how there may be issues of discrimination against rapper-defendants, versus defendant-songwriters of other music genres :

“White people’s --American white people’s--music is and has always been mindbogglingly violent--and no one has ever imputed the violence in the lyrics to the singer or songwriter. When Joan Baez wiltingly sings of Willy shoving a knife into the chest of his girlfriend because she won’t marry him, in the traditional Banks of the Ohio Song, nobody thinks that Joan is advocating killing one’s girlfriend over a refusal of marriage. American country western music is probably among the most violent, from Steve Earl’sCopperhead Road --where you have the fairly clear execution of a government tax collector--and of course Johnny Cash.  People like to site the lyrics of Folsom Prison Blues: "I shot a man in Reno just to watch him die..." but that is by no means the extent of the music that Johnny Cash made popular involving murder. Johnny Cash has a whole album of murder songs, including a song called "Delia's Gone," where he describes, in quite some detail, hunting down his ex-girlfriend Delia; finding her; tying her to a chair; shooting her once in the side; and when shooting her with the second shot, she died--but it’s a song. In all fairness, and to take the "Delia" song as an example, if there was  in actuality a woman who was tied to a chair in the room and place Johnny Cash describes, and she was shot twice, and Johnny Cash was in the area, then the song might under those circumstances be admitted, but that would be a highly unusual case…

The takeaway:

               #crimingwhilewhite