CAN RAP LYRICS BE USED AGAINST YOU?

A recent article shows that prosecutors are using the defendants’ rap videos and lyrics against them in criminal trials. Defendants’ gangsta rap, where the rappers use violent lyrics and assume violent, thuggish characters is being shown to juries and judges. Many people fear that when the judge and jury hear it, they assume the defendant is guilty of the crime charged because he is a “bad person” and should either be punished or taken off the streets. In some cases, generic rap lyrics are being used to bolster applications for search warrants.

In State v. Skinnera decision which came out yesterday, the New Jersey Supreme Court held that rap lyrics were inadmissible in an attempted murder case because they served no other purpose than as “other bad acts” evidence. In Florida this rule is pretty much the same as the one in New Jersey:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity. 90.404(2), Florida Statutes.

The point of the “other bad acts” rule is to keep the jury from deciding guilt based on other bad things the defendant may have done or said in the past. From Skinner:

Put simply, a defendant must be convicted on the basis of his acts in connection with the offense for which he is charged. A defendant may not be convicted simply because the jury believes that he is a bad person.

So unless there is some “nexus” – some logical relationship between the rap lyrics and the elements crime charged – then the prior bad acts are inadmissible.

But what if the lyrics talk about the details of the crime, or talk about how the defendant wants to do something bad to the defendant? That’s the nexus, and they will probably be admissible in the trial. Talking about the crime or the victim satisfies the requirement that there be a logical relationship. To use an example, if Johnny Cash had been spotted in Reno at the scene of a random shooting of a man before he wrote “Folsom Prison Blues,” then that song could probably be used against him in a criminal trial to show motive (“just to watch him die” apparently).

Keep in mind that rap lyrics can also be admitted to rebut “good character evidence” put on by the defendant. Basically, the rule is this: if the defendant doesn’t put on any evidence about his character, then the prosecution cannot try to admit any character evidence either. But if the defendant decides he wants his pastor to testify about how great, kind, and generous of a person he is, and how he helps old ladies across the street, then the prosecution can introduce the defendant’s rap lyrics about mowing down old ladies with his Tec-9.

Additionally, Florida law holds that evidence should not be admitted and shown to the jury when its “probative value” – meaning its relevance – is substantially outweighed by the danger it will unfairly prejudice the jury. This was part of the basis for the Skinner opinion – that the lyrics were so violent and provocative that they unfairly prejudiced the jury against the defendant.

So to answer the question: Yes, a defendant’s rap lyrics can be used against him,  as long as they have something to do with the crime.

Note: the ACLU has asserted that rap lyrics deserve a heightened level of protection as art, above and beyond the evidentiary protections I’ve mentioned above. This argument hasn’t caught on, and honestly I don’t expect it to. While you could argue that using confessional lyrics against the artist in trial is a First Amendment violation and would chill free expression in the future, really the better protections are spelled out in the federal and state evidence codes that I’ve discussed above. A blanket ban that prohibits any speech that the defendant labels as art from being used at trial would be unwieldy and overbroad. Instead the “bad acts” rule as well as other evidence rules should act as an accurate filter of which statements are introduced at trial, and which aren’t.