I’ve written before about prosecutors trying to use a defendant’s rap lyrics against them in a criminal trial.  In one California case, the judge threw out a criminal conspiracy case that the prosecutors brought just on the basis of rap lyrics. The news is reporting that another judge is allowing rap videos to be used in a criminal trial. Is this what really happened?

Answer: not really / not yet.

A federal judge in New York is allowing prosecutors to admit the some of the defendants’ Youtube videos in a criminal trial. The defendants, Michael Garrett and Paul Rivera, are part of the “Together Forever Mafia,” a rap group which, according to prosecutors, also runs a criminal enterprise focused on murder, human and drug trafficking, and other crimes. Apparently they saw fit to upload videos to Youtube where they discuss various crimes and criminal charges. They also have multiple rap videos uploaded to Youtube.

The prosecutors argued that (motion here, – page 36) the all the videos could be introduced as direct evidence of the crimes charged. Instead of offering them as evidence of the defendants’ propensity (saying the’re bad people), the prosecutors are claiming that the defendants admitted to committing crimes in their rap videos.

The defense attorneys argued that allowing the videos to be introduced would violate the defendants’ First Amendment rights. Basically, the argument goes that if the government is able to introduce a person’s artistic expression against them at trial, that is an unconstitutional violation of freedom of speech.

The judge drew a distinction between the rap videos and the videos that seem to be filed in real-time. The judge ruled that the real-time videos that depicted discussions between the alleged gang members could be admitted, because the “are not stylized in a way that appears to be for promotional or entertainment purposes” and should not violate the First Amendment. Instead they appear to show things as they actually happened.

The judge then ruled that prosecutors could admit excerpts of the videos showing the defendants with cash, guns, and drugs, because they are very relevant to the crimes they are charged with. The judge also noted that the defense attorneys are free to argue in closing arguments that these are props, not the real thing.

The judge also reserved ruling on the other rap videos, and asked the prosecutors to separate out any parts where the defendants appear to just be talking, not rapping. By reserving ruling the judge isn’t making a call either way – it’s lawyer-speak for “let’s decide what to do with that stuff later.” The judge also speculated that if the prosecutors wanted to introduce everything it would probably be “cumulative evidence” – the law’s way of keeping repetitive evidence from trial.

So we will have to wait and see if the judge lets the full rap videos be introduced, and there are multiple different ways that could happen or not happen. For now, let’s not ring those First Amendment alarm bells just yet.