Rap lyrics not evidence, court rules

“One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff,” wrote Justice Jayne LaVecchia, “or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story ‘The Tell-Tale Heart,’ simply because of their respective artistic endeavors on those subjects.”

Unlike rap, however, a short story would probably not make it into evidence. That’s because when it comes to using art to incriminate people, rap has been the focus of “the vast majority of cases analyzing the use of fictional expressions as evidence of character or motive and intent in criminal proceedings,” according to a brief from the American Civil Liberties Union of New Jersey. Allowing artistic self-expression to be used as general evidence of a defendant’s “state of mind,” the brief argues, would have a chilling effect on artists who fear their words may be used against them by the state. Prosecutors have tried to introduce rap lyrics as evidence in at least 18 cases; in 14 of those instances they have succeeded. 

 

“Virtually every case dealing with the admissibility of artistic expressions to show motive and intent of a criminal act dealt with rap lyrics,” said Ezra Rosenberg, an attorney with Dechert LLP and the author of the New Jersey ACLU’s brief. “Rap … many scholars have written, is a reaction to the mass incarceration of young African-American males in our inner cities. Some view it as rebellion, some as the embracing of the criminal stereotype, some simply as a cry of despair.  Whatever the reason, It strikes me as cruelly ironic that this particular form of artistic expression is being used to maintain the vicious cycle of mass incarceration.” 

 

While hip-hop is far less controversial than it once was, its simultaneous embrace and critique of capitalism, hypermasculinity, and violence has long made politicians, cultural critics, and pundits uncomfortable by reflecting those negative aspects of American culture. The form almost always employs a first-person narrative and a rhetorical persona, making it seem frighteningly literal to those unfamiliar with the genre— or to those seeking to use the form to demonize others. In a society where racialized fears and assumptions can cloud people’s judgment, separating a human being from their fictional persona can be a harder task than it should be. 

 

Skinner’s rap alias was “Real Threat.” Investigators searching his car found notebooks littered with lyrics like: