Rap as Evidence in Criminal Cases or an Assault on Artistic Expression?

May 13, 2014

By Elena Kravtsoff, Esq.

In 2005, a man named Lamont Peterson, an alleged drug dealer, was victim to a shooting that left him paralyzed. The weapon, a 9-millimeter gun, was never recovered, but several cell phones—including one that was later linked to one Vonte Skinner, an aspiring rapper—were found on the scene of the shooting. Reportedly, both Peterson and Skinner were part of a team of drug dealers whose members were equipped with 9-millimeter guns.  Nine days after the shooting, Skinner was arrested and his rap lyrics were found in the backseat of the car he was driving. While Skinner did not deny being at the scene of Peterson’s shooting, there may have been other individuals who reportedly had motive to harm Peterson within the vicinity of the crime scene. The shooter’s identity remains unconfirmed.

During at least one of two independent jury trials (the first jury was unable to reach a verdict), the prosecution extensively read Skinner’s explicit rap lyrics to the jurors in order to establish motive and intent, even though the lyrics were written from months to years prior to the shooting. The second jury found Skinner guilty of attempted murder, aggravated assault resulting in serious bodily injury, and aggravated assault with a deadly weapon. The judge ruled to incarcerate Skinner for thirty-five years.

Skinner appealed the indictment of the Superior Court of New Jersey, Burlington County, and in 2012, the Superior Court of New Jersey, Appellate Division found the prosecution’s use of his rap lyrics as evidence to be inappropriate. To guide its analysis, the appellate Court relied on a four-pronged test that establishes the conditions under which “bad-act evidence” can be admitted: (1) The evidence of the other crime must be admissible as relevant to a material issue; (2) [t]he evidence must be similar in kind and reasonably close in time to the offense charged; (3) [t]he evidence of the other crime must be clear and convincing; and (4) [t]he probative value of the evidence must not be outweighed by its apparent prejudice. In Skinner’s case, the “other crime[s]” were the violent acts described in his rap lyrics, that is, acts that he may or may not have committed.

On appeal, the Court focused on factors one, three, and four. In regards to the first, the Court determined that the admission of the lyrics to prove motive and intent was inappropriate because both of these were already established: Skinner, who was reportedly the “muscle” of the team, had motive to go after Peterson, who had been involved in a dispute with the team leader, Rothwell, while intent to kill was evidenced by the brutality of the shooting: Peterson was shot seven times in his head, neck and abdomen, so the shooter was clearly looking to end his life. In its analysis of the third factor, the Court concluded that “[w]hile [Skinner’s] lyrics describe similar crimes against unknown persons and some [of the lines in his song] mention Tech-9s, a gun of the same [caliber as the one] used to shoot Peterson, other than Peterson’s unsubstantiated assertion the defendant acted as Rothwell’s enforcer, there was no evidence that defendant did any of the acts he wrote about in his lyrics or had any knowledge of the subject matter of his work beyond what might be seen in a violent movie.” As to the fourth prong, the Court stated that “[e]ven if we were to conclude that the lyrics had some permissible probative value, given the volume of graphic, highly inflammatory and extremely prejudicial lyrics, we would conclude that the probative value was overwhelmingly outweighed by the risk of prejudice.”

While the lyrics that were read to the jury where quite lengthy and can be found in full in the appendix of the Appellate Division’s decision, this excerpt (which omits racial epithets) is representative of Skinner’s rap:

“But these [people] keep testin’ my weapons. I hold my head just to keep from stressin’; Got Beef, I can spit from a distance for instance; a [person] wouldn’t listen so I hit him with the Smithen; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him. The safe street squad found him, half his shell missin. I play my position, fall back and watch [people] keep my enemies real. Close to my twin bitches, hollow heads in the back of they throats mercury drippin’. They spit sickness, poison a [person] right when they clip him. They don’t call me Threat for nothin’, so pay attention.”

The Court’s analysis, albeit turning out in Skinner’s favor, does not actually address the prosecution and trial Court’s violation of Skinner’s freedom of expression. The Court’s decision implies that if all of the factors are in place, rap lyrics (and, by extension, poetry, painting, or other creative works) could be presented to a jury as evidence of the defendant’s motive and intent—or, more generally, as “bad act evidence”—obfuscating the fact that expressive conduct deserves First Amendment protection.

The appellate Court does briefly touch upon this matter by questioning whether a Court may correctly deduce the rapper’s—artist’s—intended meaning:

“Without a competent explanation by a person with some expertise in the area, the judge and jury are left to speculate about this lyric’s meaning. [Citation omitted]. Moreover, we do not know whether an expert in the area would explain that rap lyrics are a vehicle through which writers commonly convey horrific things in a graphic way to point out the tragedy of street violence and thereby diminish it. If that is the case, then such lyrics have no relevance but extreme prejudice.”

The brevity and superficiality of the Court’s discussion notably contrasts with how the ‘meaning’ of numerous paintings and sculptures is sought and intensely debated by museum-goers and academics. In fact, art’s appeal largely lies in the multitudes of interpretations that it coaxes out. Is the issue here that the Court, prosecution, and the jury do not view rap music as “art,” on par with Andy Warhol’s “Car Crash scenes” or Marcel Duchamp’s urinal? United States case law makes clear that art is expression that deserves First Amendment protection. Can a court in a criminal case rightfully decide what is and what isn’t artistic expression by failing to concede that, at the very least, a First Amendment analysis is warranted when rap lyrics are introduced as evidence?

In its Skinner v. State amicus brief to the Supreme Court of New Jersey, the New Jersey chapter of the American Civil Liberties Union (ACLU), a non-profit organization whose mission is to protect individual rights and liberties, picks up where the appellate court abruptly left off. It argues that the meaning of the lyrics are speculative, and that the lyrics—no matter how offensive they might be—may very well be a way to express the tragedy of street violence. The ACLU references a number of authors—including Tricia Rose and Andrea Dennis— who wrote about rap music and made the point that while rap music is often written in the first person, it is often an exaggerated, fantastic and unrealistic way for the author to express a cultural, political and social commentary on urban black culture. Which would mean, by extension, that rap music is not an admission of guilt but a chronicle, or a personal interpretation, of a rapper’s reality.

The ACLU adamantly opposes admitting “fictional, artistic expressions” into evidence because rap music is deserving of First Amendment protection, no matter how distasteful it might be to some. The ACLU further argues that given the political and social commentary that is often found in rap music in general and in Skinner’s lyrics in particular, his expressive conduct is a “matter of public concern,” which makes it even more deserving of First Amendment protection, again despite (and perhaps because) of the “offensive, outrageous, and inappropriate” language.

The ACLU argue that ascribing motive and intent to Skinner based on his lyrics is like ascribing Raskolnikov’s motive and intent to his creator Fyodor Dostoyevsky, or regarding the “confession” in “Bohemian Rhapsody” as that of Freddy Mercury (“Mama, I just killed a man…”), or indicting Johnny Cash for having “shot a man in Reno just to watch him die” according to “Folsom Prison Blues.” Thus the ACLU brings forth different styles of music to illustrate the absurdity of interpreting rap literally without consideration of its expressive, artistic nature. By extension, what if the police officers found a stack of paintings in the defendant’s car, and these painting were depicting graphically violent scenes? Would it have been appropriate for the prosecution to display the paintings in front of the jury during the trial in order to use them as evidence of the defendant’s motive and intent?

What if an artist was producing paintings that depicted women, apparently prostrated after an attack, while a serial killer was on the loose in the artist’s city? Walter Sickert was apparently not suspected—much less accused or brought to trial—of being “Jack the Ripper” despite his “Camden Town Murder” paintings while he was still alive. Despite wide criticisms, however, contemporary crime novelist Patricia Cornwell is convinced that Sickert was in fact the infamous killer, in large part because of his artwork’s motifs (see Summer Afternoon, or What shall we do for the Rent?, The Camden Town Murder, or What shall we do about the Rent?,  and L’Affaire de Camden Town). Reportedly, she even referred to Sickert’s Jack the Ripper’s Bedroom as a “painted confession,” and expended many resources to convince the world that her theory about Sickert is correct.

Not surprisingly, many came to Sickert’s defense. London art dealer Andrew Patrick reportedly stated—after bemoaning Cronwell’s apparent destruction of a Sickert as part of her quest to prove that the artist was Jack the Ripper—that “[e]veryone knows this stuff about Sickert is nonsense. He loved these dramatic titles, and to play with the idea of menace” (emphasis added).

Jonathan Jones, an art blogger, writes:

Cornwell’s accusation burns out Sickert’s real achievements and irradiates him as an artist. Here is a bold painter who was not afraid to put sex and sleaze into his art at a time when most British artists were timid and repressed. He dares the radical urban danger that artists in Paris were so alive to. Why does that make him a likely serial killer?

Adjust for place, time and other specifics, replace “painter” with “rapper,” “sex and sleaze” with “life on the streets,” and this might as well be a defense of rap artists whose lyrics are being used as evidence against them in criminal trials.

The Appellate Division in the Skinner case, as well as other courts in similar cases (the ACLU allegedly identified eighteen other decisions that debated the admissibility of rap lyrics into evidence without considering First Amendment implications) did not view Skinner’s lyrics as artistic expression, and therefore apparently acquiesced to the notion that an individual’s art is a reliable way to determine in a legal setting the interworking of his or her mind. Ethics and effectiveness of this approach leave much to be desired. After all, wasn’t Adolf Hitler’s artwork replete with idyllic and peaceful landscapes?

Sources:

• State v. Skinner, No. A-2201-08T2 (Super. Ct. N.J., Aug. 31, 2012), http://www.judiciary.state.nj.us/webcast/opinions/ob_a_57_58_12.pdf.
• Brief for American Civil Liberties Union of New Jersey as Amicus Curiae Supporting Defendant, State v. Skinner, No. A-2201-08T2 (Sup.Ct. N.J), http://www.aclu-nj.org/download_file/view_inline/1175/947/.
• Street v. New York, 394 U.S. 576, 594 (1969) (stating that the Constitution protects even “distasteful” forms of expression).
• Snyder v. Phelps, 562 U.S. __ (2011) (indicating that even “outrageous” conduct is protected by the First Amendment).
• Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (protecting outrageous public debate under the First Amendment).
• David Harding, Jack the Ripper’s identity ‘cracked’: famed crime writer Patricia Cornwell, New York Daily News, Nov. 30, 2013, available at http://www.nydailynews.com/news/crime/jack-ripper-identity-cracked-patricia-cornwell-article-1.1533524#ixzz30ElRkwbS.
• Fiachra Gibbons, Does this painting by Walter Sickert reveal the identity of Jack the Ripper?, The Guardian, Dec. 8, 2001, available at http://www.theguardian.com/artanddesign/2001/dec/08/art.artsfeatures. 
• Jonathan Jones, Walter Sickert was Jack the Ripper? Ridiculous! He was actually Dracula, The Guardian, Dec. 3, 2013, available at http://www.theguardian.com/artanddesign/jonathanjonesblog/2013/dec/03/walter-sickert-jack-ripper-sex-evil. 

About the Author: Elena Kravtsoff is an attorney based in Washington, DC. She may be reached at elena.kravtsoff@gmail.com.