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

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.