Where to Draw the Line: Using Rap Lyrics in Criminal Trials
In 2008, a New Jersey jury found Vonte Skinner guilty of attempted murder before a judge sentenced him to thirty years in prison. As part of its case, New Jersey relied on Mr. Skinner’s amateur rap lyrics when the prosecutor read thirteen pages of violent lyrics to the jury. The lyrics all were written before the crime, and none of the lyrics referenced any specific details of the crime, but the judge allowed the jury to consider them in determining Mr. Skinner’s guilt.
Flash forward six years to 2014. Despite an appeals court overturning Mr. Skinner’s conviction in 2012 and remanding his case for a new trial, the issue is still not resolved. New Jersey chose to appeal Mr. Skinner’s decision to the New Jersey Supreme Court, which took the case and finally heard arguments last month. This post explains the state of the law on rap lyrics as evidence, examines some of the issues surrounding the topic, and proposes a test for courts to use when deciding whether lyrics should be heard as evidence.
I. State of the Law
While Vonte Skinner waits to hear his fate, prosecutors, defense attorneys, and rappers also pay close attention to the case. Such reliance on rap lyrics is a developing trend, as prosecutors across thecountry have attempted to admit rap lyrics as evidence to help gain criminal convictions. More often than not, the tactic works. Recently, for example, the ACLU examined eighteen cases involving the admissibility of rap lyrics at random and found that the lyrics were allowed nearly 80 percent of the time.
But, admissibility is only the first step. As studies have shown, admitted lyrics seriously affect how a jury views a defendant. For example, in the late 1990’s, Stuart Fisher,a psychologist and professor at UCLA, provided random study participants with generalbiographic information about a hypothetical black 18-year-old male. Fisher then showed violent rap lyrics (allegedly written by the same male) to some but not all of the participants. The people who read the lyrics were significantly more likely to believe the man was capable of committing murder.
Fisher’s study proves the same point the appellate court made in Mr. Skinner’s case, namely that such lyrics are often used to prove a defendant’s propensity towards violence and, therefore, are more prejudicial than probative. But, all courts have not adopted this view. Last summer, for example, Nevada’s Supreme Court upheld the admissibility of rap lyrics in a first-degree murder case, holding that the lyrics were more probative than prejudicial. Finding that the lyrics were factual rather than fictional because they included specific details of the alleged crime, the court affirmed their admissibility and upheld the defendant’s conviction.
II. The Potential Problems with Admission
The problem with admitting rap lyrics in criminal cases is threefold.
First, drawing the line between fact and fiction is difficult. As Andrea Dennis explains, gangsta rap consists of “constructed images, metaphor, braggadocio, or exaggerated storylines.” Thus, much like any narrative form, raps contain elements of autobiography and imagination. Distinguishing between the two is particularly hard in rap, a form of expression that requires authenticity to build the rapper’s street credibility.
Second, such a tactic, if courts continue to allow it, may raise First Amendment issues and chill free speech. In its Amicus brief to the New Jersey Supreme Court in Mr. Skinner’s case, the ACLU pointed out that most decisions dealing with rap lyrics ignore the First Amendment and instead only discuss the issue in the context of state or federal evidentiary rules. A court’s failure to conduct a Constitutional analysis, in the view of the ACLU, would be erroneous.
Third, because rappers are predominantly young black males, the effect of admitting such lyrics is racially disproportionate. Thus, a discrete and insular class of minority citizens, a class that typically receives heightened scrutiny in Constitutional challenges, most strongly feels the impact of such decisions.
III. A Proposed Test for Admissibility
Courts have considered, and scholars and organizations have called for, many tests when considering the admissibility of rap lyrics. Most courts have considered the issue under their state analogues to Federal Rule of Evidence 403 and 404. Rule 404 allows for the admission of a defendant’s previous acts when the acts help prove the defendant had knowledge, motive, or intent to commit the crime. Rule 403 bars admission of evidence when the evidence in question is more prejudicial than probative. Such an analysis, as mentioned earlier, usually focuses on whether the lyrics tell a true story or a fabricated narrative.
Although determining fact from fiction makes sense, courts should apply a strict test when deciding that question. In light of the three issues mentioned earlier, the prosecutor should bear the burden of admissibility. In other words, in each specific case it seeks to admit lyrics, the prosecution should prove that the facts of the case warrant admission. In order to evaluate whether the prosecution meets its burden, the court should apply what I will refer to as the Time, Details, and Identification test (“TDI test”).
First, the court should consider the temporal proximity between the crime and the lyrics. It would help if the prosecution could show the rap was written after the crime, thus indicating that the crime may have served as inspiration for the rap. A post-crime rap also may indicate that the alleged actions actually happened because they were codified, possibly in detail, after the crime occurred.
Second, the court should consider whether the lyrics contain specific details that sufficiently match the details of the crime. Specific details of the crime could be a description of: the location of the crime, the clothing worn by defendants or victims, the weapons used, other conspirators or witnesses, the fruits of the crime (in the case of robbery), and the injuries to the victims (in the case of assault).
Finally, the court should consider whether the lyrics identify either the defendant or victim. This, of course, is a highly factual inquiry to be proven by the prosecutor. An example of where this analysis may be particularly important is in cases where the rap is told from the vantage point of the rapper’s fictitious alter ego rather than the rapper himself.
After considering these three factors, the court then should decide, based on the totality of the circumstances, whether the prosecution has met its burden to admit the lyrics. To be clear, the TDI test would provide guidance, specificity, and uniformity in the law but would not alter dramatically how courts have viewed this issue. For example, Mr. Skinner’s New Jersey appellate case, which excluded the lyrics, and the Nevada Supreme Court case, which admitted the lyrics, would be decided the same way (both correctly) under the TDI test.
 Erik Nielson and Charles E. Kubrin, Rap Lyrics on Trial, The New York Times (Jan. 13, 2014).
 State v. Skinner, 2012 WL 3762431 at *1 (N.J. Super. Ct. App. Div. 2012) (“The lyrics graphically conveyed the impression that defendant, the author, had a propensity for violence and reprehensible disregard for human life and had no permissible relevance—exactly what N.J.R.E. 404(b) is ‘designed to interdict.’ See State v. Kemp, 195 N.J. 136, 150 (2008). This was error, and it was not harmless.”)
 Holmes v. State, 306 P.3d 415, 419 (Nev. 2013) (“It is one thing to exclude defendant-authored fictional accounts, be they rap lyrics or some other form of artistic expression, when offered to show a propensity for violence, as in State v. Hanson, 46 Wash.App. 656, 731 P.2d 1140 (1987), on which Holmes relies. It is quite another when the defendant-authored writing incorporates details of the crime charged.”).
 Andrea L. Dennis, Poetic (In) Justice? Rap Music as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 25 (2007).