The 'Rhyme or Reason

Criminal Law Practitioner Volume 2 Issue 1 Article 10 2014 The 'Rhyme or Reason' Behind Prosecutorial Use of Rape Lyrics as Evidence in Criminal Trials Robery Nothdurft Jr American University Washington College of Law Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, and the Evidence Commons Recommended Citation Nothdurft, Robery Jr (2014) "The 'Rhyme or Reason' Behind Prosecutorial Use of Rape Lyrics as Evidence in Criminal Trials," Criminal Law Practitioner: Vol. 2 : Iss. 1 , Article 10. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss1/10 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Nothdurft: The 'Rhyme or Reason' Behind Prosecutorial Use of Rape Lyrics as THE 'RHYME OR REASON' BEHIND PROSECUTORIAL USE OF RAP LYRICS AS EVIDENCE IN CRIMINAL TRIALS by Robert Aothdurft, JA Published by Digital Commons @ American University Washington College of Law, 2014 1 Criminal Law Practitioner Criminal Law Practitioner, Vol. 2 [2014], Iss. 1, Art. 10 I. Introduction Does a rapper know that when they walk up to the mike and drop their latest verse or put pen to paper to scratch out their newest lyrics, they can essentially incriminate themselves? While the rap genre has continued to gain popularity across audiences nationwide, it has also attracted fairly new and certainly unfavorable attention from prosecutors. In light of trending case law that permits rap lyrics to be used as character evidence against criminal defendants, rappers must be cautious to separate their rap persona from real world events. Courts nationwide are expanding evidentiary bounds at an increasing rate to include an individual's artistic expression through rap music 14 will analyze the evidentiary foundations for the admissibility of rap lyrics and evaluate the soundness of their admission at trial. Because a number of states have adopted the same or a substantially similar formulation of the evidentiary rules contained in the Federal Rules of Evidence, this article will focus on the language of those federal rules. While there is an apparent 'rhyme or reason' for the prosecutorial use of rap lyrics at trial, defense attorneys can employ evidentiary strategies contained in this article to combat these prosecutorial tactics. in criminal proceedings: The synthesis between pop culture and criminal justice is problematic. Many individuals aspire to create lyrical art, either from their own personal experiences or fictional ideas. Few, if any, anticipate their lyrical expression becoming evidence against them. A number of courts across the nation, however, are assessing the compatibility of rap lyrics in evidence law and finding that admissibility is proper. Approximately eighty percent of those courts held that rap lyrics are admissible. II. Rap Lyrics: Grounds for Admissibility Prosecutorial use of rap lyrics at trial is generally challenged on three different grounds. First, as with other pieces of unfavorable evidence, the defense may attempt to exclude rap lyrics because they are irrelevant.' Second, the defense may attempt to attack the probative value of the rap lyrics and argue that such value is substantially outweighed by the prejudicial effect it may have on the jury.4 Finally, the defense may argue that rap lyrics conThis article will focus on the method stitute inadmissible character evidence or improsecutors employ to admit rap lyrics into proper evidence of prior bad acts, as governed. evidence and how prosecutors use these lyr- by federal rule 404. Despite the number of ics once admitted. Additionally, this article hurdles prosecutors face in admitting rap lyrics, courts have provided numerous accommo1 Lauren Williams, Your Rap Lyrics Can Be Held Against You in a Court ofLaw, MOTHER JONES (Mar 10, 2014, dations under these three federal rules. 3:00 AM), http://www.motherjones.com/politics/2014/03/raplyrics-trial. 2 Erik Nielson & Charis E. Kubrin, Rap Lyrics on Trial, NEW YORK TIMES (Jan. 13, 2014), http://www.nytimes. com/2014/01/14/opinion/rap-lyrics-on-trial.html?_r-0. https://digitalcommons.wcl.american.edu/clp/vol2/iss1/10 3 4 5 FED R. EVID. 401. FED R. EVID. 403. FED R. EVID. 404. Fall 2014 Washington College of Law n3 2 I Criminal Law Practitioner Nothdurft: The 'Rhyme or Reason' Behind Prosecutorial Use of Rape Lyrics as A. Federal Rule 401: Are Rap Lyrics Relevant? The test for relevance derives from the common law and is not codified in the federal rules.6 Under federal rule 401, evidence must have a tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence.7 Courts, however, have crafted their own way to interpret the rule., Because the threshold to meet the relevance requirement is so low, the question usually becomes what value might a juror attach to rap lyrics as evidence? Moreover, would admitting such lyrics make jurors more likely to resolve disputed issues of fact than without the lyrics? The Court in UnitedStates . Stuckey tackled these questionso seized in the defendant's belongings.- The lyrics included, "I expose those who knows; Fill they bodys wit ho[1]es; Rap em up in blankit; Dump they bodys on the rode.",- The lyrics also repeatedly referred to killing and retaliating against "snitches."1 On appeal, the Sixth Circuit held that the trial court did not abuse its discretion in permitting the Government to use the defendant's rap lyrics at trial.'i The court started its review at relevance, holding that the defendant's lyrics depicted events so similar to the crimes for which he was charged that they strengthened the probability of his guilt. "Stuckey's lyrics concerned killing government witnesses and specifically referred to shooting snitches, wrapping them in blankets, and dumping their bodies in the street--precisely what the Government accused Stuckey of doing to Darbins in this case.", - The relevance determination in Stuckey, that an author bases his or In Stuckey, the defendant, Thelmon however, assumes her lyrics on personal experiences. If a court Stuckey, was confronted with lyrics he purportedly wrote in connection to the crime for finds that a defendant's writings are fictional which he was ultimately convicted.- The de- and intended purely for the artistic enjoyment fendant was charged with murdering Ricardo of others, it is likely to exclude such writings "Slick" Darbins, a former Detroit Police Officer, as irrelevant.: Courts, though, are not always to prevent Darbins from cooperating with fed- amenable to arguments purporting pure areral authorities. At trial, the Government suc- tistic intent. 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