Art or confession? NJ Supreme Court to rule on rap lyrics as evidence

Decision could affect other cases where songs were allowed, despite often vague connections to criminal acts in question

The ACLU questions whether rap lyrics used as evidence is because prosecutors "have a tendency to prejudice a jury."
Sergio Dionisio/Getty Images

When Vonte Skinner wrote, “Yo, look in my eyes. You can see death comin’ quick. Look in my palms. You can see what I’m gunnin’ with,” he probably didn't think the rap lyrics would one day be used against him as evidence in a court of law. But that is exactly what happened to the aspiring rapper after a shooting in 2005 left Lamont Peterson, who sold drugs with Skinner, paralyzed from the waist down.

Skinner was charged with and convicted of attempted murder, the guilty verdict sealed in part by the prosecution’s reading of 13 pages of rap lyrics filled with violent themes. He went by the name Threat, which he also has tattooed on his arm, and made music with his younger brother, Amar Dean, a rap producer.

“He actually got me started (with music) when I was in, like, fifth or sixth grade,” Dean said on the witness stand. He later described the selection of Skinner’s lyrics the prosecution read in court as “horror lyrics.”

His lyrics are hyperbolic and often funny. About his bravery, he wrote, “I stand up and dump, never duck and squeeze/ and I leave you pricks Daffy with the duck disease.” He refers to “Star Wars” in another line, writing, “You think you had Jedi, but haven't felt the Force yet. My slugs make you thinner like smut broads in corsets.”

Skinner’s conviction was later overturned on appeal, and the New Jersey Supreme Court is set to hear the case the first week in March.

Yet his case is only one example of an alarming trend of prosecutors’ using rap lyrics to paint defendants as criminals on the basis of their art, according to critics. An amicus brief filed by the New Jersey chapter of the American Civil Liberties Union on behalf of Skinner found 17 other criminal cases in which prosecutors attempted to use rap lyrics as evidence, despite their sometimes having little, if anything, to do with the crimes.

“All of (these cases) dealt with rap lyrics, mostly gangsta rap lyrics, and you don’t see any other form of music being used” like that, said Ezra Rosenberg, author of the ACLU brief. “I don’t know if the prosecutors are using (rap lyrics) because they believe in good faith they should or whether they are being used because they have a tendency to prejudice a jury.” 

Character evidence?

Courts generally don’t allow evidence that is intended to damage a defendant’s character but isn’t related directly to the crime — though rap lyrics seem to be an exception.

In Skinner’s case, the appeals court determined that although he rhymed about a Tec-9, the same type of gun used to shoot Peterson, “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,” so the lyrics were inadmissible as evidence.   

In some of the cases cited by the ACLU, the justifications that courts give for admitting lyrics as evidence border on the absurd.

For instance, in a case against Vincent Foster an appeals court determined that his rhyme “Key for key, pound for pound/ I’m the biggest dope dealer, and I serve all over town,” was admissible because it showed he was “familiar with drug code words and, to a certain extent, narcotics trafficking.”  

Other times, the lyrics hew closer to the crimes committed — for example, when Dennis Greene, on trial for murdering his wife, rapped that his wife “made me mad, and I had to take her life. My name is Dennis Greene, and I ain’t got no f---ing wife.” 

But in several of the cases, prosecutors used lyrics to demonstrate a violent state of mind or gang membership. In U.S. v. Wilson, the 2nd U.S. Circuit Court of Appeals allowed “rap lyrics (that) reflect group pride in (a crew’s) violent character.”

Another recent case, not included in the brief because it is under appeal, is that of Alex Medina, who was 14 when prosecutors say he stabbed another teenager to death at a party. Medina was found guilty and sentenced to 25 years to life after a trial in which prosecutors read lyrics of his like “Put me down for murder in the first degree” and others to demonstrate his membership in a local gang.

None of the cases that the ACLU mentions have directly addressed the First Amendment implications of using rap lyrics as evidence.

Literal interpretations

Erik Nielson has served as an expert witness for the defense in several rap-lyric cases, including Medina’s, and recently co-authored a New York Times op-ed on the misuse of rap by prosecutors. He said judges and juries often don’t understand the conventions and conceits of rap.

“The most common misconception is that rap music is an accurate depiction of reality, that it is not an art form,” Nielson told Al Jazeera. “That it is recounting events as they actually transpire.”

In some extreme rap-lyric cases, the writing itself is the crime. When police searched Olutosin Oduwole’s impounded car, they found a crumpled note with lyrics and the lines “If this account doesn't reach $50,000 in the next seven days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!”

Jeffrey Urdangen, who represented Oduwole, argued the note was a private scribbling, simply the beginning stage of a rap lyric or possibly a spoken intro or outro to a song.

“The Oduwole case was a completely misguided prosecution by narrow-minded officials who refused to accept the fact that the item that they were using to prosecute my client was art,” Urdangen said.

In Massachusetts, police arrested Cam D’Ambrosio, a white teenager who posted a verse on Facebook that included the line “F--- a boston bombinb (sic) wait til u see the s--- I do, I’ma be famous for rapping, and beat every murder charge that comes across me.” D’Ambrosio is the only white defendant in rap-lyric cases that Nielson could recall. The grand jury refused to return an indictment.

When Johnny Cash famously sang, “I shot a man in Reno just to watch him die,” or Green Day fantasized about donning a suicide vest in their song “Having a Blast,” no one took it literally. As for why rap’s different, Nielson offers an explanation that puts race at the center of the issue.

“I think many Americans have a tough time conceiving of the young men of color who are the primary producers of rap music — and almost exclusively the defendants in these cases — as artists,” he said.

A 1996 study by sociologist Carrie Fried showed that respondents reacted far more negatively to lyrics about killing a cop when told that a black rapper, as opposed to a white group or country singer, wrote the lyrics.

Rosenberg hopes that the New Jersey Supreme Court will offer clear guidelines to lower courts that tighten the rules for admitting rap as evidence, on First Amendment grounds.

“No matter how offensive (the lyrics) sound, how distasteful they may appear to some, that’s precisely why they have to be protected,” he said. “And not only do they have to be protected, you have to build a kind of a breathing space around them to make sure there’s not a chilling effect.”

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