But this warning apparently needs to be updated to advise people that not only will anything you say, but also any rap lyrics you write can be used against you, even if they were penned years before the crime at issue.
Those are the very facts of Vonte Skinner's case currently pending on appeal before the New Jersey Supreme Court. Skinner was charged with the 2005 attempted murder of Lamont Peterson who had been shot several times at close range.
Earlier this week oral arguments were heard regarding whether Skinner's rap lyrics were improperly admitted by the trial judge. Here's just a sample of 13 pages of Skinner's lyrics read by the prosecution to the jury:
I love bringin' heat and to beef melt ya' Jeep. Two to your helmet and four slugs drillin' your cheek to blow your face off and leave your brain caved in the street.
Yo, look in my eyes. You can see death comin' quick. Look in my palms, you can see what I'm gunnin' with. I play no games when it comes to this war shit. If death was a jacket, you would see how the floor fits.
You get the idea. Unsurprisingly, Skinner was convicted despite the weapon not being found and conflicting testimony identifying him as the shooter.
I saw first hand when I was a trial lawyer that a jury -and even a judge- could be swayed by any one piece of evidence. Cases could turn on what might otherwise be perceived as lesser piece of evidence. Consequently, a defendant's rap lyrics could be the very thing that sways a jury to reach a guilty verdict because the words unfairly portray the person as violent.
And in Skinner's case, the lyrics at issue were written well before the crime- with some as old as four years before the shooting. It's also undisputed that Skinner's lyrics neither mentions the victim nor recites facts similar to his case.
I'm not arguing that all lyrics, or other creative expressions by a defendant, should never be admissible. But they should be clearly tied to the facts of the case at hand. For example, it would've been proper to admit the lyrics if Skinner had written about having a beef with the victim.
As former New York homicide prosecutor Paul Callan explained via email: "Had Johnnie Cash been charged with actually shooting 'a man in Reno, just to watch him die' his song lyrics would be relevant and admissible at trial. Otherwise, unless the lyrics help to prove something important like motive or a unique method of killing, they should be inadmissible."
Criminal defense lawyer Seema Iyer, also a former prosecutor, echoed Callan's sentiments. Iyer felt strongly that the "probative value" of Skinner's lyrics was clearly outweighed by the unfair prejudice it caused him.
Here's the even more alarming news: The Skinner case is far from being unique. As the ACLU noted in a brief it filed with the New Jersey Supreme Court, they found 17 other cases where court's considered the admissibility of a defendant's rap lyrics. Astoundingly, judges ruled in favor of admitting the lyrics in 80 percent of those criminal trials. (A few were overturned on appeal.)
If criminal courts continue down this path, will comedians have to worry that their angry, ranting jokes may one day be used against them in a trial? Or what if country singer Carrie Underwood were on trial in the future for a violent act, would the court admit the lyrics of her 2005 song, " Before He Cheats," in which she sings: "Took a Louisville slugger to both headlights, slashed a hole in all four tires. Maybe next time he'll think before he cheats."
Michael Skolnik, editor in chief of the hip-hop focused publication Global Grind.com that spotlights hip hop culture, explained to me that rap lyrics should, "never be allowed as evidence in a court of law since the lyrics range from being metaphorical, to bragging, to literal to a form of escape."
Brown University Professor Tricia Rose, who the ACLU quoted in their brief, noted that rap is a form of expression with its own "artistic and poetic conventions" often featuring "metaphors and boasts," "overblown accounts" and "outrageous lies," with the goal being to weave a catchy and compelling story.
Let's be brutally honest: there's a racial component to rap lyrics being introduced into evidence. We can't ignore the reality that rap lyrics will be used almost exclusively in criminal trials with black defendants.
As Professor Rose instructively explained, "rap music is a black cultural expression that prioritizes Black voices from the margins of urban America." Brown noted that since its origins, rap music has, "articulated the pleasures and problems of Black urban life in contemporary America."
Michael Skolnik, editor in chief of the hip-hop focused publication Global Grind.com, also believes there's a racial aspect to these cases, pointing out that it's, "another example of the demonization of young black men for listening to rap music- or as in this case, writing rap music."
The New Jersey Supreme Court should rule that Skinner's lyrics are not admissible. The Court should also articulate clear guidelines for New Jersey trial judges that a defendant's' creative expressions-be they rap lyrics or a comic's jokes- should only be admissible if it's directly connected to the facts of the case. Anything less will result in innocent people being convicted of crimes based on their art, not on the law.
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