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Inside the Criminal Case: Can your lyrics be used against you in court?

James J. Bell , K. Michael Gaerte
August 27, 2014
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Inside CC Bell GaerteI shot a man in Reno
Just to watch him die
–“Folsom Prison Blues,” Johnny Cash



It is common knowledge that what you say can and will be used against you. But what about what you sing or intend to sing? What if what you said was put to a (probably bad) beat in the background? Can lyrics you’ve written, performed or even expressed admiration for, be used against you in your criminal trial? Put in context, could the lyrics from “Folsom Prison Blues” have been used against Johnny Cash if he was ever really charged with shooting someone? In that hypothetical case, could a prosecutor have slapped an exhibit sticker on those lyrics and used those lyrics to make the “Man in Black” hang his head and cry?

Courts have addressed this issue. As a starting point, the decisions that have addressed this issue have done so based solely on evidentiary grounds. Although freedom of speech advocates have pushed the argument that the First Amendment mandates an additional review of a defendant’s artistic expressions, appellate courts addressing this issue have declined the opportunity to do so. See Brief of Amicus Curiae American Civil Liberties Union of New Jersey, New Jersey v. Skinner, https://www.aclu-nj.org/download_file/view_inline/1175/947/.

While the Rules of Evidence have largely remained the same over the past several years, the availability of information about a defendant’s musical propensities has not. With the proliferation of social media and the increased publication of an individual’s personal preferences, this is an area that will surely see increased attention in courtrooms across the county in the future. While some recent caselaw has provided some clarity on the evidentiary issues, it still seems clear that a firm consensus has not developed in Indiana or nationally.

Earlier this month, the Supreme Court of New Jersey reversed a defendant’s attempted murder conviction and remanded the case for retrial because the trial court had admitted violent rap lyrics the defendant had written prior to the shooting. New Jersey v. Skinner, 2014 N.J. Lexis 803 (N.J. 2014). Skinner was allegedly involved in shooting a rival drug dealer over a money dispute. Id. at 2. When he was arrested, police discovered three notebooks filled with rap lyrics written by Skinner. Id.

Skinner, who may or may not be the next William Shakespeare or Bob Dylan of his era, had penned lyrics such as:

Go ahead and play hard. I’ll have you in front of heaven prayin’ to God, body parts displaying the scars, puncture wounds and bones blown apart, showin’ your heart full of black marks, thinkin’ you already been through hell, well, here’s the best part. You tried to lay me down with you and your dogs until the guns barked. Your last sight you saw was the gun spark, nothin’ but pure dark, like Bacardi.

Without going into greater detail, the notebooks contained other material which “included graphic depictions of violence, bloodshed, death, maiming and dismemberment.” Id. at 18.

The state of New Jersey sought to admit the lyrics, not as direct evidence of the crime with which Skinner was charged but rather to prove Skinner’s motive and intent pursuant to Evidentiary Rule 404(b). Id. at 8. Over Skinner’s timely objection, the trial court determined that the lyrics were admissible. Id. at 2. However, on appeal, the New Jersey Supreme Court found that the admission of the lyrics was highly prejudicial and bore little evidentiary value and reversed his conviction. Id. at 5. The court found that Rule 404(b)’s “safeguard against propensity evidence” was designed specifically to prevent such material from unduly prejudicing a jury against a defendant. Id. at 39. Focusing in on the fact that Skinner’s lyrics bore little similarity to the actual shooting at issue, the court determined that admitting the lyrics at Skinner’s trial necessitated a new trial. Id. at 52.

However, when such lyrics reflect details of the crime itself, the analysis can change substantially. In Bryant v. State, the Indiana Court of Appeals addressed this very issue. 802 N.E.2d 486 (Ind. Ct. App. 2004). Arthur Bryant was convicted of, among other things, the murder of his stepmother. Id. at 492. Prior to the murder, Bryant had either authored or plagiarized rap lyrics that contained a line about pulling a body “out (sic) the trunk of my car.” Id. at 498. Police had located Bryant’s stepmother’s body from the trunk of the car Bryant had been driving for several days. Id. Like Skinner, the Bryant court addressed the issue of whether admitting the lyrics violated Evidence Rule 404(b). Ultimately, the appellate court concluded that, because Bryant’s intent to kill was at issue in his trial, he was not unfairly prejudiced when the lyrics were admitted. Id. at 499.

So whether lyrics are admissible in court may depend upon how closely the lyrics mirror the crime alleged. Put another way, if Johnny Cash had ever faced a charge of shooting a man, the admissibility of his lyrics would depend largely on where he shot the man and for what reason. If he had ever shot a man in Reno for the purpose of watching him die, “Folsom Prison Blues” would not only be an American country classic, but also likely an admissible exhibit at trial.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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