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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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