ILNews

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

James J. Bell , K. Michael Gaerte
August 27, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

ADVERTISEMENT