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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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