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,

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 or The opinions expressed are those of the authors.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.