The evidence that Vonte Skinner murdered Lamont Peterson was shaky, enough so that the first trial ended in a hung jury. But the second trial included the introduction of evidence that defied everything a lawyer thought he knew about evidence.
[T]he most significant issues concern the admission of defendant’s rap lyrics that were found in the car he was driving at the time of his arrest. Prior to defendant’s first trial the judge ruled, over defendant’s objections, that the State could introduce the selections with specified redactions. Defendant wrote the lyrics over a period of several years. The State pointed to one lyric written after September 2005, but conceded that others were written as many as three to four years prior to this crime. The jury was not given any information about when the lyrics were written.
At this trial, the State referenced the rap lyrics in its opening and introduced them in its case in chief to establish defendant’s motive and intent, not in response to an attack on the State’s evidence.
That the trial judge allowed the prosecution to use gangsta rap lyrics as evidence of “motive and intent,” which to any reasonably thoughtful person is code for propensity and negative character evidence, is inexplicable. Highly prejudicial and without any real probative value, even the appellate court in New Jersey couldn’t stomach its use. Skinner’s conviction was reversed.
To the extent the lyrics depicting defendant as an enforcer and hit-man had any relevance beyond demonstrating his criminal propensity and depravity, . . .
In a New York Times op-ed, Erik Nielson and Charis Kubrin write about how rap lyrics by amateur rappers are becoming new staples of evidence of crime:
Mr. Skinner’s case is far from unique. Rap lyrics and videos are turning up as evidence in courtrooms across the country with alarming regularity. Last year, the American Civil Liberties Union of New Jersey found that in 18 cases in which various courts considered the admissibility of rap as evidence, the lyrics were allowed nearly 80 percent of the time.
They contend that this reflects a gross misapprehension of what these lyrics reflect, but that their violent nature coupled with the attribution of autobiographical significance makes for some damn fine evidence to smear a defendant.
As expert witnesses who have testified in such cases, we have observed firsthand how prosecutors misrepresent rap music to judges and juries, who rarely understand the genre conventions of gangsta rap or the industry forces that drive aspiring rappers to adopt this style. One common tactic is to present a defendant’s raps as autobiography. Even when defendants use a stage name to signal their creation of a fictional first-person narrator, rap about exploits that are exaggerated to the point of absurdity, and make use of figurative language, prosecutors will insist that the lyrics are effectively rhymed confessions. No other form of fictional expression is exploited this way in the courts.
While there’s little doubt that judges and juries don’t “get” the genre, there is much judges and juries don’t “get” about what happens before them during a trial. They don’t “get” that cops lie, even when they have no particular reason to harbor animosity toward the defendant on trial. They don’t “get” that people can be manipulated into falsely confessing. They don’t “get” that eyewitnesses who are absolutely certain the defendant is the one “who did it” can be dead wrong. This just gets added to the bottom of the “don’t get” list.
But for the uninitiated, it is easy to conflate these artists with their art. It becomes easier still when that art reinforces stereotypes about young men of color — who are almost exclusively the defendants in these cases — as violent, hypersexual and dangerous. If that’s what jurors see, what are the chances for a fair trial?
The use of rap lyrics as evidence of propensity and depravity can be seen as a rap lyrics problem or an evidentiary problem. For all the rhetoric about trials being a “search for the truth” to give jurors that warm and fuzzy feeling that they haven’t been pawns in a game of the government gotcha, the prosecution plays the game to win a conviction. This doesn’t mean the prosecutor doesn’t think the defendant guilty and thus deserving of conviction, but that they use whatever is at hand to get what they believe to be the right result.
This is why a judge gets to wear a robe and sit on the cool bench, as gatekeeper of what evidence is allowed to come before the jury. In Skinner’s case, there were thirteen pages of rap lyrics written over the course of years before the Peterson killing. Skinner wanted to be a gangsta rapper. Skinner wrote lyrics that were rough and edgy, because that’s what gangsta rap is about. And they were the sorts of words that the prosecution recognized would inflame a New Jersey jury.
What kind of judge is so utterly clueless of 404(b), so susceptible to a meaningless rhetorical catchall as “motive and intent,” so tone deaf as to think song lyrics are a substitute for a rhyming confession? No judge. Not even a Jersey judge.
Stuart Fischoff, a psychologist at California State University, Los Angeles, conducted a study in the late 1990s to measure the impact of gangsta rap lyrics on juries. Participants were given basic biographical information about a hypothetical 18-year-old black male, but only some were shown a set of his violent, sexually explicit rap lyrics. Those who read the lyrics were significantly more likely to believe the man was capable of committing a murder than those who did not.
The psychological value of propensity evidence is well known. Smear the person so that the jury despises him and believes him sufficiently evil to commit the crime, and the weakness of real evidence no longer matters. Bad guy. He’s going down.
There is a bizarre inverse correlation between the strength of probative evidence and the willingness of judges to allow the prosecution to introduce crap propensity evidence instead. The justification, as explained after a few cocktails later in the evening with the judge, is that without it, the prosecution would never be able to convict. In other words, the worse the real evidence, the more inclined the judge is to allow in garbage like this.
The writers call for the end of admitting rap lyrics at trial, and hopefully the New Jersey Supreme Court will shut the door on this absurd and irrelevant smear. But the reason isn’t that rap lyrics are different, but that non-probative highly prejudicial evidence never has a place at trial, no matter how little real evidence of guilt exists.