Thursday, December 21, 2006

The Admissibility of Violent Rap Lyrics

Yesterday’s federal court murder conviction of Ronnell Wilson rested in part on the prosecution’s introduction into evidence of rap lyrics that Wilson had composed. A wire story explains that prosecutors nationwide have increasingly relied on rap lyrics in pursuing cases against accused criminals. The story does not, however, draw what should be some important distinctions.

In some of the cases, rap compositions by the defendant have been introduced essentially as confessions. This strikes me as appropriate. To be sure, there is a risk that someone who boasts in his song that he committed a particular rape or murder is puffing, but that risk is no different from the risk one encounters in a prosaic confession.

The more interesting cases involve prosecutors introducing lyrics composed by the defendant or to which the defendant listened prior to the crime he allegedly committed. Here I see two issues, one not serious, the other more serious. The not-serious issue is freedom of expression. We might worry that the evidentiary use of rap lyrics will chill their creation or enjoyment. I realize that there are many people who would deem that a positive result, but I’m going to assume that the First Amendment would deem it a negative. Nonetheless, it strikes me that the First Amendment simply does not protect against this sort of use of artistic taste or creativity. John Doe may have a First Amendment right to read American Psycho, but if he’s charged with committing a murder that is identical to one depicted in the book, the fact that he did in fact read it tends to show that he could have been the killer. This is even more clearly true where the author or composer of an obscure work stands accused of committing a crime much like one appearing in the work.

The more serious worry, it strikes me, is one of ordinary evidence law: Prosecutors may be introducing rap lyrics to circumvent the propensity rule. The Federal version of that rule (Fed. R. Evid. 404(a)) provides: “Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . .” However, a prosecutor can introduce a rap song to show intent or plan or something else that’s relevant so long as it does not rely on the following chain of inference: This guy listens to or writes violent rap; therefore this guy is bad; therefore this guy is guilty. Where the same evidence is relevant both to character (and thus the “bad guy” inference) and to something legitimately contested, such as m.o., the trial judge is supposed to balance the legitimately probative character of the evidence against its unfairly prejudicial impact. The gist of the wire story linked above is that judges are generally striking that balance in favor of admission of rap lyrics. I’d need to know a lot more about the individual cases to say that this is the right balance, but given the popularity of rap, I’m dubious. Where it doesn’t tightly correlate with the particulars of the crime, the taste for rap may not actually tell us that a defendant has much more of a taste for real violence than does the taste for the violence of, say, Itchy & Scratchy. But for jurors who don’t themselves have the taste for rap (read “middle-aged white people” like me) the shock value may be so great as to trigger the bad guy inference.