The beauty in the First Amendment of the U.S. Constitution are the clauses that give citizens a right to freely express themselves and their beliefs. As music has evolved in our society, the First Amendment has allowed musicians and artists to express themselves. However, artists should not get the First Amendment mixed up with what a prosecutor can bring up against them in a case.

For many years Hip Hop has been a prevalent genre in music and is becoming increasingly popular each year. Particularly, the relationship between Hip Hop and the laws of this land has been violent to say the least. Being that Hip Hop emerges from the culture of inner-city communities, it is not difficult to see why there would be tension. Most inner-city communities have always struggled with policing and law enforcement.

Within the past four years, we have witnessed two native, New York based, Hip Hop artists face jail time after trials in which the rap lyrics in these artists’ songs were used, or rumored to be used, as evidence for the crimes that the artists were charged with.

In 2014, Ackquille Jean Pollard, better known as “Bobby Shmurda” (“Shmurda”), was arrested and charged along with others for murder, attempted murder, drug dealing, etc. There were speculations that Shmurda’s lyrics in his song “Hot N***a,” was a major factor in determining whether or not he had actually committed these crimes. In 2018, Daniel Hernandez, better known as “6ix9ine” (“69”), was arrested and charged with weapon possession, armed robbery, conspiracy, etc. Several of his songs were also admitted into trial to prove motive and intent to commit crimes. The question then becomes—can lyrics from songs be used as evidence to prove the elements of motive and intent in criminal cases?

The Supreme Court of New Jersey ruled in 2014 that offensive and violent rap lyrics could not be used as evidence due to the probative value not being able to outweigh the unfair prejudicial effect of the evidence. It stated that “[t]he use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution. Self-expressive fictional, poetic, lyrical, and like writings about bad acts, wrongful acts, or crimes generally should not be deemed evidential unless the writing bears probative value to the underlying offense for which a person is charged and the probative value of that evidence outweighs its prejudicial impact.” State v. Skinner, 218 N.J. 496, 525 (2014).

However, a court decision in California ruled opposite of the New Jersey decision. The California case also involved a defendant charged with crimes and the using of lyrics of these acts in his rap songs. The court acknowledged the Skinner case stating that:

In carrying out its analysis, the court [in State v. Skinner] applied a four-part test used in New Jersey to determine the admissibility of evidence of prior crimes or wrongful acts: the evidence of the other crime must be relevant to a material issue, it must be similar in kind and close in time to the offense charged, it must be clear and convincing, and the probative value must not be outweighed by the prejudice.

People v. Heartsman, A135202, 2015 WL 2400736, at *14 (Cal. Ct. App. May 20, 2015).

In Heartsman, the court instead chose to follow their own state’s case law which held that evidence of gang activity and membership could be introduced, even if it is prejudicial. Of course, the Federal Rules of Evidence apply to federal courts and states can choose to adopt them as they see fit. When probative value of evidence does not outweigh the prejudicial impact, under Federal Rule of Evidence 403, evidence is barred even if it is relevant. Skinner does a good job in establishing a test which should determine whether or not rap lyrics or any lyrics should be introduced as evidence in a criminal case.

A factfinder who is being given rap lyrics as evidence may be led to give the lyrics too much weight in deciding whether or not a defendant is guilty. This would be dangerous, especially since these lyrics are fictional in nature and could have been recorded at a time when the crimes the individual is accused of had not even occurred yet, or worse—did not happen at all. This is also troublesome when dealing with Federal Rule of Evidence 404 which states that evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. It will be interesting to see how far the use of lyrics from artists as evidence will go moving forward.