If we were to take music lyrics literally, we would have to believe that Eminem’s ex-wife is somewhere at the bottom of a lake. We would have to take it as fact that Johnny Cash shot a man in Reno just to watch him die. Of course, Bob Marley would have been charged for shooting the sheriff (but not the deputy).
As ridiculous as the notion of interpreting song lyrics as evidence of a crime may sound, it is actually part of a current debate in criminal law. In the past few years, song lyrics have become part of the evidence in several criminal cases. Last month, a Kansas judge ruled that rap lyrics written and performed by Phillip D. Cheatham, Jr., will not be heard by the jury in his double-murder retrial. The prosecution argued that the lyrics are a confession to the murders of two women. Cheatham’s lawyer argued that many artists use songs to tell fictional stories. 1
Another rapper from Virginia, Twain Gotti (birth name: Antwain Steward), was tried for the killing of two men. A song he wrote contains these lyrics: “But nobody saw when I [expletive] smoked him/Roped him, sharpened up the shank, then I poked him/ 357 Smith & Wesson beam scoped him.” Though he was acquitted of the murders, Steward is now serving 16 years in prison for weapons charges. 2
“Prejudicial or Probative?”
Ultimately, the question about whether lyrics could be evidence in a case depends on the judge. In both federal 3 and California 4 state courts, the judge has the discretion to exclude evidence if he or she finds it to be more prejudicial than probative. In other words, the judge decides if the evidence should be heard by the jury or whether it will waste time, confuse issues, mislead the jury, or unduly create a bias against the defendant.
This rule allows judges to prevent evidence from being introduced that is only designed to get an emotional reaction out of the jury, and would make it more difficult for them to fairly evaluate the evidence of the case.
“Our raps are documentary. We don't take sides.”
Those are the words of Ice Cube, one of the founding members of N.W.A., in an interview he did shortly after the release of the group’s record-breaking album, “Straight Outta Compton.” 5 Cube stated that the group’s edgy and controversial lyrics about violence, drugs, and corruption within police agencies were designed to expose people to life in the poorest neighborhoods of South Central Los Angeles and came from stories they heard.
“We use the same kind of language as the kids use every day. In the black community, the ministers and teachers don't deny that the problems we rap about exist, but they'd rather sweep it under the rug. Maybe that's why we sell so many records(…)”
The same is true of narcocorridos, which are enormously popular Latino folk songs about the violent world drug cartels. The stories told by the lyrics are often about brutal executions, kidnappings, and drug deals gone wrong.
“It is over the top and it's meant to be over the top," explains Elijah Wald, author of the 2002 book "Narcocorrido: A Journey into the Music of Drugs, Guns and Guerillas." "To some extent it's like the hyper violence in slasher movies where the fans are laughing and saying 'Oh my God, did you see that?''' 6
A Dangerous Precedent
Allowing song lyrics into a criminal prosecution could prove to be highly prejudicial to a defendant. Many of these songs are accounts of stories that the artist heard from someone else. In addition, the details of the events on which the lyrics are based are often exaggerated for shock value, and though some have a connection to reality, they are usually heavily fictionalized.
These facts alone make song lyrics unreliable accounts of events, and are more likely to anger a jury, making it impossible for them to look past the emotional impact of the lyrics and at the true facts of a case.
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3. [Fed. R. Evid 403: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”]↩
4. [Cal. Evid. Code Section 352: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”]↩
5. [Mark Cooper, “NWA: 'Our raps are documentary. We don't take sides’'’, The Guardian, October 1989. The interview was republished on August 7, 2013, and is available at http://www.theguardian.com/music/2013/aug/07/nwa-1989-classic-interview.]↩
6. [ Deborah Hastings, “'Narcocorridos,' the popular Latin music styled after American hip hop, bring about bloodshed and Grammy wins,” New York Daily News, December 17, 2013, available at http://www.nydailynews.com/news/world/performers-narcocorridos-sell-arenas-u-s-mexico-generate-millions-sales-songs-romanticizing-drug-lords-beheadings-violent-drug-ballads-win-grammys-article-1.1536307]↩