By: Ethan Copeland
Congressmen Johnson (GA-04) and Bowman (NY-16) are among those having identified an issue with the Federal Rules of Evidence.[1] Criminal courts are admitting defendants’ artistic expressions against them as evidence of their alleged crime.[2]Johnson and Bowman have re- introduced the Restoring Artistic Protection Act (RAP Act) to protect artists from wrongful use of their lyrics against them in criminal and civil proceedings.[3]
The proposal would create a presumption of inadmissibility unless, in a hearing without the jury, the proponent shows “clear and convincing evidence” of satisfying a subsection B exception.[4]The RAP Act would protect artistic defendants and impose a higher burden of proof for admission on the prosecution.[5] First Amendment encouragement has always been at the forefront of Supreme Court jurisprudence and although lyrics may depart from societal regimentation, this protection should not chilled.[6]
A recent Fulton County order illustrated the precise injustice the RAP Act intends to prevent.[7] On November 9th, Judge Glanville ruled that several defendants’ song lyrics were admissible against them to prove elements of their criminal charges.[8] Lyrics of most notable defendant Jeffrey Williams’, AKA Young Thug, could be admitted to “prove the nature of YSL as a racketeering enterprise and a criminal street gang.”[9]
As the ruling remains unpublished, one can only speculate that Judge Glanville based the ruling on binding precent.[10] Although one could argue that admitting the lyrics supplied extensive, unfair prejudice against the defendants, when considering Georgia common law, Glanville appears to have ruled within his discretion.
11th Circuit common law affords trial judges substantial discretion in admitting artistic expression against criminal defendants.[11] However, it also recognizes the need to omit lyrics that are startling and offensive to avoid unfair prejudice.[12]
The YSL case is another instance of a prosecutor using artistic expression against minority artists.[13] Notable African American rappers such as Snoop Dog, Boosie and Drakeo the Ruler have all had their lyrics used against them in criminal trials.[14] Comparatively, non-minority artists like Freddy Mercury and Johnny Cash were not indicted based on their lyrics “I just killed a man” and “pulled the trigger”, or “shot a man in Reno[15].” Significant trial judge discretion has led to discriminatory admissions against non-white artists and created a disparity needing attention.[16]
The issue of admissibility, regarding artistic expression, has also recently contacted the South Florida legal community in the Adelson murder case. Charlie Adelson was convicted of first-degree murder and solicitation of murder.[17] In an attempt to prove motive, the prosecution introduced a book written by the defendant’s sister that, if inferred to be biographical, would be probative for this element.[18] The prosecution’s theory was that the sister, Wendi Adelson, conspired with the defendant to murder her husband, Dan Markel, after losing her child custody petition.[19] Absent any objection from defense counsel, Wendi was questioned about the book and the prosecution established a motive against the defendant.[20]
If courts continue to admit musical lyrics against criminal defendants, the legal community will continue to see First Amendment creativity chilled and discriminatory admission against minority artists. Relying upon the current Supreme Court to correct this evidence law issue would be foolishly naïve.[21] We must look to the rules committee or congress for an amendment. Trial judges require discretion under Rule 403, but at minimum, a higher standard of reliability should be imposed on admitting artistic expression in criminal trials.[22]
[1] Congressmen Johnson, Bowman Re-Introduce Bill to Protect Artists’ 1st Amendment Rights,
https://hankjohnson.house.gov/media-center/press-releases/congressmen-johnson-bowman-re-introduce-bill-protect-artists-1st (last visited Nov 23, 2023).
[2] See Bey-Cousin v. Powell, 570 F. Supp. 3d 251, 256 (2021).
[3] Congressmen Johnson, Bowman Re-Introduce Bill to Protect Artists’ 1st Amendment Rights, https://hankjohnson.house.gov/media-center/press-releases/congressmen-johnson-bowman-re-introduce-bill-protect-artists-1st (last visited Nov 23, 2023).
[4] Restoring Artistic Expression Act, 118th Cong. 2023.
[5] Id.
[6] See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969) (holding that freedom of expression, even such that may cause disturbances or deviate from absolute regimentation, is essential to U.S. national strength and functional society); See Bey-Cousin v. Powell, 570 F. Supp. 3d 251, 256 (2021).
[7] Young Thug Lyrics Will Be Allowed as Evidence in YSL RICO Trial, https://www.nytimes.com/2023/11/09/arts/music/young- thug-lyrics-ysl-rico-trial.html (last visited Nov. 22, 2023).
[8] Id.
[9] Id.
[10] See Castillo v. State, 281 Ga. 579, 584-585 (2007) (Georgia Supreme Court holding that the trial court did not abuse their discretion when admitting song lyrics suggesting defendant might be inclined to violence); Thomas v. State, 270 Ga. App. 181, 183 (2004) (no abuse of discretion in admitting song lyrics to show defendant might be inclined to engage in violence with police).
[11] United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003).
[12] United States v. Gamory, 635 F.3d 480, 493 (11th Cir. 2011) (excluding rap video in prosecution for offenses related to drug conspiracy and money laundering where lyrcis presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle and the video was not clearly probative of the defendant’s guilt).
[13] Lyrics On Trial: A History of Rap Bars Used in Court and How Precedent May Effect Young Thug’s Fate, https://www.bet.com/article/w9idu1/rap-lyrics-court-history-young-thug-trial (last visited Nov. 22, 2023).
[14] Id.
[15] Bey-Cousin v. Powell, 570 F. Supp. At 256 (2021).
[16] Black Rappers Call Out Double Standard of Using Hip-Hop Lyrics as Evidence in Rapper Young Thug’s Criminal Trial, https://www.nbcnews.com/news/us-news/black-rappers-call-double-standard-using-hip-hop-lyrics-evidence-rappe-rcna65529 (last visited Nov. 22, 2023).
[17] Charlie Adelson found guilty in Dan Markel murder-for-hire conspiracy, https://www.tallahassee .com/story/news/local/2023/11/07/dan-markel-murder-hire-charlie-adelson-guilty-tallahassee-florida- conspiracy/71487731007/ (last visited Nov. 22, 2023).
[18] Law & Crime Trials, Wendi Adelson testifies in Brother’s Hitman Conspiracy Murder – Full Testimony Part Two, YOUTUBE (Oct. 27, 2023), https://www.youtube.com/watch?v=tnURxTq1dL4&ab_channel=Law%26CrimeTrials.
[19] Supra note 17.
[20] Law & Crime Trials, Wendi Adelson testifies in Brother’s Hitman Conspiracy Murder – Full Testimony Part Two, YOUTUBE (Oct. 27, 2023), https://www.youtube.com/watch?v=tnURxTq1dL4&ab_channel=Law%26CrimeTrials.
[21] See Samia v. United States, 143 S. Ct. 2004, 2010 (Holding that a Confrontation Clause violation could be cured by removing the co-defendant’s name and providing a limiting instruction to the jury).
[22] Restoring Artistic Expression Act, 118th Cong. 2023.
