Rap in the Courtroom: Evaluating the Implications of State of New Jersey v. Vonte L. Skinner

“I'm a run up, put that gun on 'em / I'm a run up, go dumb on 'em.” -- Bobby Shmurda

Walking through the streets of Flatbush, one may expect to hear these lyrics, rapped by Brooklyn rapper Bobby Shmurda, blaring incessantly from speakers on stoops or car stereos. A criminal indictment is probably the last place one would think to find this music. Yet these lyrics were cited by the New York Police Department (NYPD) as “almost like a real-life document of what [Shmurda and his associates] were doing on the street” in a news conference regarding the rapper’s 2014 indictment. [1] While Shmurda ultimately accepted a plea deal, the prominence of this case generated discussion on the broader use of rap lyrics as evidence in trials. Many law enforcement officials claimed that the rap lyrics contained proof of criminal intent, while civil rights activists argued that rap was a form of artistic expression and thus could not be considered criminal evidence. Regardless, the use of rap lyrics as evidence in criminal trials is becoming increasingly common, both in cases involving famous rappers and in those involving regular defendants. This article will examine the phenomenon of “rap on trial" [2] and situate it in the broader context of the criminal justice system. In totality, the use of rap lyrics as criminal evidence represents a new evolution in the employment of prosecutorial power to enforce a discriminatory criminal justice system.

In 2014, prosecutors read aloud thirteen pages of Vonte Skinner’s rap lyrics, many of them depicting violence, as evidence to suggest Skinner’s involvement in an attempted murder. Their strategy proved successful—in the 2014 New Jersey Supreme Court case State of New Jersey v. Vonte L. Skinner, the jury convicted Skinner despite deficiencies in the actual evidence connecting Skinner to the crime. However, Skinner appealed the verdict to his highest state court, contending that this use of his rap lyrics as evidence was inadmissible. Prosecutors claimed that the lyrics demonstrated Skinner’s “motive and willingness to resort to violence.” [3] Skinner and his defense team argued that the use of the lyrics “served no purpose other than to inflame the passions of the jury,” and that Skinner’s lyrics were “largely exaggerated” and “nothing more than artistic bravado.” [4] The court sided with Skinner, stating that his rap lyrics “constituted highly prejudicial evidence… that bore little or no probative value.” [5] 

In general terms, the court’s decision rested on two key points. First, the rap lyrics themselves contained no value as evidence proving a crime, as they were a form of artistic expression. Because forms of artistic expression can be interpreted as fiction, their content cannot be regarded as true. Thus, the court concluded, an artist cannot be assumed to have directly participated in the actions depicted in his art. In the opinion, the justices used the example of Bob Marley’s song, “I Shot the Sheriff,” arguing that no reasonable person would believe Marley actually shot a sheriff. [6] Second, in the specific case of Skinner, the lyrics unquestionably prejudiced the jury against the defendant. [7] The court argued that the graphic violence depicted in Skinner’s lyrics would have caused the jury to view him with fear and animosity, preventing the jury from impartially evaluating the facts of the case.However, despite strong legal arguments to the contrary, the use of rap lyrics has become popular as a prosecutorial strategy. As noted by professors Charis Kubrin and Erik Nielson in their article, “Rap on Trial,” an rising number of media reports and academic studies on the subject suggest a significant rise in instances of rap lyrics being used as criminal evidence. [8] Unsurprisingly, the growth of this phenomenon has troubling racial undertones: Kubrin and Nielson show that animosity has long existed between rap culture and law enforcement, with police frequently targeting and harassing popular rap artists who are overwhelmingly African American and Latinx. [9] The use of rap lyrics in courtrooms is simply an extension of this opposition: prosecutors refuse to view rap as a legitimate art form. Instead, they treat rap lyrics as “autobiographical confessions of illegal behavior” or “evidence of a defendant’s knowledge, motive, or identity with respect to the alleged crime.” [10]

 Law enforcement’s animosity towards rap and its refusal to recognize the genre as a complex artistic endeavor can likely be traced to racial prejudices. On one hand, law enforcement views rap negatively because this music directly threatens their authority. On the other hand, multiple studies have demonstrated that rap music “primes the negative culturally held stereotype of urban Blacks.” [11] These two factors are, ultimately, intertwined: the law enforcement’s view of rap as a threat derives from the stereotypes they may hold on the inherent criminality of young black males. [12] Of course, the negative perceptions of rap ignore the genre’s historical underpinnings as a celebration of the outlaw figure in African-American folklore and music, and the outlet it provides to young African-American males seeking to express the realities of their harsh urban environments. [13]

 In the context of New Jersey v. Skinner, the biases involved in the use of rap lyrics as evidence become even more conspicuous. The New Jersey Supreme Court established two clear and compelling legal arguments against the use of rap lyrics as evidence: the artistic expression contained in the lyrics, and the potential for jurors to be biased by prosecutors’ use of rap lyrics as evidence. However, legal precedent has not stopped prosecutors from continuing these practices. Thus, in the absence of legal justification, the rise of this phenomenon must be traced to other, more pernicious, factors. It is reasonable to suggest one factor may be the racial hostility towards young African-American males held by law enforcement.

 Racial prejudice among prosecutors has a long and disturbing history, and is a principal contributor to the current discriminatory criminal justice system. Michelle Alexander, a prominent civil rights activist and writer, argues in The New Jim Crow that prosecutors have broad and unconstrained powers in pursuing cases, making them “the most powerful law enforcement official in the criminal justice system.” [14] Importantly, prosecutorial powers have been employed in the maintenance of the system of mass incarceration that primarily targets poor racial and ethnic minorities. One example is the practice of “overcharging,” in which prosecutors “file more charges against a defendant than can realistically be proven in court” in order to intimidate defendants into taking plea deals. [15] Overcharging is extremely effective against poor black defendants lacking adequate legal representation, and has led to the mass incarceration of this group for low-level drug offenses. [16] 

Another is the race-based selection of jurors, a practice in which prosecutors use their power to strike (or dismiss) black jurors, who may be more sympathetic to black defendants than white jurors, during jury selection. Here, despite the presence of overt discrimination and laws supposedly prohibiting these practices, “the [United States] Supreme Court and lower federal courts have tolerated all but the most egregious examples of racial bias in jury selection,”​ [17] the most notable example being the 1995 Supreme Court case Purkett v. Elem. Race-based selection of jurors is used to select a jury that is less sympathetic to a black defendant in order to increase the likelihood of conviction.

In both these examples, prosecutors act in an extrajudicial manner to secure the convictions of defendants (who, in these cases, are predominantly poor and black). The use of rap lyrics as evidence clearly fits into this pattern of behavior. Similar to overcharging and the striking of black jurors, the use of rap lyrics as evidence has scant legal justification, but is largely condoned in the criminal justice system. Importantly, all three reflect the latent racism in the criminal justice system and produce discriminatory effects. The use of rap lyrics as evidence may heavily prejudice the jury against a defendant’s character, as a jury may choose to view a defendant’s lyrics as reflective of a predisposition to violence and crime, instead of a form of artistic expression. Furthermore, prosecutors are motivated to use these lyrics due to their distaste for rap, reflecting law enforcement’s general negative perceptions of young black men and their failure to accept rap as a nuanced musical genre. [18]

Ultimately, this phenomenon represents another fearful development in the expansive use of prosecutorial discretion to employ strategies discriminating against African Americans. While the idea of profane rap lyrics being read aloud in a courtroom may be entertaining, this issue itself is hardly amusing. Rather, it demonstrates the persistent nature of a racially-biased criminal justice system. Equally troubling, the issue of “rap on trial” suggests the potential criminalization of an art form that is an important means of social commentary for the African-American community. [19] 

Sources:

[1] Scott Eden, “The Surreal Saga of Bobby Shmurda - GQ,” GQ, May 25, 2016, https://www.gq.com/story/bobby-shmurda-trial.

[2] Charis E. Kubrin and Erik Nielson, “Rap on Trial,” Race and Justice 4, no. 3 (July 2014): 185–211, https://doi.org/10.1177/2153368714525411.

[3] State of New Jersey v. Vonte L. Skinner, https://law.justia.com/cases/new-jersey/supreme-court/2014/a-57-12.html (Supreme Court of New Jersey 2014).

[4] Ibid., 15

[5] Ibid., 39

[6] Ibid., 35

[7] Ibid., 34

[8] Charis E. Kubrin and Erik Nielson, “Rap on Trial,” Race and Justice 4, no. 3 (July 2014): 185–211, https://doi.org/10.1177/2153368714525411, 196.

[9] Ibid., 191

[10] Ibid., 197

[11] Ibid., 201

[12] Ibid., 201

[13] Ibid., 198

[14] Michelle Alexander, The New Jim Crow (New York, NY: The New Press, 2010), 85-86.

[15] Ibid., 86.

[16] Ibid., 86.

[17] Ibid., 118.

[18] Charis E. Kubrin and Erik Nielson, “Rap on Trial,” Race and Justice 4, no. 3 (July 2014): 185–211, https://doi.org/10.1177/2153368714525411, 190.

[19] Ibid., 204