Speech as evidence, rap videos, and tattoos

From yesterday's Second Circuit federal appellate decision in United States v. Pierce:

[Melvin] Colon contends that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page….

The district court admitted into evidence a video that was made in December 2011 in the Melrose-Jackson Houses and depicted Colon, a cooperating witness Aubrey Pemberton, and a number of GFC [the "God's Favorite Children" gang] members. In the video, Colon is seen rapping: "YG to OG / Somebody make somebody nose bleed / I'm OG shoot the Ruger / I'm a shooter." At trial, Pemberton served as a guide through the lyrics, testifying that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The video helped establish Colon's association with members of the enterprise and his motive to participate in the charged conduct against members of the Young Gunnaz.

The district court also allowed the government to offer photographs of Colon's tattoos, some of which he had posted on his Facebook page. One of the photographs was a close-up of Colon's hand, showing his "Y.G.K." tattoo, which stands for "Young Gunnaz Killer." In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read "Courtlandt"; tattoos on his left arm that referenced Meregildo's nicknames ("Young" and "Killa"); and one stating "M .I.P. [Mac In Peace] T-Money," referring to Harrison, the former leader of CAC.

Colon argues that the admission of the rap video and tattoo images violated his First Amendment rights because courts should not "sustain a conviction that may have rested on a form of expression, however distasteful, which the Constitution tolerates and protects." This challenge is meritless, however, because here the speech is not "itself the proscribed conduct." The speech was not the basis for the prosecution, but instead it was used to establish the existence of, and Colon's participation in, the alleged RICO enterprise. See Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) ("The First Amendment … does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.").

Colon also argues that the rap lyrics were merely "fictional artistic expressions" and "perverse puffery" that should not have been admitted against him. Indeed, in State v. Skinner, the New Jersey Supreme Court recently overturned a conviction where the state's case at trial relied heavily on violent rap lyrics, as the court observed that "[o]ne would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff." Rap lyrics and tattoos are properly admitted, however, where they are relevant and their probative value is not substantially outweighed by the danger of unfair prejudice. See United States v. Moore, 639 F.3d 443, 447-48 (8th Cir.2011) (affirming admission of profane and violent rap recordings over Fed.R.Evid. 403 challenge where lyrics were probative of defendant's participation in narcotics conspiracy); United States v. Belfast, 611 F.3d 783, 820 (11th Cir.2010) (holding that rap lyrics were relevant and their probative value not substantially outweighed by any unfair prejudice in case where lyrics were used to show that defendant was associated with his father Charles Taylor's Anti-Terrorism Unit, which tortured Sierra Leoneans in Liberia).

The government proffered the rap video to show Colon's animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo—indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colon's First Amendment rights were not implicated when the district court admitted the evidence from his social media account.

I think this is likely correct. Generally speaking, a defendant's speech—even if constitutionally protected—may be introduced as evidence of his legally significant intentions or knowledge, or as evidence that he was indeed the guilty party. Thus, the statement "I hate Joe Schmoe" is constitutionally protected, but if I'm on trial for killing Joe Schmoe and the prosecution wants to show that I'm the one who did it, the statement would be admissible as evidence of motives.

The same is true for political statements. Thus, for instance, statements of Nazi sympathy were constitutionally protected even during World War II. But if a defendant is on trial for treason for harboring his son (a Nazi saboteur), and the legal question is whether the defendant helped the son with the specific purpose of helping the Nazis (as opposed to just a father's desire to help his son), the defendant's speech is admissible evidence of that purpose.

At times courts do refuse to allow such speech as evidence, especially when the speech is seen as having relatively little probative value. The reason isn't the First Amendment as such, but rather the rules of evidence, such as the rule that evidence should be excluded if its probative value is sufficiently outweighed by its tendency to create unfair prejudice against the defendant, or that "prior bad acts" evidence should usually be excluded if the jury is likely to use the evidence to infer a propensity for the crime (as opposed to showing a motive, intent, or other matters). First Amendment concerns likely play something of a role in this balance. But because this is fundamentally a question of the evidence rules related to the balancing of the benefits and harms, the analysis becomes much more subjective, and depending both on the facts of the case and the attitudes of the judges, than in a case involving the First Amendment as such.

The New Jersey Supreme Court decision last year in State v. Skinner—which the Second Circuit cited—provides an interesting illustration, because it (1) discusses a past case in which similar evidence was admitted, (2) explains why in this case such evidence shouldn't be admitted, and (3) explains the prior-bad-acts rule in some detail:

Only once before has this Court had to assess the admission of song lyrics as part of the trial evidence adduced against a defendant. In State v. Koskovich, 168 N.J. 448, 484-87 (2001), this Court considered the admission of what appeared to be killing-themed song lyrics found in a notebook that the defendant kept in his bedroom at the time of the offense. The admission of the violent song lyrics was argued, on appeal, to be error under an N.J.R.E. 404(b) analysis.

In affirming the trial court's evidentiary ruling, we agreed that the lyrics found in defendant's notebook were probative of the State's theory of the case. Specifically, we noted that the lyrics were able to shed light on the defendant's motive and intent for an otherwise inscrutable crime, and we evaluated the evidence's prejudicial effect in light of the overwhelming evidence of defendant's guilt.

However, an examination of the factual circumstances surrounding our decision in Koskovich reveals marked differences from the case here. In Koskovich, the defendant and his friend had called a pizzeria and placed an order for delivery to an abandoned home. When two pizza delivery men arrived, the defendant repeatedly fired his gun at their car, killing both of them. There was no obvious motive for the shootings, and the State's theory of the case was that defendant merely wanted to "experience the thrill of killing."

In searching the defendant's bedroom, the police discovered, among other things, a notebook containing what appeared to be song lyrics about killing. Other items associated with guns and killing also were found in the same room. The lyrics read to the jury were short: "'About killing, people, you can kill by [illegible]. On by guns, one night you break in, somebody home. And you take their money and kill by drive [illegible] down the road and shout, and shouting. By the big heads. The Best.'" The other items associated with guns and killing found in the bedroom also were introduced into evidence, along with rather overwhelming evidence of the defendant's guilt….

Ultimately, we agreed with the trial court that the song lyrics evinced a "sort of obsession with killing people," and, as a result, we determined that the trial court did not err in admitting the writings on the contested issue of the defendant's intent, We also determined that the lyrics shed light on the defendant's motive—a desire to experience the thrill of killing—in an otherwise indecipherable crime.

Importantly, we noted a "logical connection" between the writing of the killing-themed song lyrics that the defendant kept in his bedroom and the specific facts underlying the killing that occurred in Koskovich. Moreover, given the strong and overwhelming evidence of the defendant's guilt, the prejudicial impact of the lyrics was deemed not so inflammatory as to singlehandedly prejudice the jury against defendant. Accordingly, we upheld the trial court's admission of the lyrics to prove motive and intent, having determined that the lyrics satisfied the stringent test for admission under N.J.R.E. 404(b)….

Following Koskovich 's lead, the trial court and the Appellate Division in this matter utilized N.J.R.E. 404(b)'s framework to assess the admissibility of the rap lyrics written by defendant. Although Koskovich did not purport to establish a universal requirement that lyrics or similar expressive works by a defendant involving themes of criminality must be analyzed under N.J.R.E. 404(b), the courts' decisions to use the N.J.R.E. 404(b) framework in this matter is consistent with the safeguard that the rule provides.

It has oft been recognized that "[t]he underlying danger of admitting other-crime [or bad-act] evidence is that the jury may convict the defendant because he is 'a "bad" person in general.'" State v. Cofield, 127 N.J. 328, 338 (1992). For that reason, any evidence that is in the nature of prior bad acts, wrongs, or, worse, crimes by a defendant is examined cautiously because it "'has a unique tendency'" to prejudice a jury.

Put simply, a defendant must be convicted on the basis of his acts in connection with the offense for which he is charged. A defendant may not be convicted simply because the jury believes that he is a bad person. Because N.J.R.E. 404(b) guards against the wholly unacceptable prospect that a jury might become prejudiced against a defendant based on earlier reprehensible conduct, the rule "is often described as [one] of exclusion."

In Cofield, a four-part test was established "to avoid the over-use of extrinsic evidence of other crimes or wrongs" pursuant to a Rule 404(b) exception. The framework announced in Cofield requires that:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice….

While the direct parties to this appeal—the State and defendant—acquiesce to analyzing this case under the rubric of Rule 404(b), there is a debatable question whether artistic expression about crimes or bad acts should be evaluated under N.J.R.E. 404(b) at all. In other words, can the act of writing about a crime or bad act be a bad act itself?

The Attorney General as amicus argues that defendant's rap lyrics are not "crimes, wrongs, or acts" under N.J.R.E. 404(b) and therefore should be analyzed solely for relevance under N.J.R.E. 401. Its position enjoys some support. See, e.g., Joynes v. State, 797 A.2d 673, 677 (Del.2002) (concluding that authorship of rap lyrics is not "bad act" within meaning of Rule 404(b) and therefore should be governed by relevance standard).

To be sure, writing rap lyrics—even disturbingly graphic lyrics, like defendant's—is not a crime. Nor is it a bad act or a wrong to engage in the act of writing about unpalatable subjects, including inflammatory subjects such as depicting events or lifestyles that may be condemned as anti-social, mean-spirited, or amoral. However, the very "'purpose of Rule 404(b) is simply to keep from the jury evidence that the defendant is prone to commit crimes or is otherwise a bad person, implying that the jury needn't worry overmuch about the strength of the government's evidence.'"

Rule 404(b) serves as a safeguard against propensity evidence that may poison the jury against a defendant. Violent, degrading rap lyrics, of the type authored by defendant, have the capacity to accomplish just that. Not all members of society recognize the artistic or expressive value in graphic writing about violence and a culture of hate and revenge. Thus, the purpose of N.J.R.E. 404(b) is advanced by its application in a setting such as this.

[Footnote: Of course, rap lyric evidence that provides direct proof against a defendant—such as an admission or details that are not generally known and dovetail with the facts of the case—should be analyzed for relevance under N.J.R.E. 401 and evaluated under N.J.R.E. 403's standard for prejudice, and not the standard for prejudice under a Cofield analysis. Cf. Rose, 206 N.J. at 180 (recognizing intrinsic nature of evidence that "directly proves" charged offense as excluded from Rule 404(b)'s analytic framework). A jury need not be shielded from a defendant's confession simply because it is conveyed in a rap or other artistic setting.] …

To assess the admissibility of defendant's rap lyrics under N.J.R.E. 404(b), we turn to each of the Cofield prongs. [Footnote: The second prong, which requires that the other-crime evidence be similar in kind and reasonably close in time to the alleged crime, is implicated in circumstances factually similar to Cofield. That prong is not implicated in these circumstances. Therefore, we do not address it in our analysis.]

The first Cofield prong requires that the other crime, wrong, or bad-act evidence pertain to a material issue in dispute. At trial, the State suggested that defendant's lyrics provided valuable insight into defendant's alleged motive and intent to kill Peterson.

We agree with the State that, in this case, defendant's motive was genuinely in dispute; however, the State had evidence other than defendant's rap lyrics that it advanced on that score. Indeed, Peterson's testimony explicitly laid out for the jury the role that defendant played as the "muscle" in a three-person drug operation, in which Peterson had begun to skim money from Rothwell.

Peterson also testified that he had argued with Rothwell and had refused to return the nine-millimeter weapon that he had received as a member of Rothwell's drug team. In fact, we note that, in the State's opening, the prosecution asserted that defendant's "motive was to enforce the street laws against [Peterson], and his intent was to kill him."

The effect of defendant's rap lyrics was simply to bolster the State's motive theory, which was already supported by Peterson's testimony that defendant was the enforcer for Rothwell, who was being cheated by Peterson. As the Appellate Division succinctly stated, "[t]o the extent the lyrics depicting defendant as an enforcer and hit-man had any relevance beyond demonstrating his criminal propensity and depravity, it was to add weight to Peterson's testimony that defendant played that role for Rothwell." This Court has repeatedly discouraged the use of other-crime evidence merely to bolster the credibility of a testifying witness.

As for intent, defendant did not advance any evidence calling into question that Peterson's shooter had intended to kill him. The sheer number of times and places that Peterson was struck with bullets—seven shots in total to his torso, head, and neck—certainly provided the State with strong evidence of an intent to kill. Intent was therefore not in dispute. Defendant merely asserted that he was not the shooter, and the State did not advance the rap lyrics evidence for the purpose of identity. Thus, while the identity of the shooter was in issue, the shooter's intent was not.

Furthermore, defendant's rap lyrics only bear on the material and disputed issue of motive if one believes that those lyrics, many of which were written long before the time of Peterson's shooting, specifically relate to defendant's motive on the evening Peterson was shot and almost killed. The third Cofield prong requires that proof of the prior-crime evidence be demonstrated by clear and convincing evidence. Yet, there was no evidence that the crimes and bad acts about which defendant wrote in rap form were crimes or bad acts that he in fact had committed. Indeed, there is an utter absence of clear and convincing evidence, as required under prong three of Cofield, that defendant engaged previously in any of the events portrayed in his rap lyrics. The lyrics can only be regarded as fictional accounts. The State has produced no evidence otherwise.

Most importantly, the fourth Cofield prong requires that the probative value of the lyrics not be outweighed by their prejudicial effect. We before quoted at length several verses of defendant's rap lyrics, chosen because they exemplified the lyrics' glorification of violence and death, and defendant's apparent disregard for human suffering. More pointedly, the Appellate Division appropriately singled out a portion that particularly might have prejudiced the jury against defendant because of its apparent similarity to the type of shooting inflicted on Peterson:

To illustrate the risk of extreme prejudice, we refer to a portion of [a] lyric … "Got Beef, I can spit from a distance for instance; a [person] wouldn't listen so I hit him with the Smithern; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him." This lyric describes a shooting resembling Peterson's in that it involved multiple gun shots delivered to the head, "the mask," and chest, "the ribs," and the shooting was motivated by the victim's failure to listen. The jurors were left to speculate that defendant had done such things even though there was no evidence to suggest that his writing was anything other than fiction.

In this case, defendant's graphically violent rap lyrics could be fairly viewed as demonstrative of a propensity toward committing, or at the very least glorifying, violence and death. That prejudicial effect overwhelms any probative value that these lyrics may have. In fact, we detect little to no probative value to the lyrics whatsoever.

The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song "I Shot the Sheriff," actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story "The Tell-Tale Heart," simply because of their respective artistic endeavors on those subjects.

Defendant's lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual's artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced….

We hold that the violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged. Less prejudicial evidence was available to the State on both motive and intent. The admission of defendant's rap writings bore a high likelihood of poisoning the jury against defendant, notwithstanding the trial court's limiting instruction.

The 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.

In the weighing process, the trial court should consider the existence of other evidence that can be used to make the same point. If admitted, courts are cautioned to redact such evidence with care. In conclusion, we hold that rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence's probative value is not outweighed by its apparent prejudice….

The New Jersey opinion also cites some similar cases from other courts, though I didn't include them in the excerpt.