Justices Side with ACLU-NJ that Violent Rap Lyrics Should Not Be Used in Criminal Trial Unless Directly Linked to Crime Itself

NJ Supreme Court unanimously recognizes rap lyrics as artistic expression

August 4, 2014

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The New Jersey Supreme Court today issued a decision holding that it was improper for the State to submit rap lyrics to a jury in a criminal case where the lyrics were not directly connected to the crime itself. The Court recognized rap lyrics – including violent and profane rap lyrics – as a form of artistic expression, but one that many people find distasteful, which could improperly prejudice a jury who reads them.

“From cave paintings to Johnny Cash to Game of Thrones, the history of art reflects all elements of society, including violent ones,” said Ezra Rosenberg of Dechert LLP, cooperating attorney for the ACLU-NJ. “Stripping a creative work of its context is a poor method for prosecuting crimes, and the Court was correct to determine Skinner’s lyrics had little probative value to the charges he faced, but could highly prejudice a jury against him. The inferences drawn from rap lyrics in particular, as opposed to other works, highlight the danger that racial bias may play in the American criminal justice system.”

The ACLU-NJ filed an amicus brief in the appeal of Vonte Skinner, who was convicted of murder based in large part on rap lyrics he had written entirely before the crime in question had taken place. The State never asserted that the lyrics provided direct evidence regarding the crime, nor did the State prove that the lyrics were anything but fictionalized expressions. Rather, the State submitted the lyrics to the jury as evidence of a general motive and intent.

In its brief to the Court, the ACLU-NJ argued that rap lyrics are artistic expressions protected by the First Amendment, and that the use of such writings in the criminal context can chill freedom of speech. The ACLU-NJ therefore sought a rule that would limit the circumstances under which artistic expression could be used as evidence. Today’s ruling did just that.

The Court recognized that violent rap lyrics, although found by some to be distasteful, are artistic works and that authorship itself doesn’t imply that the writer has acted in a manner consistent with the content. The Court importantly noted that we don’t presume Bob Marley shot a sheriff or that Edgar Allan Poe buried someone under his floorboards.

The Court wrote: “Without a strong connection to the attempted murder offense with which defendant was charged, the admission of defendant’s rap lyrics risked unduly prejudicing the jury without much, if any, probative value. … Extreme caution must be exercised when expressive work is involved, particularly when such expression involves social commentary, exaggeration, and fictional accounts.”

The Court continued: “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 ACLU-NJ is extremely pleased that the New Jersey Supreme Court placed proper limits on the State’s use of rap lyrics that have little probative value to a case, but that can highly prejudice a jury,” said ACLU-NJ Legal Director Ed Barocas. “Free expression includes the right to speak about violence or crime, whether tastefully presented or otherwise.”

The opinion and the ACLU-NJ’s amicus brief in State v. Skinner can be read online.