Rap Lyrics as Evidence (Part 1)

“Real niggaz don’t crack to the coppers, muthafucka”.

Rap lyrics are often a vehicle for social and political commentary.  Sometimes they are profane, violent, and disturbingly mean-spirited.  And sometimes they are evidence.

As Crown evidence, the artistic self-expression of an accused often has little probative value.  When that self-expression is inflammatory and transgressive (as some rap lyrics are) its use at trial can be highly prejudicial. But that is not always the case. For instance, in the recent R. v. Skeete, 2017 ONCA 926, an inflammatory rap lyric (above) was held to be admissible as evidence, its probative value outweighing the prejudicial effect of its admission.

Admissions Against Interest

Admissions, in the broad sense, refer to any statement (or conduct) made by a litigant and tendered as evidence at trial by the opposing party.

R. v. Foreman, 2002 CanLII 6305 (ON CA).

The admission need not be against the declarant’s interest (notwithstanding that admissions are sometimes categorized as “admissions against interest”).

Admissions are presumptively admissible without the necessity of a voir dire. [FN]

R. v. S.G.T., 2010 SCC 20 (CanLII);

R. v. Foreman, 2002 CanLII 6305 (ON CA), at para. 37.

Admissions are received as an incident or product of the adversary system when tendered by the opposite party. Reception of admissions is rooted in the belief that what a party has previously stated can be admitted against the party in whose mouth it ill lies to complain of the unreliability of his or her own statement.

R. v. Evans, [1993] 3 S.C.R. 653, at p. 664.

An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect.

R. v. Terry, 1996 CanLII 199 (SCC), at para. 28.

Probative Value

The term “probative” means “tending to prove”.  In assessing probative value, a trial judge is necessarily determining the degree or extent to which the evidence will prove the material fact in issue for which it is tendered. 

Some weighing of the evidence is involved in determining probative value. What this weighing exercise requires will vary according to the specific inferences sought to be drawn from the piece of evidence.

R. v. Skeete, 2017 ONCA 926 , at para. 153;

R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544.

Identifying the Probative Value in Forms of Artistic Expression

As a form of artistic expression, a rap song lyric is not necessarily probative of the "truth" expressed therein; an author may have any number of motivations for expressing him- or herself in a given fashion, only one of which is to recite what he or she did.   

See R. v. Terry, 1996 CanLII 199 (SCC), at para. 29 (discussing the probative value of a poem).

Because an author has chosen to write about certain topics, it may not be reasonable to infer that he or she holds or acts in accordance with those views. It logically follows that we ought not to be too ready to embrace lyrics as a basis upon which to infer a particular state of mind in their author.

R. v. Terry, at para. 156;

R. v. Skeete, at para. 182:  the nature of the evidence – a form of artistic self-expression – is a factor a trial judge should consider in assessing its probative value.

Fictional forms of inflammatory self-expression, such as poems, musical compositions, and other like writings about bad acts, wrongful acts, or crimes, are not properly evidential unless the writing reveals a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged, and the probative value of that evidence outweighs its apparent prejudicial impact.

State v. Skinner, 218 N.J. 496 (2014) [New Jersey Supreme Court].

In R. v. Skeete, the Court of Appeal concluded there was a significant nexus between the admission (the rap lyric) and the appellant’s motive to kill the deceased: 

“The lyric expressed the code of silence. It was open to an inference that the appellant, as its composer, knew about the code. Knowledge of the code may support an inference of belief in it, and belief may support an inference of enforcement in response to a breach. These need not be the only inferences available for the evidence to have probative value.”

[FN] It is only where the accused makes a statement to a “person in authority” that the Crown bears the onus of proving the voluntariness of the statement as a prerequisite to its admission, under the confessions rule.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca