The relationship between art and real life has been the source of great debate. Recently, questions surrounding the relationship between art and life have entered the courtroom – more specifically the courtroom hosting a federal criminal trial involving charges related to drugs and violence - where the debate is no longer abstract and the stakes are high. At an increasing rate, federal prosecutors are seeking to introduce rap videos, made by the charged defendants, as relevant evidence in their attempt to prove the elements of the crimes charged. In essence, the art that the defendant's created – in the form of rap songs and videos - is now the very evidence that can lead to their convictions.
In two recent federal cases in New York, judges were faced with the question of whether to admit rap video evidence. The first is USA v. Taijay Todd – a case I handled personally in the Southern District of New York. My client, Mr. Todd, was charged by federal prosecutors with being a member of a conspiracy to commit Hobbs Act Robberies (ones that interfere with interstate commerce). The other is a case out the Eastern District of New York entitled USA v. Ronald Herron. Mr. Herron, was charged with racketeering offenses like gang-related drugs dealing and murder. In both of these cases, the government moved the Court to admit videos in which the defendants perform and recite rap lyrics in rap videos. The videos, as well as the lyrics, are undisputedly provocative in that they contain violent and shocking subject matter and content. In Todd, his professionally produced video depicts him inside a car, in possession of a firearm, along with 2 other individuals. At one point, ski masks are donned and the guns are prepared. The video then depicts Todd, along with others, engage in a gun point robbery inside a hallway of an apartment building. Throughout the video, which is no different than a short film, the music is playing and Mr. Todd continues to sing his original lyrics as he moves from scene to scene.
In Herron, the government sought the admission of several videos that depict him talking or performing rhyming songs in a rap performance style. The videos in Herron contain the type of lyrics known as the “gangsta” rap genre. This genre generally consists of the lyrics involving shootings, gangs, weapons possession and drug dealing.
In both cases, over the objections of myself and Mr. Herron's attorney, the Judge sided with the government and permitted them to present this video evidence to the jury ostensibly for the limited purpose of tending to establish the existence of the charged conspiracies, in furtherance of the conspiracies, and some evidence of their knowledge and intent. In other words, judges ruled that the contents of the defendants' rap videos themselves were relevant to show their state of mind to commit the crimes charged.
But are these correct decisions? Are they fair? Could these videos unfairly influence a jury to lean towards conviction? And how do these decisions reconcile with the fundamental idea of that we all have a constitutional right to freedom of artistic expression? Before you answer these questions, here is how the admission of these videos plays out in the court room. At some point during the government' case-in-chief, they will dim the lights, pull down the movie screen, turn up the sound, and begin to play the video at a moment of their choice. Then, up on the big screen is the defendant performing his very provactive and violent raps, or in Mr. Todd's case, images of him acting out a gun-point robbery accompanied by his original rap song.
This is quite an unduly prejudicial effect to the defendant's right to a fair trial - a trial where the jury's emotions should be neither unfairly excited nor improperly inflamed. The odds are that a solid majority of the jury pool are not “gangsta” rap fans, so, in light of what is portrayed and said in these videos, the jury, depending on their daily experiences might be left in an utter state of panic.
To be fair, the jury is usually instructed that they cannot consider the videos, and its content, as proof that the defendants had the propensity to commit the crimes charged. But frankly, is it even possible for the jury to separate the two? Given the stimulating nature of these videos - foreign and frightening to most jurors - most jurors would have a human tendency to turn a deaf ear to these limited instructions and, contrary to their instructions, view the videos as plain evidence of the defendant's guilt.
The critical question is are these videos anything more than the product of the defendant's artistic creation. Are they not based solely on what he sees and hears on a daily basis? His political expression? His reality? His life? They are clearly not confessions or admissions to any crime, but made for entertainment purposes and even perhaps to promote their career as a rap artist. In short, the songs were written to convey the sense of the singer's own experience on how everyday life is lived and seen – not about what they actually did or will do. And for this, a right to freely express themselves in an artistic way must be afforded to them.
Attorney Robert Soloway, who represents Mr. Herron, got it right when he analogized his client's rap lyrics with lyrics by Bob Marley (“I shot the sheriff, but I didn't shoot the deputy”) and Johnny Cash (“I shot a man in Reno just to watch him die”). These lyrics, as Mr. Soloway say, “cannot fairly be construed to mean the words, express admissions of personal conduct, acts, or even the author's true beliefs.” So why do the lyrics and videos have any relevance in trials of such magnitude? The rap videos made by the defendants expose, in a creative way, the harsh and bleak realities of the life they live.
The rap songs and rhymes deal with drug crimes, robberies and murders not because they have an intent to commit those acts, but because that is what is experienced on a daily basis. A prime example of art imitating life.