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.
Nonetheless, at times courts 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 can be excluded if its probative value is sufficiently outweighed by its tendency to create unfair prejudice against the defendant. Still, First Amendment concerns likely play something of a role in this balance.
In any event, today’s Massachusetts high court decision in Commonwealth v. Gray (Mass. Nov. 15, 2012) [UPDATE: link fixed] illustrates this issue in the context of a gangsta rap video introduced to show that the defendant — who played a small role in the video — was indeed a gangsta; note the paragraph marked “[*]” by me, which is particularly vivid:
The defendant challenges the introduction of the rap video as evidence of his gang membership. In the circumstances of an apparently random shooting on a public sidewalk, evidence of the feud between H-Block and Heath Street, and of the defendant’s membership in Heath Street, was relevant to provide a reason for an otherwise inexplicable killing. “We repeatedly have held that evidence of gang affiliation is admissible to show motive or joint venture….” See Commonwealth v. Smith, 450 Mass. 395, 399, cert. denied, 555 U.S. 893 (2008) (evidence of defendant’s gang membership and turf war over use of park for drug sales properly admitted to show motive for shooting where police officer testified to defendant’s gang membership and ongoing territorial dispute based on personal knowledge, and even where evidence also included improper opinion evidence, it was harmless error because cumulative of gang membership evidence offered by multiple other witnesses); Commonwealth v. Garcia, 443 Mass. 824, 834 (2005) (evidence victim “flashed” gang colors admissible to explain defendant’s state of mind). Nevertheless, relevance is only the threshold inquiry, and the proffered evidence must also be more probative than prejudicial. The rap video was not.
As stated, after viewing the video that the prosecutor sought to introduce as evidence of the defendant’s membership in Heath Street and his “pledging allegiance” to the Heath Street gang, the judge ruled that its admission would be “more prejudicial than probative” and ordered it excluded unless the defendant challenged evidence of his gang membership. The judge allowed the video to be played for the jury, over vehement objection and offers by the defendant to stipulate to gang membership, following cross-examination of Duggan about the defendant’s photograph in the gang database….
[T]he rap video should not have been admitted. It was minimally if at all probative, and highly prejudicial. “[E]vidence that poses a risk of unfair prejudice need not always be admitted simply because a defendant has opened the door to its admission; the judge still needs to weigh the probative value of the evidence and the risk of unfair prejudice, and determine whether the balance favors admission.”
By the time the rap video was introduced, the defendant had not otherwise contested that he was a gang member; indeed, he had offered to stipulate to that effect. Sheehan had testified as an expert as to the defendant’s gang membership, and the Boston police gang database, containing the defendant’s photograph, had also been admitted in evidence…. [T]he defendant had refrained from cross-examining Sheehan precisely to avoid having the jury view the rap video.
The video was produced at an unknown point in or before 2005, and was available on a commercial Web site promoting rap artists. The defendant did not write or perform the lyrics or produce the video, and it was not found in his possession. The lyrics show no connection to the defendant that would suggest they were biographical or otherwise indicative of his own motive or intent at the time of the shooting. Contrast, e.g., Jones v. State, 347 Ark. 409, 417-421 (2002). Yet, the video was admitted specifically as an asserted statement of gang allegiance by the defendant, based on Sheehan’s voir dire testimony as to its meaning.
[*] Even if the video had contained direct statements of the defendant’s gang allegiance, we are not persuaded by the opinions of courts in other jurisdictions that view rap music lyrics “not as art but as ordinary speech” and have allowed their admission in evidence as literal statements of fact or intent “without contextual information vital to a complete understanding of the evidence.” In contrast to such treatment of rap music, “[c]ourts do not treat lyricists of other mainstream musical genres similarly, even those who live an outlaw lifestyle or promote an outlaw image … are not presumed to be making statements about their beliefs, intent or their conduct…. [W]ith respect to country music, we do not likely believe that Johnny Cash shot a man simply to watch him die. With respect to reggae, we do not generally take to heart Bob Marley’s proclamation: ‘I shot the sheriff, but I did not shoot the deputy….’” [Dennis, Poetic (In)justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 15 (2007).] We discern no reason why rap music lyrics, unlike any other musical form, should be singled out and viewed sui generis as literal statements of fact or intent.
Although Sheehan asserted during the voir dire that the video “consists of discussing being a Heath Street gang member and what takes place or what’s done or conducted by individuals who are Heath Street gang members,” there was no evidence that Sheehan was an expert on music video recordings or rap music. A police officer who has been qualified as a “gang expert” cannot, without more, be deemed an expert qualified to interpret the meaning of rap music lyrics…. [T]here was no basis on which either [of the witnesses who discussed the video] properly could offer an expert opinion on the meaning of the video as a pledge of gang allegiance, the reason for which it was ostensibly admitted. The jury heard no other expert testimony as to the video’s meaning. Compounding the error, in closing argument the prosecutor relied heavily on Sheehan’s voir dire explanation of the meaning of the video as the defendant’s “pledging his allegiance” to Heath Street, statements for which the jury heard no basis.
Balanced against the minimal probative value of the video, its prejudicial effect was overwhelming. Although the defendant is neither of the two featured rappers, lyrics such as “forty-four by my side,” accompanied by images of stereotypical “gangsta thugs,” some of whose faces are covered by bandanas, could not but have had a prejudicial impact on the jury. The impact of the video was evident even on the trial judge, who stated that he relied on it in reaching a conclusion concerning the defendant’s gang membership. Even if defense counsel’s question about the defendant’s photograph in the gang database is viewed as having challenged his status as a Heath Street gang member, other corrective measures, such as the defendant’s offered stipulation, would have been sufficient to rebut any perceived challenge. We agree with the initial determination of the judge: the prejudicial effect of the rap video far outweighed its probative value. Admission of the rap video was, in the circumstances, prejudicial error.