Increasingly, the Crown is relying on rap videos as evidence of guilt in criminal proceedings. Derstine Penman has been privy to this in cases including allegations of drug trafficking, involvement in a criminal organization, and murder. The reliance on rap as evidence of criminality has the greatest impact on Black and racialized men, as they are the majority of these content creators.
While scholars on Black political and cultural expression have characterized rap as “a vehicle to express the economic and social frustration of the Black community” , there is still widespread sentiments of negativity and biases around rap. The possibility for rap lyrics to be misinterpreted, misunderstood, and misused implicates an unassailable need to challenge the introduction of this evidence in court proceedings.
In R v Skeete, 2017 ONCA 926 (Skeete), the defence appealed a conviction of first-degree murder. At trial part of the evidence against the accused was the lyric “real niggaz don’t crack to the coppers, muthafucka”, from a song he recorded in jail entitled Live from the Don. The Crown submitted the lyric was indicative of motive for the murder as it demonstrated the accused subscribed to the code of silence. Despite the defence’s objections the trial judge permitted the evidence and ultimately a jury found Mr. Skeete guilty.
Justice Watt writing for the Court of Appeal considered whether the rap lyric was improperly admitted and outlined the governing principles: the evidence must be relevant, material, and compliant with any applicable rule of admissibility (Skeete, 144). Further the trial judge has the discretion to disallow evidence where the prejudicial effect overwhelms its probative value (Skeete, 151).
Justice Watt ruled the evidence in the present case was relevant as it “may support an inference of belief, and belief, of enforcement”, and material as it went to motive (Skeete, 166, 169). Further Justice Watt noted the lyrics did not violate the rules of admissibility considered at trial – bad character or hearsay evidence – as it reflected a state of mind and not an unrelated course of conduct, and the hearsay exception “admissions against interest” could be used to allow it into evidence (Skeete, 172 – 176).
However, Justice Watt found the trial judge’s analysis of probative value vs. prejudicial effect flawed, for reasons including the trial judge did not but should have considered in the evaluation of probative value “that simply because an author has chosen to write or speak about a certain topic, she or he has acted in accordance with its terms” (Skeete, 182).
Justice Watt thereby conducted his own weighing of probative value vs. prejudicial effect and determined the evidence was admissible for the following reasons:
- “There was a significant nexus between the lyrics tendered for admission and the offence with which the appellant was charged”
- The lyrics expressed the code of silence, which may support a belief and willingness to enforce the code
- “That the overwhelming majority of the entire composition discussed subjects that were irrelevant to the issues at trial does not diminish or otherwise sully the probative value of the lyric relied upon by the Crown”
- The lyrics were not evidence of bad character as it did “not lug into the minds of jurors the commission of other crimes or engagement in disreputable conduct apt to foster moral and reasoning prejudice”
- The trial judge provided careful limiting instructions (Skeete, 187 – 193)
The notion that although “the overwhelming majority” of Live from the Don “discussed subjects that were irrelevant to the issues at trial” yet that did not “diminish or otherwise sully the probative value of the lyric relied upon by the Crown” provides a broad and problematic range for what may be considered by the trier of fact.
We must recall, as the defence submitted in Skeete, rap is an artistic expression. Without the clearest of connections, lyrics should not be permitted into evidence.
First, rappers may not write their own lyrics. Second, and more importantly, rappers may not rap lyrics that are authentic to their lifestyle. Rather, in true artistic form, they may use this medium to lyricize and speak to issues faced by the larger community.
Recently, the world was awakened and took to various platforms to speak on the murder of George Floyd after witnessing the injustice in HD. Black persons, who have not only witnessed, but borne the burdens of socio and economic injustices for years, have been keen to speak and be heard on these issues, and have used rap as a mechanism to do so.
Rap is already viewed negatively in ways other genres are not; this cannot be understated and must be viewed hand in hand with the effects of anti-black racism. It is prudent on counsel to continue to do more to challenge the admissibility of this kind of evidence.
 See Adam Dunbar, Charis Kubrin, and Nicholas Scurich, “The Threatening Nature of “Rap” Music” citing Tricia Rose “Rap Music and the Politics of Black Cultural Expression”