MICHEL MARTIN, HOST:
I'm Michel Martin and this is TELL ME MORE from NPR News. Almost as long as there has been rap music, it's been debated whether rap is art, and you can talk among yourselves about that later.
But now there is another debate. The issue is, is rap evidence - that is to say can rap lyrics be used as evidence in a criminal proceeding. In Virginia, prosecutors hope these lyrics by Antwain Steward, known as Twain Gotti, will help convict the rapper of double homicide. Here it this.
(SOUNDBITE OF SONG, "HIP FULL OF GUN")
MARTIN: We wanted to look at this issue a bit closer, so we've called upon Paul Butler. He's a law professor at Georgetown University Law Center. He's a former federal prosecutor. He's also the author of "Let's Get Free: A Hip-Hop Theory of Justice," with us from our bureau in New York City. Welcome back, Professor Butler.
PAUL BUTLER: Hey, Michel. Great to be here.
MARTIN: Also joining us, Alan Jackson. He is a partner with Palmer, Lombardi and Donohue. He's a former Los Angeles County prosecutor who introduced rap lyrics as evidence in a handful of murder cases, and he's written about prosecutions of gang cases. He joined us from NPR West, which is in Culver City, California. Mr. Jackson, thank you so much for joining us as well.
ALAN JACKSON: It's my pleasure. Thanks for having me, Michel.
MARTIN: And I'd like to start with you. During your time at the LA District Attorney's Office, you introduced rap lyrics as evidence, as I said, in a handful of cases. Can you just generally tell us when and why you think they are admissible?
JACKSON: Generally speaking, Michel, it's utilized to prove motive, intent, identity, absence of mistake - those types of things. Now it's important to note that it's something to be used in conjunction with other evidence. Very seldom, I think, would there ever be a prosecution that the sun rises and falls on simply the rap lyrics or a gangster rap song.
MARTIN: Can I just ask you how you happened upon this as evidence? Thinking back to your first case...
MARTIN: What made you think of it?
JACKSON: Probably as many different iterations as your imagination could conjure up are the number of ways that we've come across this, from finding in a suspect's backpack a notebook that is filled with one rap song after another, after another.
Another iteration is when we find a CD in somebody's possession that's been disseminated throughout the gang or throughout the neighborhood, simply listening to that song or those songs or those series of lyrics might lend itself to some relevant evidence, something that suggests either a confession, bragging, things of that nature. As you know, one of the cultural issues with gang life is bragging about gang life. And that's, oftentimes, what happens in these rap songs, and they just simply set it to music.
MARTIN: OK, let's hear from Paul Butler on this. I know you recently spoke on a panel about this. And I wanted to ask if you know how many cases nationwide where this has come up and tell us your perspective on it.
BUTLER: Well, there have been more and more prosecutors using the work of artists against them. And I'm thinking now, with this best-selling hip-hop artist named Rick Ross - Rick Rose (ph) Ross - 'cause that's how he says his name. He's full of bravado, and he spins all these tales about murder and slinging drugs. And before he was a hip-hop artist, he was a corrections officer because like other artists, he's a creative, imaginative person who's capable of imagining worlds outside of his own personal experience. So the problem I have with what prosecutors do is, you know, they used to talk in minstrel shows about blacking them up. They thug them up. They try to put artists with this thug-life reputation, and it's more prejudicial than probative. The jury may find it relevant or not, but they certainly will have a negative view of the artist after hearing lyrics like this.
MARTIN: What about cases, though, where there have been people who have committed mass shootings, for example, where you have found creative expressions they have written, which do speak to their intent to do something like this? I'm thinking about the Virginia Tech shooter, for example. And I mean, he was not a rapper, but his writing so concerned some of his English teachers that they tried to get mental health assistance for him. I mean, are you saying that no written expression should ever be counted as evidence, Paul, or what?
BUTLER: Look, if there's a written confession, then obviously that's relevant. But that's not what's happening in these cases. So Mr. Jackson talked about this artist who had this briefcase that was full of writing and poems and raps. I think we have to be very concerned about the chilling effect when FBI agents and states attorneys break into your house and look at what you've written to try to make a case against you. If it's a direct confession, obviously it's relevant. But if they're just trying to make extrapolations - you know, Johnny Cash, he wrote about murdering somebody for cash. Should we use that against him in a murder prosecution? No.
MARTIN: Well, let me ask Alan Jackson about that. And if you're just joining us, we're talking about the use of rap lyrics as evidence in criminal proceedings. Our guests are Georgetown University law professor Paul Butler and Alan Jackson. He's a partner with Palmer, Lombardi & Donohue. He's a former prosecutor. Actually, both of them are former prosecutors. But Mr. Jackson has introduced rap lyrics as evidence in murder cases in recent years during his time as a prosecutor. What about that, Mr. Jackson? I mean, the fact is that country music has a whole history of singing about, you know, shooting people and standing over them just to watch them die.
I mean, I can think of blues songs where people spun some pretty macabre tales, and these are recognized now as artistic expressions. I mean, I think Paul Butler's making the point that this seems to be attached to a particular group of people. What about that?
JACKSON: Which is exactly what the evidence code is there for. The Constitution protects the accused against exactly that sort of thing, which Professor Butler is talking about. And that's now what it's used for. Across the country, the cases that - certainly the cases that I've prosecuted and the cases that I've read about are not cases in which rap music has been introduced simply for the idea of thugging up, as the professor used that phrase, the defendant. That would never be admissible.
BUTLER: But do you think jurors could ignore that, Alan?
JACKSON: Oh, of course. We have to assume that 12 folks that are put in a box and their given a set of instructions will follow those instructions. And the instructions specifically say that only relevant evidence is to be considered by you, and you can weigh and balance that which you consider to be relevant. I think the Johnny Cash issue is - and it's really a false analogy. And I've heard it many, many times before.
MARTIN: Why not?
JACKSON: And folks tend to use that...
MARTIN: Why do you think it's false?
JACKSON: Because Johnny Cash was never suspected of having actually committed murder.
MARTIN: Well, let me ask Paul - but let me ask Paul Butler this. But what if Johnny Cash were - what if he had been accused of murder? Would not then his lyrics have been relevant?
BUTLER: Not unless he sang a country song about a specific incident for which he was being prosecuted. Otherwise, he has the same license as any other artist. But the difference between Johnny Cash and hip-hop artists is that most hip-hop artists are young, black men. Black men are perennial suspects.
MARTIN: Are you saying that prosecutors are basically listening to rap lyrics and then working backwards? Because what I heard Mr. Jackson say is that once something has already occurred, they see this as part of the story.
JACKSON: That's exactly...
MARTIN: So, Paul, I mean...
BUTLER: Well, there was an article in the New York Times just last week that talked about prosecutors not really suspecting a gentleman until they looked at his lyrics on YouTube or watched his videos. And then they started to make a case against him. He's now being prosecuted for murder. And, Alan, he was the prosecutor of the year twice in California. And for him to say that jurors could see thug life in a video but somehow not hold that against the defendant, that's just not the way the real world or trials work.
MARTIN: Alan Jackson, do you have any First Amendment concerns about this? I think Paul Butler is raising this whole question about, like, First Amendment expression. I mean, is it that you find it implausible that people have an artistic expression apart from their real lives?
JACKSON: Well, my suggestion, gently, would be if in fact we suspect someone of a crime and in their possession we find either rap music, rap lyrics, etc. that tends to corroborate other evidence that we have against that person, why should you be able to get a pass just because you call it art? And I'll give you an example. Tattooing is often called art. In 2008, in People vs. Anthony Garcia, there was a liquor store murder that had gone unsolved for about four years until Mr. Garcia was pulled over for, I think, driving on a suspended license or something.
Tattooed completely across his chest was the name of the store, the Christmas lights that were over the store, the bent light pole on the left of the store, the direction of the shots fired. And very notably, Mr. Peanut was the victim. The shooter was a chopper. Well, peanut is what Rivera 13 gang members call their rivals. And his name - his gang name was none other than Chopper. So the case against Mr. Garcia certainly did not rise and fall on the tattoo, but it was an investigative tool that was used to get to other evidence which then did implicate him in the crime. And now nobody would disagree with the argument that tattoos, generally speaking, are a form of art. But you don't get to confess to something, write something down and then set it to music and say, by the way, I'm going to call that art. That is a...
MARTIN: Have you ever been wrong, though?
JACKSON: ...That's a bad...
MARTIN: I mean, famously...
MARTIN: ...Saddam Hussein bragged about - no, I mean, Saddam Hussein wanted the world to think he had nuclear weapons. He didn't.
JACKSON: And I don't disagree. I don't...
MARTIN: So can I ask Mr. Jackson that?
JACKSON: I don't disagree.
MARTIN: Have you ever been wrong? Did you ever have a kid or a situation where a person wanted to present a certain image, but it wasn't true?
JACKSON: The answer is no. I've never been confronted with a situation in which we've used the evidence, and it later turned out that the person was just an artist that got caught up in the wrong circumstance. There are safeguards to make sure that we're not getting it wrong. The DA is the first gatekeeper. Then there's the evidence code that says only relevant evidence is admissible. Then the judge has to do a 352 analysis. Out here in California, that's what it's called when he weighs the probative value versus the prejudicial effect.
The jury then has to accept and weigh and balance and attach some weight to that evidence. And then of course, we have cross-examination. And I want that. I expect that. I want our evidence to be richly tested. But once it passes that test, then certainly I think it's something that's relevant for jurors to weigh and balance in the right circumstances.
MARTIN: All right, Paul, I gave Mr. Jackson, the first words, so I'm going to give you the last word.
BUTLER: Sure, I just want to...
MARTIN: Last word - final thought about this.
BUTLER: Yeah, the problem is that hip-hop music is some of the most real, imaginative and political parts of our culture. These artists are doing amazing things. I'm talking to you from New York where if you're a young black or Latino man, you get stopped by the police two or three times a year. And the last thing you want with these young brothers who are trying to do the right thing, trying to put their art out there, is for the police, in addition to touching their bodies, to go in their backpacks and look at what they're trying to create.
MARTIN: Paul Butler is a law professor at Georgetown University Law Center. He's the author of "Let's Get Free: A Hip-Hop Theory of Justice." He joined us from our bureau in New York City. Alan Jackson is a partner with Palmer, Lombardi and Donohue, a former prosecutor. And he joined us from our bureau in Culver City, California. Thank you both so much for joining us.
BUTLER: It's always a pleasure.
JACKSON: My pleasure. Transcript provided by NPR, Copyright NPR.