Court of Appeals of Maryland Finds Rap Lyrics Were Admissible Against Defendant Charged With Murder

Should a defendant’s rap lyrics be admissible against him at a murder or attempted murder trial? After a New Jersey court found that Vonte Skinner’s rap lyrics were admissible against him at his attempted murder trial, I wrote an essay, Freedom of Character: Creating a Constitutional Character Evidence Test, arguing that such lyrics should be admissible due to a combination of First Amendment and character evidence concerns (and concerns regarding racism). Subsequently, as. noted in a blog post, the Supreme Court of New Jersey reversed Skinner’s conviction, concluding in State v. Skinner, 2014 WL 3798993 (N.J. 2014) that the rap lyrics were improperly admitted.

Now, however, in Montague v. State, the Court of Appeals of Maryland has held that rap lyrics by Lawrence Montague were properly admitted at his murder trial, allowing for his conviction to stand.

According to the court, 

This case is about the admissibility of jailhouse rap lyrics composed by Lawrence Montague as substantive evidence that he shot and killed George Forrester. In the early morning hours of January 16, 2017, Mr. Forrester was shot and killed by a drug dealer after he attempted to purchase cocaine using a counterfeit $100 bill. Mr. Forrester’s cousin, Tracy Tasker, accompanied him to purchase the drugs and, after witnessing the shooting, fled in Mr. Forrester’s vehicle. Ms. Tasker was later arrested for unrelated warrants and identified Mr. Montague as the shooter. Mr. Montague was later indicted for Mr. Forrester’s murder.

Three weeks before trial, while incarcerated in the Anne Arundel County Detention Center, Mr. Montague made a telephone call to an unidentified male using another inmate’s personal identification number passcode. Mr. Montague requested that the unidentified male record his rap, which included lyrics that matched the details of Mr. Forrester’s murder. The rap lyrics also made references to shooting “snitches” and the recording was subsequently uploaded on Instagram. The State sought to introduce the recorded telephone call containing the rap lyrics as substantive evidence of Mr. Montague’s guilt, and Mr. Montague moved in limine to exclude the recording.

In doing so, the Court of Appeals of Maryland adopted the following test:

In sum, when a defendant’s rap lyrics are offered as substantive evidence of their guilt, those lyrics should be analyzed on a case-by-case basis using the evidentiary rules that courts routinely use in determining the threshold admissibility of evidence. Although rap lyric evidence carries inherent prejudicial effect, the probative value of a defendant’s rap lyrics shares an inverse relationship with unfair prejudice. The closer the nexus between a defendant’s rap lyrics and the details of an alleged crime, the lower the danger of admitting the lyrics as unfairly prejudicial propensity evidence of the defendant’s bad character.

This might sound somewhat compelling, but, as I argued in my essay, what ends up happening in this “nexus” analysis is the equivalent of a middle schooler trying to do a textual analysis of The Love Song of J. Alfred Prufrock. Here is the opening example that the Court of Appeals of Maryland used to establish the tight nexus between Montague’s rape lyrics and Forrester’s murder: 

In chronologically recounting the details of Mr. Forrester’s murder, Mr. Montague’s rap lyrics begin with: “And, if a n—a ever play / Treat his head like a target / You know he’s dead today.” The first verse is a reference to Mr. Forrester’s attempt to “play,” or cheat, Mr. Montague by purchasing cocaine using counterfeit money. The next two verses are an acknowledgment that Mr. Montague shot at Mr. Forrester, as if he were “a target,” for trying to “play” him during the drug transaction. Shortly after Mr. Forrester “played” Mr. Montague, he was shot to death—just as the lyrics recount.

Simply put, this seems like a real stretch and not something that should decide the fate of a murder defendant, especially when there’s a very real possibility that the jury will simply use the evidence to decide that the defendant is a thug who should be taken off the streets regardless of whether he committed this crime.

-CM