Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, April 1, 2014

Confessions and Concoctions ... Continued


In an April, 2014 blog post, I discussed a number of recent criminal trials in which prosecutors had offered into evidence violent rap lyrics that were composed by the defendant. I expressed some skepticism about whether such evidence passed the standards for admissibility in most cases.

A recent decision from the New Jersey Supreme Court has affirmed a lower court ruling that it was error to admit such evidence, at least under the facts of that case.  The court applied a multi-factor test that, among other things, weighs the probative value of the evidence against its potential for unfair prejudice.  In discussing that balance, the court stated:

"That prejudicial effect overwhelms any probative value that these lyrics may have.  In fact, we detect little to no probative value to the lyrics whatsoever.  The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.  One would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff, or that Edgar Allen Poe buried a man beneath his floorboards, as depicted in his short story 'The Tell-Tale Heart,' simply because of their respective artistic endeavors on those subjects.  Defendant's lyric should receive no different treatment."

I agree with the court--particularly on the specific facts before it--but I believe that its assessment of the potential for prejudice in these circumstances is incomplete.  In my view, it is not just possible that members of the jury will presume that an author has acted in a manner consistent with their writing.  I think it is likely they will do so. 

Indeed, readers often presume that works of fiction reflect the experiences of the author.  This is the bane of the existence of many writers of fiction--particularly salacious fiction--and instances of it are legion.  Because his novel The Sun Also Rises sympathetically depicted a protagonist whose genitalia had been injured in the war, Hemingway had to disabuse readers of the notion that he had sustained similar wounds.  The story goes that he would sometimes drop his trousers to display the "evidence."  Similarly, because her erotic Sleeping Beauty novels focus on sadomasochistic themes, some readers concluded that Anne Rice was a dominatrix in her spare time.  Rice's husband wryly observed that this was all just fiction, and that she was no more a dominatrix than she was a vampire--one of her other favorite literary subjects.

The law of evidence is a psychological discipline and  our evidence rules are shaped by a range of psychological considerations: What drives people to act in certain ways?  What sorts of out-of-court incentives and disincentives do our in-court rules create?  When is someone speaking reliably?  How does a jury process the information we give it?  What does the jury think it knows about human psychology and behavior that is outdated, misinformed, biased, or just plain wrong?  How do we unsettle those misapprehensions? 

In my judgment, most jurors will, for understandable reasons, presume that people write about what they know, that all fiction is autobiographical, and that rap lyrics tell us a lot about the real-world actions of the person who wrote them.  They will treat a fact that is sometimes true as one that is presumptively true.  And they will therefore over-value the evidence--perhaps substantially.

Our application of the evidence rules needs to take this psychological reality into account.

Otherwise, these cases may have some very unhappy endings. 

 
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The April post:

Here's the first scenario:


Smith is accused of the shooting murder of Jones. The prosecutor wants to introduce into evidence a statement that Smith made to a large group of people sometime after Jones had been killed. Smith said: "I shot someone but nobody saw me."


Is the statement admissible? Almost certainly so. Smith doesn't identify the victim, but that doesn't matter for relevancy purposes. The fact that he says he shot someone makes it more likely he did so, and the fact that he shot someone makes it more likely that he shot Jones.


Nor does the evidence give rise to a hearsay problem, even though the prosecutor is tendering it to prove that what Smith said is true. That's because hearsay does not include a statement being offered against the person who made the statement.


Nor does the statement fall into the category of inadmissible character evidence, even though it certainly makes Smith look bad. After all, the prosecutor isn't offering the statement to show that Smith generally has a bad character, but to show that Smith shot Jones. Even if Smith's character is otherwise nonviolent, saintly, and pristine this evidence still helps prove the prosecutor's case.


Here's the second scenario:


Smith is accused of the shooting murder of Jones. The prosecutor wants to introduce into evidence a statement that appears in a best-selling novel written by Smith. In the novel, one of the characters says to another "I shot someone but nobody saw me."


Is this statement admissible? I doubt it, at least on these limited facts. That Smith had a fictional character say he shot someone doesn't seem to make it more likely that Smith himself did so. It's not clear that this evidence even passes the relevance test, forgiving as it is.


Given its limited--perhaps nonexistent--relevance, we might wonder why the prosecutor would want to put the evidence in. Perhaps the prosecutor wants the jury to think of Smith as a person who likes to write about violent criminals and who therefore must himself have violent propensities. If so, then the prosecutor wants to offer this as character evidence--a use the rules condemn.


Why does this matter? Because in dozens of recent cases prosecutors have sought to offer evidence against criminal defendants that might or might not be admissible, depending on whether you think the evidence is closer to scenario number one or scenario number two.


In those cases, prosecutors have tried to put into evidence statements that criminal defendants made in the context of rap songs the defendants composed. A recent New York Times article reports that prosecutors have tendered such evidence in dozens of cases in the past two years. This has sparked a heated debate between prosecutors, criminal defense lawyers, civil libertarians, and legal scholars.


A good deal of the debate seems to turn on some uncertainty about the art form itself. Is a violent lifestyle essential to credibility as a gangster rapper? If so, then, the argument goes, such lyrics do indeed amount to personal confessions.


Or are these artists simply manufacturing a fictionalized persona that helps them sell songs? If so, then, the argument goes, these concoctions are no more confessions than are the narratives we find in the works of Bret Easton Ellis, Fyodor Dostoevsky, or William Shakespeare.


This debate does not lend itself to a binary analysis or a single rule. Consider this example, discussed in the New York Times article: should Johnny Cash be indicted after singing that he "shot a man in Reno, just to watch him die?" Of course not, says the ACLU; it's just a song. Not so fast, replies a prosecutor. Was the Man in Black living in Reno at the time of a mysterious and apparently unmotivated shooting?


Perhaps, to know how that case should be decided, we need more facts. Was a crime committed that  fits the description in the song? How specific is that description? Is there other evidence that links Cash to the crime?


The good news is that judges can sort through the circumstances of each individual prosecution on a case-by-case basis rather than by reference to a comprehensive bright-line principle.


And that is also the bad news.


Concluding that we've arrived in one of those legal spaces that demands case-by-case adjudication is always unsatisfying. Yes, such an approach spares us the injustices of fixed rules. But it is also unpredictable, mushy, and subject to abuses that may prove hard to correct.


Furthermore, our concerns about case-by-case adjudication are particularly high where dire consequences will follow from getting it wrong.


These are such circumstances. Exclude the evidence and an emboldened killer may go free. Let the evidence in and an innocent person may be condemned for an act of imagination--and freedom of expression by all artists may be significantly chilled.


It is a situation ripe for pain, injustice, and tragedy.


It seems like the sort of stuff of which great songs are made.