By Robert C. Bonsib, Esq.
In December, 2019 I posted a blog reviewing a decision of the Maryland Court of Special Appeals (“COSA”) in which the COSA affirmed the conviction of Lawrence Montague. At Montague’s trial, the prosecution was permitted to use rap lyrics that Montague that were recorded on a jail call between Montague and a friend.
Montague’s friend on his recorded advises Montague that the world is ready to hear his rap and then tells Montague – “I’m ready to record you…it’s going on my Instagram so you’re on live with me right now.”
Montague’s friend warned him about the risk of recording the lyrics and publishing them on social media to which Montague, with a boldness that was not matched by common sense, responded: “I’m gucci. It’s a rap. F–k they can do for — about a rap.?”
Well – the COSA and now the Maryland Court of Appeals (“COA”) – have made clear to Montague what they could do about his lyrics – and the short answer is that they have guaranteed that Mr. Montague will have 50 years to consider the wisdom of sharing his “artistic” recording with the social media world. His “freedom of speech” will be providing him 50 years of free room and board.
In its opinion, the COA instructed that there are two guiding principles that will govern the admissibility of such evidence: (1) even when there is probative value to the evidence, does the rap lyric even have an inherent prejudicial effect, and; (2) does the probative value of rap lyric evidence outweigh that prejudicial effect when the lyrics bear a close nexus to the details of the alleged crime?
The trial court is required to assess whether there is a “strong nexus between the specific details of the artistic composition and the circumstances of the offense for which the evidence is adduced.” Where such a nexus exits, and a jury can “reasonably view the lyrics as factual, not fictional,” the risk of improperly admitting the lyrics as propensity evidence of the defendant’s bad character significantly decreases. A close temporal nexus bolsters the admissibility of rap lyric evidence.
The COA acknowledged that “stop snitching” is a theme that is common to rap as a genre and, like rap music generally, may be misinterpreted by a jury and improperly used as propensity evidence – but it further notes its disagreement with the position that “stop snitching” references always undermine the probative value of rap lyric evidence. It further noted that “[r]ap lyrics that have a factual and temporal nexus to the details of the alleged crime are more probative of a defendant’s guilt when those same lyrics contain “stop snitching” references that are published to threaten witnesses to the crime.”
Here the COA affirmed Montague’s conviction concluding that “[g]iven the close nexus between Mr. Montague’s rap lyrics and the details of [the victim’s] murder, the lyrics make it more probable that Mr. Montague was the shooter.