Tattoo You: Prosecutors in Brooklyn Murder Trial Use Defendant's Tattoos, Rap Lyrics as Evidence

I've written before on this blog about the slew of recent cases in which prosecutors seek to admit a defendant's rap lyrics as evidence against him in his criminal trial. The prosecutors in a current case in Brooklyn, however, have taken this tactic to a new level.

According to an article in the New York Daily News,

The chiseled torso of reputed Brooklyn crack kingpin Ronald (Ra Diggs) Herron is a walking billboard for his leadership of a violent crew and membership in the Bloods.

Jurors in Herron's racketeering and murder trial got an eyeful of muscle and mayhem when federal prosecutors displayed photos of tattoos on his arm and chest.

Herron's right bicep features ink showing the planet Earth balanced atop a hand making the Bloods gang sign. Underneath are the words, "If Ra ruled the world."   

A photo of Herron's chest shows the words, "Greatness prevails during destruction."  

So, what's the probative value of such evidence? 

The feds contend that the tattoos, along with the wannabe rapper's song lyrics and YouTube videos, are evidence of his criminal enterprise because they graphically depict how Herron was trying to make a name for himself as a gangsta rap artist and "project his power as the leader" of a Bloods crew in the Gowanus Houses.  

The videos, especially, show Herron's determination to "stand out as a real-life gangster who wrote songs ... about his real-life experiences as a violent gang leader," according to court papers.  

In turn,

the defense called an expert on rap music to knock down that theory.  SUSAN WATTS/NEW YORK DAILY NEWS The Gowanus Houses in Brooklyn, where Herron allegedly led a violent Bloods crew. "People will boast and brag about stuff," testified Professor James Peterson, director of Africana Studies at Lehigh University. “If you appear to be authentic, that is what's important.”

Peterson said rap lyrics are a written art form, like poetry and novels. Outside court, Peterson called it “absurd” that the government is using Herron’s lyrics as evidence against him.   

Herron's case hews pretty closely to the template that has been established in these types of cases: (1) The prosecution seeks to present rap lyrics (and, in this case, tattoos) into evidence; (2) the defense objects, citing various rules of evidence such as 403 and 404; (3) the judge deems the evidence admissible to prove knowledge, motive, m.o., etc., under Federal Rule of Evidence 404(b) or some state counterpart; and (4) the defendant is convicted (we'll see what happens in Herron's case).

In a forthcoming paper, I seek to shift the focus of the debate in such cases. The title of the paper is: Freedom of Character:  Creating a Constitutional Character Evidence Test. Here's the introduction:

In State v. Skinner, Vonte Skinner appealed his convictions for attempted murder and related crimes, claiming, inter alia, that the trial court erred by allowing the prosecution to introduce rap lyrics that he had previously penned, such as “Crackin’ your chest when I show you how the force spits, makin’ your mother wish she would have had an abortion.” In affirming Skinner’s convictions, the Superior Court of New Jersey, Appellate Division, found nothing anomalous about the trial court permitting the prosecution to introduce Skinner’s writings as character evidence to prove his motive and intent to commit the crimes charged.  Instead, according to the court, “[a]lthough writing about evil things and expressing evil thoughts is not a bad act, this court and the Supreme Court have recognized that when a defendant’s writing reflects his bad acts or a propensity to act badly, Evidence Rule 404(b) applies.” 

The court’s singular focus on the rules of evidence also was not aberrational. The New Jersey ACLU later drafted an amicus brief to the Supreme Court of New Jersey in support of Skinner in which it noted that, in eighteen similar cases, “[n]ot one [court] discussed the First Amendment implications of the issues raised.” Similarly, scholars addressing the admissibility of political, artistic, and other protected speech by defendants have focused exclusively on tweaking the application of the rules of evidence and ignored the rights contained in the First Amendment.

This essay seeks to fill the scholarly and judicial void by proposing a First Amendment test that courts should apply when prosecutors seek to introduce defendants’ speech as character evidence.  Under this constitutional character evidence test, assuming that the defendant can prove that his words are protected under the First Amendment, the prosecution would have to do more than simply satisfy the rules of evidence; it would also have to prove that application of the rules of evidence to the defendant’s words is narrowly tailored to advance a compelling state interest.

-CM