Fourth Circuit Finds Defendant Rap Lyrics Were Admissible After He Presented Good Character Evidence

Federal Rule of Evidence 404(a)(2)(A) provides that 

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it

One of the most controversial types of evidence that courts typically allow is rebuttal evidence of a defendant's rap lyrics after a defendant presents evidence of his good character. It's a phenomenon I've been writing about for years, including in my essay, Freedom of Character: Creating a Constitutional Character Evidence Test. A recent example can be found in the Fourth Circuit's opinion in United States v. Watkins, 111 F.4th 300 (4th Cir. 2020).

In Watkins, Kenneth Watkins was charged with conspiracy to possess a controlled substance with intent to distribute. 

Toward the end of his defense presentation, Watkins called his wife, Childs, as a witness. Childs testified that she and Watkins are devout Muslims, that Watkins is a good father, and that Watkins has a strong work ethic. She described Watkins as “into his religion” and asserted that it is “not in his character to do drugs.”...On cross-examination, the prosecution asked Childs whether she had heard a lyric from Watkins and Cloud's song Don't Do It: “They've got more money than all them. We got more guns than all of them.”...Childs said yes. The prosecution next asked Childs about another lyric, but Watkins objected on relevance grounds before Childs could answer, and the court sustained the objection.

The prosecution then inquired about lyrics from more of Watkins's songs but Watkins again objected. The district court called counsel to the bench, where Watkins explained that he did not see his lyrics' relevance. The prosecution responded that Watkins “elicited character evidence...from his wife; that he's a good Muslim and anything like this is out of character.”...The court replied:

Normally I would prohibit this kind of cross on lyrics, but I do think the door was open wide on character evidence on Direct with respect to character traits of the defendant. So I think this is responsive to it and covered by Rules 404 and 405. And so any objection I'll deny, but I will say that it'll get cumulative soon....

The prosecution thus asked Childs about the lyric “I'm a doper, for real,” in Watkins's track You Know It.... Childs knew that line, too.

On redirect, Childs explained that she thought Watkins gave Anderson cash to deliver to Cloud as payment for a music video for their song Truckloads. On recross, therefore, the prosecution asked whether “Truckloads is a song about dealing drugs.”...Childs answered, “I wouldn't say it's just about dealing drugs.”...The prosecution then asked Childs if she was familiar with Watkins's lyric, “I've got truckloads and bales, don't even put it on a scale.”...Watkins objected on relevance grounds but the district court overruled the objection, and Childs confirmed that she had heard the lyric.

After Watkins was convicted, he appealed, claiming that evidence of his rap lyrics was improperly admitted. The Fourth Circuit disagreed, ruling that

The district court did not err in finding that Childs's testimony opened the door. Childs not only noted that Watkins was a “good Muslim” but explained that it was “not in [Watkins's] character to do drugs,” and she proceeded to support that opinion by reference to Watkins's faith, fatherhood, and work ethic. She painted a picture of Watkins as an upright family man and strongly suggested that, in accordance with that character, he would not have involved himself in the conspiracy to distribute eutylone. The district court reasonably concluded that those statements are character evidence that opened the door to counterevidence....

Accordingly, the prosecution was entitled to “offer evidence to rebut” Watkins's character evidence. Fed. R. Evid. 404(a)(2)(A). But it did not even go that far. The prosecution did not “offer evidence.” Rather, pursuant to Rule 405(a), it only “inquir[ed] into relevant specific instances of [Watkins]'s conduct.” The prosecution merely asked Childs whether she was “familiar” with Watkins's lyrics, accepting Childs's answer each time and never pushing for more detail.

I continue to question courts allowing for the admission of rap lyrics. It's tantamount to saying that a horror author is a violent person, rather than treating the author's words (or the rapper's lyrics) as artistic expression.

-CM