Rap lyrics used as evidence in criminal cases

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• WILLIAM BRANGHAM:

  Seven years ago, middle of the day in Newport News, Virginia, and someone starts shooting.

• OPERATOR:

  Newport News 9/11

• CALLER:

  Yeah, he shot him! He shot that boy.

• WILLIAM BRANGHAM:

  When local police arrived at the scene, they found two young victims. A twenty year-old was laying near death on the front porch. (He'd die later at the hospital.) A sixteen year-old was already dead — behind the house, face down in the grass.

• WILLIAM BRANGHAM:

  But police couldn't find any leads — no witnesses, no weapon – so a double murder investigation went nowhere. But four years later, a new detective — Carlos Nunez — was assigned to the case. He got a tip that a local rapper Antwain Steward (seen here in this video) was the shooter, and that Steward — who uses the stage name 'Twain Gotti' — had actually written a rap song bragging about the murder.

• WILLIAM BRANGHAM:

  Steward at the time was an up-and-coming young rapper who had a gun-possession conviction. Steward produces what some call 'gangsta rap' — his lyrics overwhelmingly focused on violence and drug dealing and gang life. One song caught the detective's eye. When Nunez heard it, he believed steward was bragging about the murder. Listen:

  ANTWAIN STEWARD song "Ride Out": Listen, walked to your boy and I approached him Twelve midnight on his traphouse porch and Everybody saw when I mother—–' choked him But nobody saw when I mother—–' smoked him Roped him, sharpened up the shank then I poked him .357 Smith & Wesson bean scoped him

• WILLIAM BRANGHAM:

  Some of the details match: the shooting happened on a porch, no witnesses came forward… but others don't: time of day is wrong, there wasn't any stabbing, caliber of the gun is wrong, and there's only one victim mentioned, not two.

  But — more importantly — is this evidence of anything? Is it just a song? Or is it a confession?

  Based largely on that rap, and accounts of two witnesses given years after the shooting, the rapper was arrested and charged with double murder. Steward claims he's innocent. He's been in jail ever since his arrest.

  During his initial interrogation, the detective zeroed in on Steward's lyrics.

• DETECTIVE CARLOS NUNEZ:

  It's a rap song you sang way back then. It say ''Everybody saw me when I choke him, but nobody saw when I smoke him.'

• ANTWAIN STEWARD:

  What that got to do with any motherf—– murder that you just f—— threw at me?

• DETECTIVE CARLOS NUNEZ:

  And the trap house porch. .357 scope.

• ANTWAIN STEWARD:

  What do that got to do with anything?

• DETECTIVE CARLOS NUNEZ:

  You described the murder. You talk about the murder.

• ANTWAIN STEWARD:

  Listen man….

• ANTWAIN STEWARD:

  When I was in interrogation, that's the first thing he threw at me. The detective threw that at me. He's saying "You know I got every song you ever made," but I ain't know nothing he was talking about.

• WILLIAM BRANGHAM:

  So you had nothing to do with the killing of those two men.

• ANTWAIN STEWARD:

  Nothing at all. I don't know nothing about it.

• WILLIAM BRANGHAM:

  James Ellenson is Steward's lawyer.

• JAMES ELLENSON:

  It seemed like the rap lyrics sort of formed the basis of their investigatory tool as to why they started thinking that maybe it was Antwain Steward had committed these, this double murder.

• WILLIAM BRANGHAM:

  Though the lyrics were instrumental in building this case — (they were cited in an affidavit, in the interrogation, and in a pretrial hearing), the prosecutor ultimately decided not to play them to the jury. But in many other cases nationwide, rap lyrics are playing an increasingly prominent role in criminal cases.

• DAVID LABAHN:

  When something occurs in that video and that rap matches the crime, it's going to be real hard in a criminal court to try to attempt on behalf of the defense to exclude it.

• WILLIAM BRANGHAM:

  David LaBahn is a former gang prosecutor and is now the CEO of the Association of Prosecuting Attorneys

• DAVID LABAHN:

  On behalf of prosecutors, if it's matching, that would very much be another piece of evidence that we would like to admit to the case, because we think it is relevant.

• ERIK NIELSON:

  I can tell you that it's in the hundreds.

• WILLIAM BRANGHAM:

  Hundreds of instances.

• ERIK NIELSON:

  Hundreds of instances where rap lyrics are being used at some point in the criminal justice process.

• WILLIAM BRANGHAM:

  Erik Nielson of the University of Richmond is a scholar of rap, and a strong critic of its use in criminal proceedings, which he says too often mistakes a musical art form for evidence of criminal behavior.

• ERIK NIELSON:

  What prosecutors have found is that when they can introduce rap lyrics as evidence, particularly in situations where they don't have strong evidence otherwise, they are still able to secure convictions.

• WILLIAM BRANGHAM:

  No one tracks exactly how often rap lyrics help secure convictions, or even how often they're used before trial to secure plea bargains. There also aren't any hard and fast rules about using them in court: a judge must weigh a lyrics relevance, versus its potential to unfairly prejudice a jury.

  There are some cases – like Dennis Greene's – where the connection between a rap and a crime is clear. In 2003, Greene brutally killed his wife, and then rapped specifically about committing the murder. The lyrics were introduced at trial, and he was sentenced to life in prison. But other cases aren't as clear cut:

• NEWS REPORTER:

  Three specific words are what prosecutors hope will link Terrence Hatch…

• WILLIAM BRANGHAM:

  Two years ago in Louisiana, a rapper named Terrance Hatch — known as Lil' Boosie — was tried for first degree murder. Prosecutors argued that a few cryptic words of one rap song were in fact a confession. Hatch was found not guilty.

• WILLIAM BRANGHAM:

  But one of the most controversial and contested uses of rap lyrics in a trial was the case of Vonte Skinner. Skinner was convicted in 2008 of shooting a fellow drug dealer outside this New Jersey house. During his trial, prosecutors read thirteen pages of Skinner's violent, graphic rap lyrics. These were lyrics written months and years before the shooting, and were meant to show Skinner's alleged propensity for violence.

• WILLIAM BRANGHAM:

  His conviction was overturned by an appellate court which ruled the extensive readings unfairly prejudiced the jury. The State Supreme Court is weighing whether Skinner deserves a new trial.

• WILLIAM BRANGHAM:

  To critics like Erik Nielson, prosecutors rarely, if ever, should use rap as evidence in court. He says it's an art form that intentionally uses elaborate word-play and exaggeration. While it may often contain graphic violence, Nielson argues that's a reflection of the communities where many young black men live. He says rappers are creating characters, not writing diaries.

• ERIK NIELSON:

  That is the most important distinction that constantly gets missed, is that there is an author and a narrator. We seem to be able to grasp that concept with every other art form that uses the first person narrative. But rappers, who go the extra mile to signal that they are inventing a narrator with their use of a stage name, we still revert back to this idea that they're the same, we conflate the two.

• WILLIAM BRANGHAM:

  You don't buy the argument that this is all fiction. You believe that if they are rapping about a violent, crime-ridden life, that that does tell you something about the artists themselves.

• DAVID LABAHN:

  Absolutely. I would say you can't have it both ways. You cannot say that "I'm rapping about stuff because this is what I live in, this is what I see every day" and then come into court and say "everything that I said in that rap is completely untrue."

• WILLIAM BRANGHAM:

  So if that song is just a story, a made up story, why do you write a story like that? Why are you telling that story?

• ANTWAIN STEWARD:

  That's my lane. I'm in the lane of a hardcore rap. I just want to build up my brand to try and get where I'm going. I just found something that I'm talented at and found a way to make money off of it.

• WILLIAM BRANGHAM:

  Antwain Steward says like it or not, gangsta rap is what sells, and he says the violent, gang-ridden streets where he grew up gave him plenty to rap about.

• ANTWAIN STEWARD:

  It's everyday life where I'm from. It just goes on, like walking down the street you might see a needle that was used for dope laying on the ground, know what I mean? When you grew up in that environment your whole life, it's not hard, it just comes naturally, you feel me.

• ERIK NIELSON:

  I think it becomes even easier to sort of negate rap as art when the rap itself is projecting stereotypes of criminality about, particularly young black men in the United States. So I think prosecutors have a very powerful tactic and one of the things that's most powerful about it is that it allows them to play upon, but unfortunately also perpetuate those enduring stereotypes.

• WILLIAM BRANGHAM:

  What about the argument that the content of some kinds of rap music is so violent, that if you put that in front of a jury, and if the prosecution says "This guy raps like this, and we think he's guilty of x," then the jury will believe anything?

• DAVID LABAHN:

  I don't think that matches reality of what happens in a courtroom. We must get a unanimous jury beyond a reasonable doubt. And playing a rap is not going to convict somebody. If it was then you'd have rap being played every day and we wouldn't need to worry about producing other evidence.

• WILLIAM BRANGHAM:

  Antwain Steward's double murder trial lasted three days. With no mention of his lyrics by the prosecution, the case hung on those two eyewitnesses who identified him four years after the fatal shootings. The jury found steward not guilty of either murder, but guilty on a related weapons charge. He'll be sentenced later this month. In the meantime, Steward says his arrest and the publicity around it has driven up downloads and YouTube views of his songs.