In August, the North Carolina Supreme Court weighed in on drug identification once again in State v. Osborne, ___ N.C. ___ (August 16, 2019). I wrote about the earlier Court of Appeals decision in the case, here. The new Osborne decision clarifies the application of drug identification rules as well as sufficiency of the evidence in this context. Continue reading
Tag Archives: admissions
Evidence Rule 801(d) sets out a hearsay exception for “Admissions by a Party-Opponent.” If you’re not clear on that rule, read on.
The rule says that a statement is admissible under this exception if it is “offered against a party” and is
(A) his or her own statement, in an individual or representative capacity;
(B) a statement that the party has manifested an adoption of or a belief in its truth;
(C) a statement by someone authorized by the party to make it;
(D) a statement by the party’s agent or servant about a matter within the scope of agency or employment, made during the existence of the relationship; or
(E) a statement by the party’s co-conspirator during and in furtherance of the conspiracy.
N.C. R. Evid. 801(d). The exception is understood to apply to admissions, defined as “statement[s] of pertinent facts which, in light of other evidence, [are] incriminating.” State v. Al-Bayyinah, 359 N.C. 741, 748 (2005) (quotation omitted). In the criminal context, the Rule 801(d)(C) and (D) exceptions rarely apply and aren’t addressed here.
Defendant’s Own Statement. In criminal cases, Rule 801(d) typically arises with regard to the first category of statements—when the defendant himself or herself made the statement at issue. See, e.g., State v. Al-Bayyinah, 359 N.C. 741, 747-48 (2005); State v. Lambert, 341 N.C. 36, 49-50 (1995); State v. Graham, __ N.C. App. __, 733 S.E.2d 100, 106 (2012); State v. Smith, 157 N.C. App. 493, 496 (2003). However, this aspect of the rule is self-explanatory and requires no extended discussion.
Adopted Admissions. Rule 801(d)(B) provides that a hearsay statement is admissible if it is offered against a party and is a statement that he or she has manifested an adoption of or a belief in its truth. This is sometimes referred to as the “adoptive admission” rule. As a general matter, adoptive admissions fall into two categories:
(1) those adopted through an affirmative act or statement and
(2) those inferred from silence or a failure to respond in circumstances that call for a response.
State v. Weaver, 160 N.C. App. 61, 65 (2003). However, an adoptive admission “may be manifested in any appropriate manner.” State v. Marecek, 152 N.C. App. 479, 502-04 (2002) (quotation omitted) (the defendant’s failure to deny that he killed the victim in the face of another’s statements to that effect and his comments that the evidence could not be found because he burned the body and that he was too smart to be caught constituted an implied admission).
An example of the first category of adoption—through affirmative act or statement—occurred in State v. Thompson, 332 N.C. 204 (1992). In that murder case, Sanchez, a hit man hired by the defendant called the defendant asking for his money. Sanchez stated, in part, “You told me, me go to North Carolina kill a Raymond, I kill him, now I need . . . my money for me leave.” Sanchez continued, asking the defendant whether he had his money “for killing Raymond.” The defendant responded: “Yeah.” The North Carolina Supreme Court found that the conversation constituted an admission by the defendant. Id. at 217-18.
Sometimes a party will argue that a person’s silence constitutes an implied admission. The cases hold that
if the statement is made in a person’s presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement were untrue and it is shown that he was in a position to hear and understand what was said and had the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission.
State v. Williams, 333 N.C. 719, 725-26 (1993) (adopted admission; the defendant was silent in the face of accomplice’s statements that “both of them shot both men” and “one shot one and one shot the other”) (quotation omitted).
Co-Conspirator’s Statement. Finally, Rule 801(d)(E) provides that a statement is admissible as an exception to the hearsay rule if it is offered against a party and is “a statement by a coconspirator of such party during the course and in furtherance of the conspiracy.” In order for the statements or acts of a co-conspirator to be admissible, there must be a prima facie showing that
- a conspiracy existed,
- the acts or declarations were made by a party to the conspiracy and in pursuance of its objectives, and
- the statement was made while the conspiracy was active, that is, after it was formed and before it ended.
See, e.g., State v. Williams, 345 N.C. 137, 141 (1996) (State made the required showing).
In order to prove a conspiracy, the State must show that the defendant entered into an agreement with at least one other person to commit an unlawful act with intent that the agreement be carried out. Jessica Smith, North Carolina Crimes: A Guidebook on the Elements of Crime 72 (7th ed. 2012). The State must establish a prima facie case that a conspiracy existed independently of the statement sought to be admitted. See, e.g., State v. Valentine, 357 N.C. 512, 521-23 (2003) (State made showing). However, in establishing the prima facie case, the State is granted wide latitude and the evidence is viewed in a light most favorable to the State. See, e.g., Valentine, 357 N.C. at 521; Williams, 345 N.C. at 142.
Statements made prior to or subsequent to the conspiracy are not admissible under this exception. Compare State v. Stephens, 175 N.C. App. 328, 334 (2006) (statements made prior to the conspiracy were inadmissible), and State v. Gary, 78 N.C. App. 29, 36 (1985) (trial court erred by admitting statements made after the conspiracy ended), with State v. Collins, 81 N.C. App. 346, 351-52 (1986) (trial court did not err by finding that statements were made during the conspiracy). It is generally understood that a conspiracy ends when the co-conspirators either achieve or fail in obtaining their primary objective.
When may rap lyrics written by a defendant be admitted as evidence of guilt? That question has been in the news quite a bit lately as a result of a decision by the Nevada Supreme Court. (For example, see this ABC News story, or this Washington Post piece.) There’s also some North Carolina authority on point, so I thought the topic was worth a post.
The Nevada ruling. The Nevada case is Holmes v. State, __ P.3d __, 2013 WL 4477058 (Nev. Aug. 22, 2013). The defendant and his accomplices lured a drug dealer to a recording studio for the purpose of robbing him. The defendant, who was wearing a ski mask, attacked the victim, beat him, turned his pockets inside out, ripped off his necklace, and shot and killed him. The defendant was eventually arrested and charged with murder. While in jail, he wrote a number of rap songs, one of which was titled Drug Deala. It included the following lyrics: “I catching slipping at the club and jack you for your necklace. . . . Man I’m parking lot jacking, running through your pockets with uh ski mask on straight laughing.”
The state sought to introduce the lyrics, and the trial court admitted the evidence, though with a limiting instruction that the lyrics could be viewed as “confessions, admissions, or neither,” and shouldn’t be used to conclude that the defendant was a bad person with a propensity to commit crimes. The defendant was convicted and appealed, and a divided state supreme court affirmed. The majority acknowledged that rap music may often contain violent storylines and exaggerations, but found that the lyrics in question were relevant and survived Rule 403 balancing because the “details . . . mirror the crime charged.” The dissenting justice argued that the lyrics were “not clearly an admission rather than artistic expression, and they are not sufficiently specific as to be relevant to the charged crimes.”
North Carolina law. There are a couple of North Carolina cases in this area. The most relevant is the unpublished case of State v. Allen, 2006 WL 2529580 (N.C. Ct. App. Sept. 5, 2006) (unpublished) (“At trial, defendant objected to the introduction of rap song lyrics written by defendant while in custody awaiting trial for [a] murder,” but “[t]he trial court found the lyrics sufficiently similar to the facts and circumstances surrounding the murder” to be admissible over Rule 401 and Rule 403 objections; the court of appeals affirmed based on “similarities between the lyrics and the facts of the case”). Marginally relevant is State v. Bryant, 196 N.C. App. 154 (2009) (police seized a notebook from a murder suspect that contained “rap lyrics defendant had written about the shootings”; the lyrics were subsequently admitted as evidence; the issue on appeal concerns whether the seizure was proper; the court rules that it was and therefore, “[t]he trial court properly allowed the notebook, and [the lyrics] into evidence”). Generally, it appears that the touchstone of admissibility is the degree of similarity between the lyrics and the facts of the charged offense.
Other authorities. For a federal case in the same general vein, see United States v. Stuckey, 253 Fed. App’x 468 (6th Cir. 2007) (“Stuckey’s lyrics concerned killing government witnesses and specifically referred to shooting snitches, wrapping them in blankets, and dumping their bodies in the street – precisely what the Government accused Stuckey of doing [to the victim] in this case”; the lyrics were therefore relevant and admissible).
This topic has also been explored in a couple of law review articles. See, e.g., Andrea Dennis, Poetic (In) Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007) (criticizing the frequent admission of lyrics against defendants and emphasizing “the negative impact this . . . will have on the production and quality of art when individuals must worry that their artistic sensibilities and creative expressions might later be used against them in a criminal prosecution”); Jason E. Powell, Note, R.A.P.: Rule Against Perps (Who Write Rhymes), 41 Rutgers L.J. 479 (2009) (collecting cases and arguing that, despite the weight of authority to the contrary, “rap lyric should not be permitted in the courtroom except, perhaps, on rare occasions”).
Final note. There are a lot more cases about rap lyrics than other kinds of lyrics, but the legal principles set forth above would presumably apply equally to other musical genres. For example, if any of the Dixie Chicks were suspected of involvement in a domestic violence related homicide, Goodbye Earl (lyrics here) might be an important piece of evidence for the prosecution.
Category: Evidence, Uncategorized | Tags: admissions, confessions, holmes, lyrics, rap, relevancy, rule 401, rule 403
