Rap Lyrics as Confessions

Tag Archives: confessions

Rap Lyrics as Confessions

Posted on August 27, 2013 by Jeff Welty

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 The most relevant is the unpublished case of State v. Allen, 2006 WL 2529580 (N.C. Ct.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 Sept. 5, 2006) (unpublished) (“At trial, defendant objected to the introduction of rap song lyrics written by defendant while in custody awaiting trial for [a] murder,” but “[t]he trial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

The Law of Interrogation

Posted on December 6, 2011 by Jeff Welty

Corpus Delicti

Posted on November 21, 2011 by Jessica Smith

According to my teenaged kids, “corpus delicti” sounds like something that will get you in trouble if you write about it on a government-sponsored blog. It is, however, an issue that arises in criminal cases.

The term “corpus delicti” (sometimes spelled corpus delecti) means the body of the crime. Black’s Law Dictionary 310 (5^th ed. 1979); State v. Smith, 362 N.C. 583, 589 (2008). It refers to the substance of the crime, which ordinarily includes two elements: the act and the criminal agency of the act. Black’s at 310. Thus, it has been explained that the corpus delicti of murder includes proof of death and proof that the death resulted from the criminal agency of another. State v. Perdue, 320 N.C. 51, 56 (1987). Evidence of “criminal agency of another” means evidence showing that the victim died not from natural or accidental causes, but by the hand of another. Id. (evidence was sufficient that the infant victim’s injuries were not accidental and that the corpus delicti was established); see also State v. Head, 79 N.C. App. 1, 9-11 (1986) (although the murder victim’s body was not found, the evidence showed that she was dead and that her death resulted from a criminal agency). The concept underpinning the rule grew out of early English cases. Smith, 362 N.C. at 590. In one, a defendant confessed to the murder of a missing man, implicating his mother and brother. All three were executed before the alleged victim was discovered alive. Public outrage over this case and other similar cases spurred creation of the rule.

Under the corpus delicti rule, the State may not rely solely on the extrajudicial confession (or admission) of a defendant to obtain a conviction; rather, the State must produce substantial independent corroborative evidence that supports the facts underlying the confession. State v. Smith, 362 N.C. 583, 588 (2008) (citing State v. Parker, 315 N.C. 222 (1985)). The independent evidence is sometimes referred to as “evidence aliunde.”

What constitutes substantial independent corroborative evidence? Until the North Carolina Supreme Court’s decision in State v. Parker, 315 N.C. 222 (1985), North Carolina law had required that there be corroborative evidence, independent of the defendant’s confession, which tended to prove the commission of the charged crime itself. In Parker, however, the court adopted a new, broader standard providing that the evidence could either prove commission of the crime or corroborate the confession itself, establishing its trustworthiness. The Parker Court explained:

We adopt a rule in non-capital cases that when the State relies upon the defendant’s confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused’s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.

We wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant’s confession. Corroboration of insignificant facts or those unrelated to the commission of the crime will not suffice. We emphasize this point because although we have relaxed our corroboration rule somewhat, we remain advertent to the reason for its existence, that is, to protect against convictions for crimes that have not in fact occurred.

Parker, 315 N.C. at 236. Parker expressly limited its statement of a broader rule to noncapital cases. Id. Thus, it appears that the old rule, requiring independent corroboration of the crime itself applies in capital cases. Also, Parker states that when independent proof of loss or injury is lacking, there must be “strong corroboration of essential facts of circumstances embraced in the defendant’s confession.” Parker, 315 N.C. at 236. In State v. Smith, 362 N.C. 538 (2008), the court applied that language and held that where an alleged child sexual assault victim expressly denied that the offense occurred, it was “imperative” to require strong corroboration of the defendant’s extrajudicial confession. Id. at 593 (going on to find the evidence insufficient).

As with many criminal rules, illustrative cases can facilitate understanding. Here are a few cases on point from the last five years:

Cases in Which the Evidence Was Insufficient.

State v. Smith, 362 N.C. 583 (2008) (in a sexual offense case the court rejected the argument that evidence of opportunity was sufficient to corroborate the confession, instead requiring strong corroboration where the victim denied that the conduct occurred).

Cases in Which the Evidence Was Sufficient.

State v. Sweat, __ N.C. App. __, __ S.E.2d __ (Oct. 18, 2011) (over a dissent, the court held in this sex offense case that the evidence corroborated the defendant’s confession to fellatio; the victim told two people on two occasions that the conduct occurred, the defendant had an opportunity to commit the crime, and he was convicted of related crimes occurring at the same time and against the same victim).
State v. Blue, __ N.C. App. __, 699 S.E.2d 661 (2010) (as to a robbery, aspects of the defendant’s confession were corroborated with physical evidence found at the scene and by the medical examiner’s testimony; as to a rape, the victim’s body was partially nude, an autopsy revealed injury to her vagina, rape kit samples showed spermatozoa, and a forensic analysis showed that the defendant could not be excluded as a contributor of the weaker DNA profile).
State v. Ash, 193 N.C. App. 569, 575 (2008) (the evidence sufficiently supported the defendant’s confession in an armed robbery and felony murder case; evidence as to the weapon was linked to the defendant and after the crime the defendant hid in hotel rooms, which were paid with cash and reserved in his mother’s name).
State v. Shelly, 181 N.C. App. 196 (2007) (testimony that the victim died as a result of multiple gunshot wounds sufficiently corroborated the confession).

Category: Evidence, Procedure, Uncategorized | Tags: confessions, corpus delicti

Promises, Promises

Posted on December 13, 2010 by Jeff Welty

An involuntary confession can’t be used against a defendant at trial, not even to impeach him if he testifies. See, e.g., Mincey v. Arizona, 437 U.S. 385 (1978). Whether a confession is voluntary is determined by examining the totality of the circumstances, see, e.g., Withrow v. Williams, 507 U.S. 680 (1993), and asking whether “the confession [is] the product of an essentially free and unconstrained choice by its maker,” Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (internal quotation marks and citations omitted). Factors that may be relevant to this determination include

whether [the] defendant was in custody, whether he was deceived, whether his Miranda rights were honored, whether he was held incommunicado, the length of the interrogation, whether there were physical threats or shows of violence, whether promises were made to obtain the confession, the familiarity of the declarant with the criminal justice system, and the mental condition of the declarant.

State v. Hyde, 352 N.C. 37 (2000) (internal quotation marks and citations omitted). None of these factors alone is dispositive. Thus, for example, “[a] promise of leniency renders a confession involuntary only if the confession is so connected with the inducement as to be the consequence of it.” State v. Pressley, 266 N.C. 663 (1966). Indeed, although police interrogations routinely contain suggestions that a truthful confession may be viewed favorably by the authorities, relatively few North Carolina cases have reversed criminal convictions as a result of such representations.

That brings us to State v. Bordeaux, a remarkable case decided by the court of appeals last month. The defendant was arrested, read his Miranda rights, and questioned for two hours in connection with a robbery. The videotaped interrogation culminated in a confession, but the trial judge ruled that the confession was coerced. On the state’s interlocutory appeal, the court of appeals affirmed. It found that the officers interrogating the defendant (1) falsely suggested that he was being investigated for a murder as well as the robbery, and (2) indicated that a confession would help him with “the judge,” thereby overbearing his will. The court cited State v. Fuqua, 269 N.C. 223 (1967), in which a confession was declared involuntary because a police officer told a defendant that “if he wanted to talk to me then I would be able to testify that he talked to me and was cooperative,” creating a hope of leniency.

It’s possible to quibble about the details of Bordeaux. For example, after initially suggesting that a confession might cause a judge to view the defendant favorably, one of the officers admitted “I don’t know what the [j]udge will say,” arguably undermining the impact of the inducement. On the other hand, the court of appeals didn’t remark on several striking aspects of the interrogation, such as the officers’ explicit threat to bring additional charges if they determined that the defendant was an “ass____,” or one officer’s statement that “if you want any assistance . . . any chance to live a normal life when this is over,” the defendant should confess.

Overall, though, it is neither the legal reasoning nor the outcome of Bordeaux that I find most noteworthy. It is the critical impact of the fact that the interrogation was videotaped. Absent a videotape, the facts about the interrogation would likely come out through the testimony of the officers at a suppression hearing. I have no reason to doubt that the officers would be anything other than completely honest, but a detached, after-the-fact summary is inherently incapable of capturing the feeling of a police interrogation. Imagine this case, presented as follows at a hearing:

Q: Did you make any threats or promises to the defendant?

A. No. I told him if he was honest, a judge might view that favorably, but that I didn’t know for sure what a judge would do.

Q. Did you offer to help him in any way if he confessed?

A. Only that I would testify honestly that he surrendered voluntarily to us and admitted what he did.

Q. Did you make any misrepresentations to him during questioning?

A. At one point, we told him that his answers to our questions tied him to some people we were investigating for murder. But we never told him we would charge him with murder. Actually, the whole point was to get him away from some lies he was telling us and to encourage him to tell the truth.

On those facts, I suspect that the trial judge would have denied the motion to suppress, and that ruling would have been affirmed on appeal. I’ll be interested to see whether this ruling is a harbinger of things to come as more and more interrogations are recorded.

Category: Search and Seizure, Uncategorized | Tags: bordeaux, confessions, interrogation, voluntariness

Kansas v. Ventris and the Sixth Amendment

Posted on April 30, 2009 by Jeff Welty

The Supreme Court’s latest criminal law decision is Kansas v. Ventris, available here. The basic holding is that a statement obtained in violation of a defendant’s Sixth Amendment right to counsel may be admitted for impeachment purposes, so long as the statement was voluntary.

In brief, the defendant in Ventris was charged with murder and other offenses, and the police had a jailhouse informant ask him about the crimes. The defendant confessed, but because the informant deliberately elicited information, rather than serving as a mere listening post, the defendant’s statements were obtained in violation of the Sixth Amendment, and the state did not introduce them in its case in chief. The defendant took the stand and testified that someone else committed the crimes, at which point, the state was allowed to introduce the defendant’s statements for impeachment. Interestingly, the defendant was actually acquitted of the murder, but was convicted of other charges. Showing what some might see as a certain chutzpah, he appealed the lesser convictions, arguing that the state should not have been able to impeach him with his statements to the informant.

The Kansas Supreme Court agreed, but the United States Supreme Court reversed. The majority concluded that barring the use of such statements for impeachment would not add much deterrent value to the sanction of excluding such statements from the prosecution’s case in chief, and any incremental increase in deterrence was outweighed by the “need to prevent perjury and to assure the integrity of the trial process.”

The Court had previously ruled that statements obtained in violation of Miranda may be used for impeachment. Harris v. New York, 401 U.S. 222 (1971). And the Court foreshadowed the Ventris holding in Michigan v. Harvey, 494 U.S. 344 (1990), which itself allowed a statement obtained in violation of the Sixth Amendment to be used for impeachment — though in that case, Miranda warnings were given after the police wrongly initiated interrogation and the defendant explicitly waived counsel. In light of Harris and Harvey, the Ventris decision is not surprising, but it settles an open question, one that had become more important in light of the Court’s recent expansion of Sixth Amendment rights in Rothgery v. Gillespie County, 554 U.S. __ (2008) (holding that a defendant’s Sixth Amendment rights attach at his initial appearance before a magistrate rather than at his first appearance before a judge). With the Sixth Amendment right to counsel attaching earlier under Rothgery, there will likely be more situations in which violations of that right are alleged, and thus more situations in which courts will need to consider the use of statements obtained in violation of that right. Ventris, in that respect, is timely.

Category: Search and Seizure, Uncategorized | Tags: confessions, exclusionary rule, impeachment, right to counsel, sixth amendment, suppression

Confessions and Custody

Posted on April 15, 2009 by Jeff Welty

The Court of Appeals decided two Miranda cases last week: In re J.D.B, available here, and State v. Rooks, available here. The former is a very close juvenile case that produced three separate opinions. I’ll save my thoughts about it for after we hear from the Supreme Court of North Carolina. But there’s an argument in Rooks that is worth discussing now.

The facts of Rooks are as follows. Mr. Rooks’s wife called the police after she saw Mr. Rooks sexually abusing their daughter. Detective Kivett went to the Rooks’ residence where he found Mr. Rooks talking to a relative. Detective Kivett asked introduced himself to Mr. Rooks and asked him to come to his patrol car. Mr. Rooks agreed. He sat in the front seat of the patrol car. He wasn’t handcuffed, and the doors were unlocked. Deputy Kivett told him that he wasn’t under arrest.

Almost immediately, Mr. Rooks admitted molesting his daughter. Over the course of the next hour, Deputy Kivett questioned Mr. Rooks, and Mr. Rooks made incriminating statements. Eventually, he signed a written confession. At no time did Deputy Kivett read Mr. Rooks his Miranda rights.

Mr. Rooks was charged with a number of sex-related offenses. He moved to suppress both his oral statements and the written confession on the grounds that they were the product of custodial interrogation conducted without Miranda warnings. A superior court judge largely agreed, and ordered most of the oral statements suppressed, together with the written confession.

The state appealed, and the Court of Appeals reversed. For the most part, the custody analysis proceeded along familiar lines: the court acknowledged, as the superior court found, that several officers were at the Rooks’ home and that Mr. Rooks hung his head and appeared to believe that he was in trouble. But it noted that Mr. Rooks’s subjective belief about whether he was free to leave was irrelevant, thereby discounting the head-hanging, and it ruled that the indicia of freedom, such as the lack of handcuffs and Detective Kivett’s explicit statement that Mr. Rooks was not under arrest, outweighed the fact that several officers were on the scene. Thus, the court found that Mr. Rooks was not in custody, and that Miranda warnings were not required.

None of that analysis is noteworthy, and to this point, Rooks isn’t a very close case. But the defendant made an interesting argument on appeal. He claimed that even if he wasn’t in custody when he first entered the cruiser, he was in custody once he admitted molesting his daughter. In other words, he asserted that no reasonable person would believe that he would be free to leave after admitting to a serious crime. Thus, he argued, the interrogation turned custodial at that point, and any statements after that juncture were obtained in violation of Miranda.

As authority, the defendant cited State v. Buchanan, 365 N.C. 264 (2002). In Buchanan, an officer asked the defendant to come to the police station to discuss a double homicide. The defendant agreed, and drove himself to the station. He wasn’t handcuffed; was told that he was free to leave; and was allowed to use the restroom unsupervised. He wasn’t given the Miranda warnings. He made some incriminating statements, then asked to use the restroom again. This time, two officers escorted him to the restroom. Afterwards, the defendant made more incriminating statements and signed a written confession. The trial judge found that the defendant was in custody as of the second restroom trip, and suppressed the defendant’s subsequent statements and his written confession. The Supreme Court of North Carolina affirmed.

In Rooks, the defendant argued that the defendant in Buchanan was in custody after he made his initial incriminating statements, because no reasonable person would feel free to leave after admitting to a double murder. But the Rooks court disagreed, finding that the key to Buchanan wasn’t the incriminating statements themselves, but rather the increased level of security that they prompted: after the statements, the defendant was escorted to the bathroom, when he had previously been allowed to go alone. According to the Rooks court, the increased level of security was what made the Buchanan situation custodial, and since Deputy Kivett didn’t increase the level of security after Mr. Rooks made his admissions, their interaction , unlike the one in Buchanan, never became custodial.

That seems like a reasonable interpretation of Buchanan. But it also seems like the right result for another reason that the Rooks court didn’t mention. The idea that a suspect’s admissions can turn a non-custodial situation into a custodial one would create serious problems in administration. Officers aren’t likely to be able to identify the precise moment at which a suspect’s admissions have gone “too far,” such that Miranda warnings are necessary. Requiring an officer to determine whether the suspect’s admissions (or retractions) have made the interaction custodial (or non-custodial) would impose the sort of non-bright-line responsibility on officers that the United States Supreme Court has long opposed. Thus, although the Rooks court didn’t put it quite this way, it probably follows that a single, uninterrupted interview is either custodial or non-custodial as a whole. Only when the interview is interrupted by a change in circumstances — as it was in Buchanan when additional security measures were taken — can an interview move from non-custodial to custodial.

As I just said, the Rooks court didn’t put things quite that way, and I suspect that some of you read Rooks differently and/or disagree with the practical concerns I expressed. If so, please post a comment — it’s an interesting issue, ripe for discussion.

Category: Search and Seizure, Uncategorized | Tags: confessions, custody, interrogations, miranda

Recording Interrogations

Posted on February 16, 2009 by Jeff Welty

A couple of sessions ago, the General Assembly enacted G.S. 15A-211, which requires that custodial interrogations in homicide cases be recorded. The idea is to “eliminate disputes about interrogations,” id., and particularly, to prevent and record any coercion by law enforcement that might result in a false confession, and to prevent false claims of coercion. It was probably inspired in part by some high-profile false confession cases around the country, including the Central Park jogger case, which you can read about here. Although some experts believe that false confessions are particularly common in homicide cases, because the pressure on both the police and the suspect is so high in such cases, the Central Park jogger case wasn’t a homicide. That raises the question, if recording is a good idea for homicides, isn’t it a good idea for other crimes, too?

Apparently at least some members of the General Assembly think that the answer is yes, because they’ve just introduced a bill that would expand the recordation requirement to include all B1, B2, and C felonies. See HB 162. Also pending before the General Assembly is proposed legislation that would require recordings in homicide cases to be audiovisual, where currently, they may be “audio” or “visual.” G.S. 15A-211(c)(1); see HB 33. Collectively, these two bills suggest that current G.S. 15A-211 is just the tip of the wedge, and that we may see continued expansion of the recordation requirement over time.

The purpose of this blog, like the purpose of the School of Government generally, isn’t to take sides on controversial and unsettled issues. Rather, it’s to provide information and context (and to provide a forum for discussion, but more on that in a minute), and there are at least two pieces of context worth thinking about in connection with the recording of interrogations. First, a number of other states require at least some interrogations to be recorded. Whether by statute or court decision, about a dozen other states have some such requirement, though the scope of the requirement varies widely from jurisdiction to jurisdiction. Second, there is not a great deal of empirical information available about false confessions, and the information that is available is not consistent. The Innocence Project says here that “some form of a false confession” has been present in about 25% of the DNA exoneration cases they’ve handled, while conservative scholar and former federal judge Paul Cassell argues here that the frequency of false confessions is overstated, and that such confessions are concentrated among people with mental disabilities.

I’m especially curious to have some feedback from people who have had some experience with the current recordation law. Is it being followed? Are suspects less likely to talk because of it? How is it playing out in court? How the current law is working should be an important piece of the discussion about the new proposed legislation, but I’m not aware of any attempt to collect that information systematically. Not that asking for comments on this blog is “systematic,” either, but at least it’s a start!

Category: Search and Seizure, Uncategorized | Tags: confessions, interrogations, recordation

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