Bob Marley once sang, "I shot the sheriff, but I did not shoot the deputy." Yet, he never went to jail for shooting that sheriff (possibly because he did not shoot the deputy). Instead, this line became known as the starting phrase of one of his most popular songs. While it may make sense to some why Marley's lyrics were art and not a confession to shooting his hometown sheriff, in some states, an artist's lyrics can be used as evidence to prosecute. More specifically, states have differed on the admissibility of a rap artist's lyrics as evidence for prosecution. These differences range from not being able to use the rap lyrics at all, the ability to use the rap lyrics in certain cases, to the ability to use the rap lyrics in any instance. Further, as the issue has grown, prosecutors face varying challenges from defendants on evidentiary grounds, and courts vary on how they interpret the Federal Rules of Evidence in reference to these challenges.
So, why the stark difference from state to state? Some states express concerns with tampering with an individual's First Amendment7 rights by using rap lyrics to prosecute. After all, the First Amendment literally says, "Congress shall make no law . .. abridging the freedom of speech." Critics argue that using rap lyrics to prosecute a defendant abridges the freedom of speech by virtually stopping artists from writing lyrics (or certain lyrics). The basic principal is that if someone knows their rap song or lyrics can be used against them at a later date, they will be less likely to express themselves in that way. Allowing courts to use rap lyrics to prosecute with no interference from Congress on these constitutional grounds stifles and abridges the freedom of speech
"Lyrics for Lockups: Using Rap Lyrics to Prosecute in America,"
Mercer Law Review: Vol. 69:
3, Article 14.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol69/iss3/14