Using Rhymes to Prove Crimes: Obtaining Lyrics and Videos to Aid Prosecution
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Using Rhymes to Prove Crimes: Obtaining Lyrics and Videos to Aid Prosecution

Using Rhymes to Prove Crimes: Obtaining Lyrics and Videos to Aid Prosecution

By: L. Kurt Wildman*

…Whatcha do getcha head ready
Instead of getting physically sweaty
When I get mad, I put it down on a pad
Give ya something that ya never had
Controlling, fear of high rolling
God bless your soul and keep living
Never allowed, kicking it loud
Dropping a bomb, brain game, intellectual Vietnam
Move as a team, never move alone
But welcome to the Terrordome[1]

A pen and a pad: the classic tools for the lyricist.

Whether it’s Chuck D or LL Cool J[2] giving voice during the Golden Age of hip-hop to the foundational act of writing rhymes, or current day social networking sites guiding and encouraging youthful poets and other aspiring lyricists to brainstorm and write down their ideas[3], the rapper’s creation is commonly made manifest on paper.

But rapping is obviously also about performance.

Rhymes committed to memory from countless recitations are uttered in the singular style and tone of the performer. In an age of digital and mobile audio-visual recording and publishing, both the practiced and freestyle, “off the top of the dome” performances make their way to social media and sites designed for sharing music and/or musical performances.

Hip-hop performances connect the creator with others who participate in hip-hop culture with their listening ears. Consumers of lyrical content may simply enjoy the way an MC puts lines together or how a rhyme fits with the music and/or, arguably, be making a statement about their mindset by their choices.

Whether the lyrical content is professional or amateur, general or specific, frivolous or political, biographical or fictional, it is clear that hip-hop content in the 21st century is well documented.

This fact is not lost on police and prosecutors who continue to pursue and adduce as evidence lyrical content and recorded performances as they attempt to prove, among other cases, homicides, criminal organization offences, and drug trafficking conspiracies.

But how and from where are police actually acquiring the rap lyrics and performances that they are now quite comfortable in presenting to the Crown and, ultimately, the court for consideration?

The sources for this evidence are a mix of the traditional and the modern. While acquisition can involve some hurdles common to evidence gathering generally, it can often be effectively barrier-free.

Consider some possibilities:

A. The defendant himself when personally searched upon arrest

While predicated on a lawful arrest on honestly believed grounds that are objectively reasonable, a pocket search can yield rap lyric evidence on a sheet of paper.[4] A search of a duffle bag being held or a vehicle being driven at the time of arrest, for purposes connected to the arrest, can unearth the same kind of evidence.[5]

B. A properly authorized residential search

A search warrant permitting the search of an apartment for drugs, for example, might lead to a lawful seizure of handwritten rap lyrics found inside the residence.[6]

C. Locations controlled by others known to the accused in which the accused has a limited or non-existent right to privacy

The defendant’s motor vehicle may not have the notepad with the damning lyrics but his girlfriend’s car, for example, just might.[7]

D. The accused’s jail cell after arrest while awaiting trial

With essentially no privacy rights while in the local detention centre, a random or other cell search could result in a correctional officer seizing an inmate’s rhyme sheet and handing it over to the prosecution.[8]

E. Items or locations over which the accused claims control or privacy when searched with his consent

The police will be acting on solid footing and well positioned to obtain admissible rhyme evidence if a suspect grants unforced, properly informed consent to search a location or item that has his documented lyrical content.[9]

F. Smart phones or other computer devices where digital content is stored

Video clips that amount to a “rap video” or are styled after one, and audio rap tracks done a cappella or as complete songs can form part of the evidentiary package presented at trial if police take proper guidance from the developing search and seizure case law related to computers and smart phones.[10]

G. The accused person’s own testimony at trial

A defendant testifying in his defence may reference the rap music he was listening to during an event with some connection to the charges he is facing. Of course, by connecting rap music and lyrics to his criminal conduct in a related event he could also be cross-examined by antagonistic parties (i.e. a co-defendant trying to deflect guilt) whose aim is to show how rap lyrics might influence the defendant to commit violent offences, including murder.[11]

H. Social media sites, especially YouTube

Hip-hop creations posted online and available for unrestricted public consumption give law enforcement easy access to rap performances documented as digital videos. “Gang” or criminal organization-related prosecutions have been triggered and aided by the existence of rap videos on YouTube displaying conduct and voicing words that Crown prosecutors have successfully argued are relevant to, among other things, identifying the perpetrators of crime, establishing their intent, and proving the existence and aims of urban crime crews.[12]

Plus, because the people creating the content may believe they have a strategic interest in publicly posting the content or may be careless about the potential implications or future uses of the material, law enforcement will not need a search warrant or a wiretap to get material it can use against the creators or their associates.

On “Ya Playin’ Yaself”, Jeru the Damaja was clearly on to something when described a rapper-hustler phenomenon twenty years ago in the first verse:

Now, I don’t push a Lex
Others had their turn to flex, Jeru is up next
All these so called players up in the rap game
Got brothers on the corner selling cooked cocaine
It used to be LaToya and jim hats
But now it’s Uzis, Macs and G-packs of cracks
Everybody’s psycho or some type of good fellow
But me I keep it real that’s all swine like jello
Don’t drink Cristal, and I can’t stand Mo
Never received currency for moving a kilo
Or an ounce, make em bounce to this fake-pimp-free flow
I never knew hustlers confessed in stereo
Or on video get caught you’ll know who turned state’s
Evidence, murder weapon, confession and fingerprints
Mama always said watch what comes out your mouth
Tight case for the DA from here to down South
Knowledge wisdom understanding like King Solomon’s wealth
You’re a player but only because you be playing yourself [emphasis added][13]

Two decades later, police seem primed to look for that stereo confession, or at least some confirmatory circumstantial evidence manifesting as beats and rhymes, on a smart phone or, at their leisure, on YouTube.

Once they have that evidence, it can form part of a package presented to a justice to obtain a search warrant or to a trial court in an attempt to secure a conviction. If the evidence is compelling, then the risk of conviction means that “rappers are in danger”.[14]

_______________________________________________

[1] Public Enemy, “Welcome to the Terrordome”, verse 4, Produced by Bomb Squad, Chuck D., Eric Sadler & Hank Shocklee (1990), Album: Fear of A Black Planet, available at: http://genius.com/Public-enemy-welcome-to-the-terrordome-lyrics.

[2] LL Cool J, “I’m Bad”, verse 3, Produced by L.A. Posse, Album: Bigger and Deffer, available at: http://genius.com/Ll-cool-j-im-bad-lyrics:

I eliminate punks, cut ’em up in chunks
You were souped, you heard me, and your ego shrunk
I’m devastating I’m so good it’s a shame
Cause I eat rappers like a cannibal they call me insane
I’m as strong as a bull of course you know why I pull
I enjoy what I’m doing plus I’m paid in full
Not Buckaroo Banzai, but bustin’ out as I
Say the kind of rhymes that make MC’s with that I’d die
Never retire or put my mic on the shelf
The baddest rapper in the history of rap itself
Not bitter or mad, just provin’ I’m bad
You want a hit? Give me a hour plus a pen and a pad!
MC’s retreat, cause they know I can beat ’em
And eat ’em in a battle and the ref won’t cheat ’em
I’m the baddest! Takin’ out all rookies
So forget Oreos, eat Cool J cookies, I’m bad!

[3] 7 Tips for Writing a Rap, Power Poetry: Write Your Own Life Story, available at: http://www.powerpoetry.org/actions/7-tips-writing-rap

[4] U.S. v. Wilson, 493 F.Supp.2d 484 (2006) at 487, available at: http://www.leagle.com/decision/2006977493FSupp2d484_1932/U.S.%20v.%20WILSON.

[5] R. v. Caslake, 1998 CanLII 838 (SCC); U.S. v. Foster, 939 F.2d 445 (7th Cir. 1991) at 449 [“Foster”], available at: http://www.leagle.com/decision/19911384939F2d445_11320/U.S.%20v.%20FOSTER.

[6] U.S. v. Stuckey, 253 F. App’x 468, 482 (6th Cir. 2007), available at:

http://cases.justia.com/federal/appellate-courts/ca6/05-1039/07a0738n-06-2011-02-25.pdf?ts=1411014104; R. v. McCullough, 2016 ONSC 1014 (CanLII) at paras. 13-15, available at: http://canlii.ca/t/gpnrg.

[7] State v. Skinner, 2014 N.J. Lexis 803 (N.J. Aug. 4, 2014), available at:

http://cases.justia.com/new-jersey/supreme-court/2014-a-57-12.pdf?ts=1407539271.

[8] R. v. Deeb, 2013 ONSC 4852 (CanLII) at paras. 110-112.

[9] Foster, supra.

[10] R. v. Ranglin, 2016 ONSC 3972 (CanLII) at paras. 10, 83 and 138-156; R. v. Fearon, 2014 SCC 77 (CanLII); R. v. Cole, 2012 SCC 53 (CanLII), available at: http://canlii.ca/t/ft969.

[11] R. v. Jacobson, 2004 CanLII 30298 (ON SC) at paras. 44-53, available at: .

[12] U.S. v. Gamory, 635 F. 3d 480 (11th Cir. 2011) at 488, available at: http://www.leagle.com/decision/In%20FCO%2020110311064/U.S.%20v.%20GAMORY; R. v. Williams, 2013 ONSC 3100 (CanLII) at para. 5; R. v. Skeete, 2012 ONSC 1643 (CanLII); R. v. Evans, 2013 ONSC 2447 (CanLII); R. v. Alvarez, 2009 CanLII 48828 (ON SC) and R. v. Lucas, 2014 ONCA 561 re: the “Rapsheet DVD” which is apparently available on YouTube: https://www.youtube.com/watch?v=eEOKhgGkrog.

[13] Jeru the Damaja, “Ya Playin’ Yaself”, Verse 1, Produced by DJ Premier, Album: Wrath of the Math (1996), available at: http://genius.com/Jeru-the-damaja-ya-playin-yaself-lyrics.

[14] KRS-One, “Rappaz R. N. Dainja”, Hook, Produced by DJ Premier, Album: KRS-One (1995), available at http://genius.com/Krs-one-rappaz-r-n-dainja-lyrics

https://cdn.shopify.com/s/files/1/0993/9646/products/CNT1002BK_1024x1024.jpeg?v=1466474674Po

 

*B.Sc., 1993, University of Toronto, RPN, 1994, George Brown College, LL.B., 1997, Osgoode Hall Law School. Kurt Wildman is a criminal defence lawyer at Wildman, Barrister-at-Law and a writer. He defends the full range of criminal offences. See the firm website: www.wildmanatlaw.com and his blog: http://wildman720.com

 

MaxFM

September 3rd, 2016

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