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In Canada, prosecutors are using suspects' own rap lyrics to win convictions

Before he was convicted of first-degree murder, Lamar Skeete recorded a four-part rap song inside Toronto's notorious Don Jail. It spoke of the squalid conditions, the drug use, and the violence inside the aging jailhouse.

But it was a line in the second segment of the song that was of particular interest to his prosecutors

People like him, he rapped, “don’t crack to the coppers.”

Skeete stood accused of fatally shooting a man named Kenneth Mark in 2009 outside a pizza and wing shop in Toronto’s west end. The two had had a tangled history and prosecutors had concluded that this was a crime of revenge because Mark had identified Skeete and his brother in an earlier attack.

"This is the code of silence. And this is how it's enforced," said assistant Crown Attorney Karen Simone, recalling the prosecution’s argument. 

To bolster that point, prosecutors turned to Skeete’s rap lyrics: you don’t talk to the police.

Though Skeete’s attorney argued that the rap lyrics were just as likely about the code of silence inside the jailhouse where he was housed, jurors convicted him of first-degree murder. He’s now serving a life sentence.

Skeete's case is one of a growing number in Canada in which rap lyrics are used to win cases. David Tanovich, a University of Windsor law professor, turned up 16 cases of rap music used as evidence of guilt and five where it was used as a defense.  Tanovich, who reported his findings in an academic paper, said  he found only one case involving music lyrics from a genre other than rap.   

Courts in the U.S. have been cautious about allowing rap lyrics as evidence. In one New Jersey case, an appellate division of the state court overturned the attempted murder conviction of Vonte Skinner after concluding that the admission of his violent rap lyrics had unfairly tipped the scales against him. The state's Supreme Court affirmed that decision. 

In Canada, though,  the admissibility of rap lyrics continues to be a point of contention.

"Courts must … recognize the very real likelihood that rap lyrics will trigger racialized stereotypes when assessing the prejudicial effect of the evidence," Tanovich writes.

Putting a rapper's tales of violence and drug-dealing before a jury also assumes the art form is strictly autobiographical, critics of the practice say. 

"When we select juries, we're entitled to ask a question that screens the jury for racial bias," defense lawyer Hilary Dudding said. "The reason that that is permitted … is because of a recognition of the widespread belief that black people are bound up in criminality." 

One of Dudding’s clients, Orville Campbell, was nearly confronted with his own rap lyrics when he went to trial in a 2012 Toronto murder case. Prosecutors had sought through a pretrial motion to admit a video in which Campbell raps, "One shot, leave your brains on your Nikes," and, "One shot, make you flip like gymnastics."

But Justice Ian Nordheimer, the same judge who allowed Skeete's lyrics to be used as evidence, this time drew a line, noting the risk in taking a rapper's words literally. Campbell's lyrics about a victim twisting or turning as he's shot, or someone wearing Nikes, were far from unique. Even as a collection, the statements were useless, he ruled. 

"Simply put, zero plus zero plus zero still equals zero," Nordheimer wrote. 

Campbell was convicted just the same.

Charis Kubrin, a criminology professor at UC Irvine, is the coauthor of a recent paper that found subjects who read lyrics they believed to be from rap music saw the words more negatively than subjects who believed the same lyrics were from a country song. 

"Whether the guy is guilty or not, I'm not interested in," said Kubrin. "You have to use traditional forms of evidence to prove that … in my opinion. Artistic expression should not be a part of that, because artistic expression, by definition, is fictional." 

Simone said the line between art and truth was clear in the Skeete case. Authorities had evidence about Mark's communication with police, and physical evidence tied Skeete to the crime. The lyrics simply underscored Skeete's belief in a code of silence — he even wrote out his lyrics to help the jury understand some indecipherable sections, according to Simone. 

But in the murder case against James McCullough, Justice Renee Pomerance challenged an argument that has become popular among those who oppose the use of rap lyrics at trial: No one would argue that Edgar Allan Poe buried someone under his floorboards just because he described such events in "The Tell-Tale Heart." No one would believe that Bob Marley actually shot a sheriff. 

"But if Mr. Poe was charged with burying someone under his floorboards, and had earlier expressed an intention to do so, his creative writing might be very probative of issues at his trial," Pomerance wrote, clearing the way for McCullough’s rap lyrics to be introduced as evidence. 

Defense lawyers expect rap lyrics to continue arising in court. Marcus Bornfreund, a Toronto defense attorney, said rap videos are often used to prosecute suspects accused of being in a criminal organization. He recalled recently asking a client, who faced charges of involvement in a gang, to take down an online video for fear it would be used as evidence against him.

Still, Bornfreund believes rap lyrics are "fair game" for prosecutors.

"If you're going to purport to be a gang member or a trafficker, what do you think's going to happen?"

Davis is a special correspondent.

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