The Court of Appeals Addresses When Rap Lyrics are Evidence of Crime in Montague v. State

By John Grimm

Two weeks ago, the Court of Appeals decided Montague v. State, which presented the question of whether rap lyrics that allegedly bore a resemblance to the facts of a murder could be admitted as substantive evidence against the defendant. The Court held that when lyrics bear a sufficient nexus to the facts of the case, the risk of unfair prejudice does not outweigh their probative value, and they can be admitted as evidence of the defendant’s guilt. While on some levels the Court’s decision reflects a pretty standard application of the abuse-of-discretion standard and basic principles of relevancy, Judge Watts’ dissent points out some significant flaws in the majority’s holding.

The defendant in Montague was convicted of murdering George Forrester un a drug deal gone bad. In January, 2017, Forrester tried to buy cocaine with a counterfeit $100 bill. When the drug dealer realized what had happened, he chased Forrester and shot him in the back. Forester died on the scene.

A few weeks before his trial, the defendant made a jailhouse phone call in which he performed a rap that someone on the other end recorded and posted to Instagram. The State contended—and ultimately, the majority of the Court of Appeals agreed—that the lyrics bore a significant similarity to the facts of Forrester’s murder. Since the nexus between the rap and the crime is so central to the Court’s decision, let’s take a look before going any farther:

Listen, I said YSK / I ain’t never scared / I always let it spray / And, if a n—a ever play / Treat his head like a target / You know he’s dead today / I’m on his ass like a Navy Seal / Man, my n—-s we ain’t never squeal / I’ll pop your top like an orange peel / You know I’m from the streets / F.T.G. / You know the gutter in me / And I be always reppin’ my YSK shit / Because I’m a king / I be playin’ the block bitch / And if you ever play with me / I’ll give you a dream, a couple shots snitch / It’s like hockey pucks the way I dish out this / It’s a .40 when that bitch goin’ hit up shit / 4 or 5, rip up your body quick / Like a pickup truck / But you ain’t getting picked up / You getting picked up by the ambulance / You going to be dead on the spot / I’ll be on your ass.

Montague v. State, Slip op. at 7.

As a legal matter, the admissibility analysis is straightforward: assuming the rap is authenticated, it’s a statement made by the defendant, so it is admissible against him as long as it is relevant and its probative value is not outweighed by the risk of unfair prejudice. It’s the relevancy/prejudice determination that proves nettlesome. Evidence is relevant if it has a tendency to make any fact of consequence more or less probable. Arguably, a rap—or any recitation for that matter—describing a crime has some tendency to make it more probable that the performer was involved in the crime. So, since the rap clears the low bar of relevancy, the real question is whether the risk that the jury would be improperly affected by the rap outweighs that probative value. While the Court did not announce a categorical rule, it held that admitting this specific rap was not an abuse of discretion, and it articulated some factors to consider in making this determination.

The Court stressed the distinction between rap lyrics that include “statements of historical fact” versus those that are “works of fiction.”  A rap that is a work of fiction—at least, a rap that could be confidently identified as a work of fiction—would be inadmissible, whereas a rap that recounts historical facts might be admissible. Even where probative, the Court indicated that rap-lyric evidence “has an inherent prejudicial effect,” but that the probative value might outweigh that prejudicial effect “when the lyrics bear a close nexus to the details of the alleged crime.”

The Court noted two factors that are significant in examining that nexus. One is close proximity in time between the rap and the crime. Another is “‘stop snitching’” references. This second factor is particularly noteworthy because the Court recognized that “‘stop snitching’ is a theme that is common to rap as a genre,” yet did not offer any particular clarity as to how to differentiate between a generic trope—which presumably would not provide a nexus between the rap and the crime—and a genuine attempt at witness intimidation—which presumably would. In fact, the Court held that the rap “potentially imtimidate[d] witnesses” because it contained the lyrics “And if you ever play with me / I’ll give you a dream, a couple shots snitch.” But, aside from the fact that the defendant also called the victim’s sister a “rat” when he ran into her in the jail (she was there for unrelated reasons), it is not clear how the Court could conclude that the “stop snitching” references were an attempt to intimidate witnesses.[1]

Ultimately, the Court concluded that the defendant’s rap was strikingly similar to the facts of Forrester’s murder. The similarities included an alleged “reference to Mr. Forrester’s attempt to ‘play,’ or cheat, Mr. Montague by purchasing cocaine using counterfeit money”; an “acknowledgement that Mr. Montague shot Mr. Forrester, as if he were ‘a target’”; references to “a .40” which “is shorthand for a .40-caliber handgun,” where police “located two .40-caliber shell casings at the scene of Mr. Forrester’s murder”; and the fact that Mr. Forrester was taken away in an ambulance. These similarities, plus the short time—less than a year—between the shooting and the rap, and the references to snitching, provided a sufficient nexus to allow the jury to hear the rap.

Judge Watts wrote a strong dissent in which she argued that the rap contained nothing more than generic lyrics, with no clear factual nexus to the crime, and that showing it to the jury did nothing more than depict the defendant as a violent person. She pointed out that many of the factual similarities were general references to violence or common themes that could apply to any dispute, and that the supposed “stop snitching” lyrics had no probative value because there was no evidence that the victim “had ever been a confidential informant” or “provided the State with any evidence against” the defendant. Connecting the rap to any witnesses in the defendant’s case was “pure speculation.”

Although the analytical framework for determining the admissibility of any evidence is well established, the Court’s decision takes a broad view of when rap lyrics are probative. The Court’s treatment of “stop snitching” lyrics is particularly noteworthy. While the Court noted that such lyrics are a common theme—and recognized the danger in admitting “works of fiction”—it held that they provided a nexus to the crime in this case because they could be used “to potentially intimidate witnesses.” It’s hard to see when “stop snitching” lyrics wouldn’t satisfy this standard, and the Court’s reasoning could potentially erode the distinction between historical accounts and inadmissible works of fiction.

Perhaps the most significant lingering question is whether the Court’s decision adequately grappled with the cultural and artistic dimensions of the medium at issue. The Court acknowledged that some thematic elements common to rap could be misconstrued as references to a specific crime, but its explanation of why this specific rap bore a nexus to Forrester’s murder relies heavily on general references to crime and retribution, and it considered them temporally relevant largely because they were simply made after the crime and close to the trial. It is particularly concerning that the Court based some of its conclusion that the rap made “it more probable that [Montague] shot and killed Mr. Forrester” on the fact that it included certain “slang and abbreviations” whose meaning the Court derived solely from the website Urban Dictionary.[2] 

Placing too much evidentiary significance on common elements of a genre without the proper social and artistic context risks creating criminal associations with the genre itself—and the people who use it to express themselves. Although the Court was clear that rap itself is not evidence of a crime, it is fair to ask whether, following the ruling in Montague, genuine examples of artistic expression will be held against more defendants. Time will tell what the full scope of the Montague decision is.

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[1] The Court also noted that the man recording the rap “warned Mr. Montague about reciting his rap lyrics, because they could be used as evidence against him,” the defendant responded “‘I’m gucci. It’s a rap. F–k they can do for—about a rap?’”

[2] As Judge Watts pointed out, there was no evidence about this slang at trial.  Dissent at n.2.