Using Rap Lyrics as Evidence in Criminal Trials

In more than three dozen cases across the country,  rap lyrics are  playing a major role in criminal trials. Gangsta rap is a genre of rap music that embraces a violence, drug deals, and shootings. The explosion in the use of rap lyrics at trial are causing some criminal defense lawyers concern. The lyrics are being used to inflame jurors and prejudice the accused.  In most cases, the lyrics represent a confession to the crime.

Here are some of the theories for the introduction of rap lyrics:

  • As a criminal act in themselves.

In Illinois v. Oduwole, the government used the lyrics themselves as a threat against campus police.

  • As evidence of motive and intent.

Rule 404 (B) of the Tennessee Rules of Evidence allows use of this type of evidence to prove intent.

  • As a confession.

In most cases, the lyrics are a confession of the crime. In the case of  Antwain Steward, the main piece of evidence is the rap lyrics, which give a detailed confession of the murder.

There are rules of evidence that support the government's use of rap lyrics.

1. The confession in a rap lyric may be considered a admission by a party-opponent. A statement by a party that has manifested an adoption or belief in its truth. In the Steward case, the rap song gives a general account of the murder though not identical.

2. The statement in a rap lyric may be introduced to establish intent, identity, a common scheme or plan. Tennessee Rule of Evidence 404 (B) allows the introduction of other crimes, wrongs, or acts. One of the purposes of the rule is to use that evidence to identify the perpetrator. How damning can a rap lyric be if the rapper details the murder in the lyrics.

The critical question is how does a court balance the use of rap lyrics verses the defendant 's right to a fair trial. It is a question that becomes more difficult with the increased amount of publicity regarding rap and some of the negative connotations that gangsta rap portrays.

Bottom line is that if you commit a murder, don't write songs and sing about it. 


Follow Up To A Modest Proposal

Yesterday's post was my modest proposal for Governor Haslam to commute all those on death row to a sentence of life without parole instead of the death penalty. The Tennessee Administrative Office of the Courts contacted me today with the cost of court appointed lawyers defending those facing the death penalty.

The cost to Tennessee taxpayers for the 2011-2012 fiscal year was $1,527,383.03.

Here is what that number does not include;

  • It does not include post conviction proceedings which are handled by the Post Conviction Defender.
  • The extra incurred cost by the prosecutor's office.
  • The cost incurred in the federal court system.

There are other various costs of the death penalty. It is just food for thought. 


A Modest Proposal To End The Death Penalty In Tennessee

Lt. Governor Ron Ramsey made the news when he called for Tennessee to start executing those on death row. 79 people are on death row in Tennessee. Tennessee has not executed anyone in years. Delays are numerous as the appeals process is long and hard. With the delays , the victim's families play the waiting game of will they or won't they.

My modest proposal is stop all these appeals and delays and ask Governor Haslam to commute all 79 folks on death row sentences to life without parole. It basically means that they will die in prison. Why should the government commute death penalty sentence ?

According to the Death Penalty Information Center , executions are down in America . In fact , Texas which kills more folks than anybody are adopting life sentences without parole which is a major factor in the decline.

My request is more pragmatic for two reasons. First , the appeals would end. The fight over the right mix of drugs to kill someone would end . I tried to contact Tennessee's Administrative Office of the Courts to get the amount taxpayers spend on indigent defense in death penalty cases went unanswered . After being transferred to several people , I got dumped into voice mail. I guess nobody knows what Tennessee taxpayers spend on the death penalty. Second , it is closure for the families of the victims. Thank God I have never experienced their pain of loss over a loved one , but to relive that those moments time and time again with appeals and delayed execution dates. At least with life without parole means the person convicted will die in prison.


My modest proposal is first commute all death sentences in Tennessee to life without parole. Then , hope the Tennessee Legislature closely examines whether Tennessee should still be putting folks to death. Only 32 states have the death penalty on the books. Is it Time Tennessee joins the list ?

Aaron Hernandez Caught by Cell Phone Tehnology

Patriots tight end Aaron Hernandez has been charged with murder . While his lawyer Michael Fee puts his spin that "it is a circumstantial evidence case;it is not a strong case." I disagree with Mr.Fee based upon what is reported in the news.

Mr.Hernandez was caught in large part based on the newest weapon in a police murder investigation arsenal. Tracking a cell phone tower is the latest way to investigate murder cases in today's world. Your cell phone calls leave a digital footprint where your phone as been used. Most times the phone is with you. Police pieced together cellphone tower tracking records to find out the location of Hernandez. Then, it appears they captured text messages from those involved. One text could be considered a declaration of the deceased that he was with Hernandez.

Video cameras may have captured some of the goings on before and after the murder. The Boston Marathon bombing showed how police used these video tapes to capture the bombers. Here, there were video cameras inside and outside the Hernandez home.

Mr.Fee may think it is circumstantial evidence, but the proper use of cell phone technology can plot a time line of Mr.Hernandez movements before and after  the shooting based upon his use of his cell phone . My experience is that this type of evidence is powerful if done properly.

Old school ballistic evidence matched the bullets found at the scene of the murder to shell casings found in the rental car. The killer must have used a semi-automatic that ejected the shells rather than a old school revolver . The snitches will be the last piece of evidence. One police theory is that others are involved. Police will not confirm or identify the other two men who were with Hernandez. A person facing a murder rap may just talk about what Mr.Hernandez did that night.

The Hernandez case is one example of the use of technology being used to solve crimes. Most folks don't realize they leave a trail of their whereabouts when they use their cellphone . Expect to see more investigations utilize cell phone tower tracking. One more key point is that under Tennessee criminal law circumstantial evidence is enough to convict one of first degree murder.Mr.fee has his work cut out for him.

The Difference In How Death Penalty Cases Are Handled

Craig Garber pleaded guilty to a triple murder in Nashville,Tn. yesterday. Mr.Garber was facing the death penalty. Nashville's District Attorney's Office made the decision to offer a plea bargain agreement where Mr.Garber must  serve three consecutive life sentences.Mr.Garber will be eligible to get out in 153 years. There were several reasons why the District Attorney's Office made the plea bargain offer.Swift punishment gives the family closure and avoids years of appeals.


Contrast the handling of this case compared to the Aurora ,Co shooting case. James Holmes offered to plead guilty to all these murders and accept a sentence of life without parole. The prosecutors in Aurora would not accept his plea offer. Now , the case is going to trial where the prosecutors will be seeking the death penalty. The case will drag on for years. Each court appearance will  remind all those of the tragedy. Houston lawyer Paul Kennedy posted on whether this decision is really serving justice. Is revenge the reason for going to trial on a death penalty ? Is the death penalty the right solution ? Mr.Holmes was ready to accept death in prison but the prosecutor did not to accept.

I would like to commend the Nashville District Attorney's decision in this murder case. The prosecutors sought justice. Mr.Garber is going to die in prison. They sought relief for the family. The family agreed to the sentence.A death penalty case takes a life of its own with years of appeals which was avoided. I don't always agree with the District Attorney's Office on cases, but I do agree with how they handle death penalty cases. Death in prison is almost the same as the death penalty. The use of the death penalty should be substituted for life without parole.

Castle Doctrine in Montana Results In No Murder Charges

Montana has a Castle Doctrine as a defense to a murder charge.  However, it is currently being reexamined.  Heather Fredenberg had an affair with Brice Harper. Her husband, Dan Fredenberg, found out about the affair and went to Mr. Harper's house to confront him.  Mr. Fredenburg walked though a open garage door where he was shot and killed.

Prosecutors declined to press charges stating Harper was protected by Montana’s Castle Doctrine law.  Harper believed he was about to be assaulted; therefore, his use of force was justified under the law even though Fredenberg was unarmed.

County Attorney Ed Corrigan, in a letter (PDF) to members of the Kalispell Police Department, outlined his reasoning for not pressing charges against Brice Harper.  Mr. Corrigan relied on Montana's version of the Castle Doctrine, a prior altercation between the parties and Mr. Harper's statements at the time of the killing.  The biggest issue was that that Mr. Fredenberg, who again was unarmed, was shot three times.

Here is Tennessee's version of the Castle Doctrine:

 Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be, has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

    (A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;

   (B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and

    (C) The belief of danger is founded upon reasonable grounds.

(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.


The basic principle is that a man's home is his castle. He can protect his family or himself while at home. The defense is very similar to the defense being used in Florida in the Zimmerman case.
The question posed is should it be a defense to kill someone at your home under certain circumstances ?


Will the Drew Peterson Verdict Stand Up ?

I had not followed the Drew Peterson murder trial until a friend asked me if I thought he was guilty. I did not know much until the verdict came down. It appears some hearsay evidence persuaded the jurors to return a guilty verdict.  A new rule of evidence was passed in 2008 which allowed some hearsay evidence to be admitted. It was called " Drew's Law." Normally , hearsay evidence is not admitted into evidence absent some exception to the hearsay rule.

This verdict may not stand up. I read about numerous instances where the prosecutor introduced evidence that was precluded by the court. The major problem is whether this new hearsay exception trumped Peterson's right to confront and cross examine witnesses. The hearsay rule was put in place so one person could not repeat what another person said. In Crawford v Washington , the U. S. Supreme Court has found that the confrontation clause is a bedrock constitutional right. The basic rule is an accused has a right to confront and cross examine any witness that may be called against you. The Tennessee Constitution is even stronger


That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the County in which the crime shall have been committed, and shall not be compelled to give evidence against himself.

Tennessee requires you meet your accusers face to face. So , the question becomes will the verdict stand up on appeal and whether this rule of hearsay trumps the confrontation clause.


Zimmerman's Legal Defense Team's Social Media Strategy

Who says you can't learn anything on Twitter ? Last night while I was listening to the Alabama Shakes debut release , I read a tweet from lawyer Bob Ambrogi who writes on law firm web sites and social media . The tweet linked to a post about George Zimmerman's lawyer creating a social media campaign.

It appears that the Zimmerman legal defense team has created a Facebook page as well as a Twitter account . I have never known a person facing criminal charges to launch a social media campaign . Interestingly , the lawyers for Mr. Zimmerman claim it is not to influence the public but rather to manage the emails and phone calls about their client. Two things may be going on as to why the social campaign was launched. First , the social media campaign puts a spin on the case from the defense perspective. Second , the firm is simply promoting itself. The criminal defense lawyers have the case of a lifetime with intense media coverage.Why not parlay that into a bigger reputation. I expect the court will issue a gag order to stop the media campaign.

On the local front, the question remains is whether other lawyers will launch a social media campaign about their clients or potential issues. How about a social media campaign on breath alcohol tests or police tactics. It appears to be an ongoing problem with how the courts deal with social media in the future.

Should Smartphones Be Banned From The Courtroom ?

Should smart phones be banned from the courtroom during trials ?  A Kansas judge had to declare a mistrial recently in a murder trial . A local reporter from the Topeka Capital-Journal got permission from the court to use her camera phone to tweet from a murder trial. The reporter was even allowed to take pictures during the trial as long as no images of jurors were taken. A profile of one the jurors was taken. Once that was discovered , the court declared a mistrial.

Smart phone technology is becoming a growing problem for the courts. Juror privacy is one issue that was raised in this case. How about leaking trial testimony to future witnesses via tweets , Facebook, , and video or recordings from smart phones. It also brings the issue of whether phones should be taken from jurors during a trial. It is human nature not to want to discover some facts about a case if a juror feels they need the information.

In the Kansas case , the newspaper should be sanctioned for their negligence. The persons hurt was the victim's family  and the defendant who were both denied their day in court since the trial was continued. A trial should be in a vacuum . No outside information other than what is presented from the witness stand is allowed, but influence seeps in. The courts must deal with these technology issues.

Should Jurors Be Allowed To Question Witnesses ?


Shanterrica Madden is on trial for the murder of MTSU basketball star Tina Stewart . Brandon Gee reported on a recent  hearing in The Tennessean . Circuit Court Judge Don Ash follows a novel procedure that allows jurors to ask questions during the trial. Defense attorney Joe Brandon filed a pre-trial motion hoping to persuade the court from using the procedure. I can understand his position . Mr. Brandon may assert a self-defense argument. So , he does not want the jurors asking questions of his client while she is on the stand.

Basically , the jurors would submit written questions anonymously to the trial court . The court would review the questions and exercise  it's discretion in deciding to submit these questions . Normally , the district attorney and the criminal defense lawyer  ask questions of a witness during a trial.The Tennessee Supreme Court adopted this rule in 2003 , but from my experience this procedure has been seldom used . I am not aware of any Nashville criminal court judge currently using this procedure . Years ago , I tried a case in Williamson County with Judge Harris who tried the process . In my opinion it did not go well because most of the questions tendered were in violation of the rules of evidence. It also slowed the trial down and created too many interruptions of the trial.

I am all in favor of jurors having all the information available to them to decide the case. However , the Tennessee Rules of Evidence gives trial lawyers the rules on questions that can be asked or not. In my experience the questions were not allowed based upon some rule of evidence. What if the juror asks a leading question or did they take a lie detector test .Clearly , the process in this high profile murder case may be bogged down due to juror questioning .It seems to me  the new rules make the courtroom like a reality TV show with the jurors taking a active role.


My opinion is to stay true to the traditional courtroom procedure . Our justice system has a lot of problems , but it's the best one in the world today. I think it is time to abolish this seldom used rule.

I would like to hear your opinion. Should jurors be allowed to ask questions to the witnesses ? Please post your comment .


Death Sentence Reversed Due to False Snitch Testimony

The jail house snitch is often used as a key witness in some criminal cases by the District Attorney's Office. The most memorable jail house snitch used in a Nashville , Tn. murder  case  was in the case against Perry March.  The Snitching Blog  reported on the case of Sivak v. Hardison where the 9th Circuit Court of Appeals reversed a death sentence . The court found the two snitches were unreliable , but more importantly that the state offered  testimony  knowing they offered perjured testimony. Here is a link  to the opinion.

Two things are important from this decision.First , a case based mainly on snitch testimony is suspect . The motivation to lie and commit perjury to get out of prison is overwhelming. Secondly , what happened to the prosecutors who offered the perjured testimony ? There was a case in Nashville years ago where the criminal defense attorney offered up known perjured testimony . A jail sentence and disbarment was his fate.  The better question is how to deal with the jail house snitch at trial.

Can Intoxication Be a Defense ?

Can intoxication be a defense to a first degree murder case ?  It can be a defense to one element of the case . In most criminal cases , the State of Tennessee must prove the Mens Rea  or criminal intent of the defendant's mind. In a first degree murder case , the state must prove the murder was the result of a premeditated and intentional killing of another .

Tennessee Code Annotated 39-11-503 provides that intoxication is admissible to negate a culpable mental state . It is not an absolute defense , but it could lesson a first degree murder charge down to a lessor included offense . The intoxication defense does not apply if the mental state is reckless.

In investigating a case , it is important if the person was under the influence of something at the time the crime happened.

In a first degree murder case , I tried a couple of years ago in Gallatin , Tennessee . Our defense was twofold . We admitted the client killed the person since there were several eyewitnesses to the murder , but we presented evidence that he was under strong provocation and he was intoxicated to the degree he did not appreciate the the wrongfulness of his conduct.  The jury agreed with our theory of the case. In this case , not guilty of first degree murder but guilty of reckless homicide. the defense saved my client a life sentence.

Warning. Be careful using this defense. One must admit to being there or committing the murder for this defense to be effective. You must have one central theme to defending the case .

Eyewitness Testimony vs. An Alibi Defense

Adam Liptak  who writes the Sidebar column for the New York Times reported on the case of Robert Rosario . Mr. Rosario was convicted of murder based upon the testimony of two witnesses who picked him out of a lineup. One problem existed . Mr Rosario claims to have been in Florida on the day the murder happened . Mr Rosario has appealed to the U.S. Supreme Court on claims of ineffective assistance of counsel . The Supreme Court is scheduled to decide next week if they are going to accept the case. The critical issue is what is expected of criminal defense lawyers in the performance of their representation.

Mr.Rosario's case hinged on eyewitnesses testimony verses the alibi defense . Mr Rosario had two alibi witnesses appear at trial . However the prosecution convinced the jury they were not credible .The jury convicted Mr. Rosario based on the identification evidence.

Since the Innocence Project has been in existence , it has been determined that eyewitness identification is the most common cause of wrongful convictions. In fact , the first 200 DNA exonerations involved 158 convictions by eyewitness identification .

Here is what one Federal Court thought about eyewitness identification ;

As a federal appeals court put it in 1992, “Eyewitness evidence, uncorroborated by a fingerprint, gun, confession or co-conspirator testimony, is a thin thread to shackle a man.” It is also, the court said, “precisely the sort of evidence that an alibi defense refutes best.”

It appears there were at least seven other witnesses that could confirm Mr.Rosario was in Florida , but the lawyer did not interview or call them to the stand . In eyewitness identification , there should  be some requirement of corroboration such as a co-defendant statement or some type of physical evidence.

In Tennessee , an accused is allowed to introduce expert testimony in the unreliability of eyewitness testimony at trial .



What is Blood Spatter ?

In most murder cases a firearm is used . After someone is shot , blood is usually present at the crime scene . Can homicide detectives use blood found at the scene to make their case ? The blood left behind may provide some clues as to what happened . One method of bloodstain analysis is blood spatter .

Blood spatter is defined as a dispersion of blood spots of varying size , created when a source of fluid blood is subjected to an external force. Blood spots within the dispersion exhibit characteristics that indicate the location from which they originated . Blood spatter is commonly found at crime scenes where bloodshed has occurred .

Analysis of blood spatter may do the following :

  1. Where did the spatter events occur ?
  2. Link the accused's clothing to the location of  a blood spatter producing event .
  3. Link the accused to the murder.
  4. Allow for the determination of the mechanism by which the spatter was created .
  5. Be used to corroborate or refute an accused's statement of how the blood was deposited on their clothing .
  6. Link an item of evidence to a blood spatter-producing event .

 Blood stain analysis is one piece of the puzzle in a murder investigation . Here is a link  to a presentation of blood spatter evidence that may be helpful .

Dress for Success in the Courtroom

No time for blog posts for awhile .  I was  in a first degree murder trial last week . I learned a few time honored lessons in the courtroom . Dress for success still applies in a criminal jury trial .

Here are a few tips :

  • Get a haircut . My client refused to get a haircut on one of the most important weeks of his life . Jurors like nerds . Get a nerd haircut .
  • Shave . No facial hair period .
  • Wear a dark colored suit . Think Brooks Brothers type clothing . Be conservative . At the least  , wear tan pants , white dress shirt , and a striped tie.
  • For women , no short skirts . Don't show too much skin . You know what I mean .
  • Wear you pants at waist level . I know it's the style to wear your pants low . Heck even my son wears his pants low . Jurors might not care for your fashion sense .
  • No jewelry .
  • No tattoos showing . Cover them if possible .
  • If you wear contacts , wear glasses for trial .

New York attorney Carol Schlitt wrote a article on what not to wear to court that is worth reading . Dress and demeanor are critical in the courtroom . Jurors judge you by what you wear and how you act . During those stupid bench conferences on whether some evidence should be admitted , the jurors are sizing you up . I know the judge will tell them about the presumption of innocence , but that doesn't stop them from judging you on your appearance .

Here is my suggestion . Choose your outfits . Take a picture of them or take them to your lawyer's office to see what they think . Think church or funeral attire .



The Cost of Death


 Lawrence Buser of The Memphis Commercial Appeal recently added up the costs of the death penalty trial of Jessie Dotson.Jury selection took place in Nashville,Tn. and the jurors were taken to Memphis for the trial.Mr.Dotson was convicted in the first degree murder of six men , women , and children . The trial is believed to be the most expensive trial in Shelby County history totaling over $ 450,000.00 so far.Years of appeals and related proceedings lay ahead.So what is the cost of the death penalty ?

Shelby County Sheriffs Office's part of the tab was $167,310 which included security , overtime , and expenses of the sequestered jury. Over $250,000.00 was paid for defense counsel , a private investigator , a mitigation expert , and another expert witness.Also , the District Attorney , Judge , and court personnel were employees of the state and not included in the dollar amount.The cost will climb after appeals , post conviction hearings, and numerous trips to the federal courts and maybe even the U.S. Supreme Court.

Does the expense of a death penalty trial make economic sense ? One option is to offer a plea to murder with life without parole in lieu of the death penalty.Knowing you are going to die in prison has to be a powerful punishment.I understand from the family's perspective that a horrific crime deserves big punishment. How do we balance justice with cost effective punishment.Mr. Dotson's bill is close to a half a million and the other mass murderer on death row Paul Dennis Reid bill is at $ 420,000.00 and counting.

Some people might think that we just need to eliminate the lawyers and the appeals.The ultimate penalty deserves the ultimate defense as mandated by the U.S. Constitution.

"People will say there was an eyewitness, why have a trial, but what if the guy'd been found innocent?" said Criminal Court Judge James Beasley Jr. "Do we put a price tag on the freedoms we have in our country? Is there a price tag for the justice system? When do we say that's too much?"

I think Judge Beasley's commentary bears some discussion . However , it's still cheaper than the lawyers charged the City of Nashville  for the convention center.




The Story of a Sister Who Proved Her Brother's Innocence.

NPR featured a story on Betty Ann Waters  . Ms. Water's  brother was wrongfully convicted of a murder he didn't commit. DNA evidence proved he did not do it 18 years later. In an effort to exonerate her brother , Ms. Waters goes to law school , gets her degree and later frees her brother. I hope to get to see the movie soon. It's a great story of a sister fighting against all odds to prove her brother innocent. It is also another example of the rush to judgment to convict citizens with the slimmest of evidence.

The movie " Conviction" is based upon here story. Read the review here.



Gallatin Tennessee Man Released by DNA Evidence

A Gallatin , Tennessee man was released from the Sumner County jail based upon DNA evidence.Chris Cannon of Nashville's News Channel 5 reported that District Attorney Ray Whitley nolled the murder charge against. Joshua Singletary was accused of murdering Lydia Gutierrez.However ,it appears that Mr.Singletary remains a suspect.

This case is but another example that DNA evidence is becoming the gold standard in criminal cases.

The Verdict

The verdict came in on Raynetta Dossett Leath's murder trial in Knoxville.Ms.Leath was found guilty of First Degree Murder.She will receive an automatic life sentence.

Was it Murder or Suicide ?

A murder mystery is unfolding in a Knoxville Criminal Courtroom on the retrial of Ms. Raynella Dossett Leath. Ms. Leath's first murder trial ended with a hung jury when the jury could not reach a decision.Day Eight of the trial starts today.

David Leath was found dead of a gunshot wound in his bed. Ms. Leath's defense is that her husband committed suicide.However, a firearm's expert for the State of Tennessee testified at the first trial that the firearm was fired three times the day of Mr.Leath's death and it was the second shot that killed Mr. Leath.Knoxville criminal defense attorney James A.H.Bell offered proof that Mr. Leath was depressed and his health was poor.

The jury could not reach a verdict in her first murder trial in 2007.In closing Mr. Bell argued " If you believe Ms. Raynella murdered her husband you have to believe she is nothing but a serpent of Satan". This line did two things. It personalized his client by the use of her first name.Second, it used biblical imagery which works well in the South without violating the rules against quoting the bible in court.


Continue Reading...