Fulton County DA Says She’ll Keep Using Rap Lyrics as Evidence

Fani Willis advised local hip-hop artists to “get out of my county” if they didn’t want inflammatory song lyrics used as evidence against them in court.

At issue is an August indictment alleging that the Drug Rich gang targeted influencer and celebrity homes for burglary or other misdeeds. Earlier that month, Willis used similar evidence in a similar indictment against Jeffery Williams, a/k/a Young Thug, and about a dozen co-conspirators. That indictment includes allegations of weapon and drug violations. Willis defended her actions. “I’m not targeting anyone, but you do not get to commit crimes in my county and then decide to brag on it, which you do as a form of intimidation, and not be held responsible,” she said.

AllHipHop.com founder and CEO Chuck “Jigsaw” Creekmur said the use of song lyrics in criminal prosecutions is on the rise. “It seems like the lyrics are more reflective of reality than we’ve seen in the past,” he noted. Nevertheless, “creative expression should be free” and only some artists include lyrics about their conduct, he added.

Song Lyrics and Criminal Evidence

This issue has come up before. Some people may remember Tipper Gore and the Parents Music Resource Center from the mid-1980s.

Tipper, who was married to then-Tennessee Senator Al Gore at the time, was aghast when she heard her 11-year-old daughter listening to the Prince song Darling Nikki. The song is definitely suggestive, to say the least.

Gore, along with the wives of other prominent politicians, lead a campaign against not only sexually suggestive lyrics, but also against violent music lyrics. Things got a bit heated. Twisted Sister frontman Dee Snider said Gore had a “dirty mind” because the band’s song Under the Blade, which she claimed had sadomasochistic references, were actually about medical surgery.

The PMRC campaign was successful, as far as its partners were concerned. Music companies agreed to place parental warning signs on albums which had offensive lyrics. The effect of these labels is debatable.

About the same time, a Florida court ruled that some 2 Live Crew lyrics were obscene and therefore not subject to First Amendment protection. The case went all the way to the Supreme Court, where the Justices reversed that decision.

Also about the same time, and perhaps more importantly for purposes of this post, a 19-year-old Californian shot himself after listening to an Ozzy Osbourne song which allegedly promoted suicide. Osbourne insisted the song, Suicide Solution, didn’t promote suicide, a claim we find tenuous at best.

Nevertheless, when the young man’s parents sue Osbourne, a judge threw the case out of court, saying a self-inflicted gunshot wound wasn’t a foreseeable result of the song.

Burden of Proof in Criminal Cases

Therein lies the issue when plaintiffs or prosecutors try to use song lyrics in criminal proceedings. It’s very difficult to establish a definite link between song lyrics and criminal conduct. But prosecutors will keep trying, mostly because the burden of proof in criminal cases is so high, states’ attorneys will use any evidence they can get their hands on.

The definition of reasonable doubt varies in different states. Georgia’s definition, which is in Section 24-14-5 of the Georgia Code, is troubling on several levels. According to the statute: “Whether dependent upon direct or circumstantial evidence, the true question in criminal cases is not whether it is possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt.”

First, this definition isn’t very useful. It basically defines a reasonable doubt as a reasonable doubt. That’s a bit like saying a brown horse is a horse that is brown. So, jurors are mostly on their own when it comes to the sufficiency of evidence.

Second, and more importantly, that bit about your conscience introduces the element of moral guilt into a legal matter. Prosecutors love that. If jurors have a “gut feeling” the defendant is guilty, even if there’s not enough evidence to support that finding, Section 24-14-5 implies that it’s okay to vote guilty.

We often say that if we had one wish, it would be to change the “guilty/not guilty” choice to “proved/not proved.” That change would remove the moral element from the debate.

The vague and prosecutor-slanted definition of reasonable doubt is one reason Marietta criminal defense lawyers often urge their clients to plead guilty, if the state makes a reasonable offer. Trials are always risky. The reasonable doubt definition makes them even riskier. Your liberty is too important to chance.

Evidence Collection Rues

Anyone can find song lyrics and use them in court. These lyrics are publicly available. Other kinds of evidence collection must follow the rules set forth in the Bill of Rights, and the Supreme Court cases that interpret these rules.

The Fourth Amendment prohibits unreasonable searches and seizures. A search is reasonable if a judge issues it based on an affidavit that shows probable cause. Affidavits which over-rely on a paid informer’s testimony often have probable cause issues. Most people will say almost anything for love, which in this case is usually leniency in another matter, or money.

Searches in Georgia are also reasonable if a narrow search warrant exception applies. The recognized exceptions include:

• Plain View: If officers see contraband in plain view, they don’t need warrants to seize it. This exception assumes the stop was legal. Officers must legally be in that place at that time.
• Consent: Property owner may consent to property searches. The property could be something small, like a cellphone, or something big, like a vehicle. Consent is a voluntary agreement. If officers apply any pressure, the consent arguably isn’t voluntary.
• Search Incident to Arrest: Back in the day, this exception was very common. Then, the Supremes limited such searches to weapons pat-downs. So, this exception doesn’t come up much anymore.

That final bullet illustrates the changing nature of these exceptions. Courts usually expand or restrict them, depending on which way the political winds are blowing.

The Fifth Amendment contains a number of protections. For evidence collection purposes, the most important one is probably the right to remain silent. This right begins when custodial interrogation begins. In this context, “custody” means the suspect doesn’t feel free to leave.

Discovery Rules

Other evidence rules involve discovery in criminal cases. Brady vs. Maryland, a landmark 1963 Supreme Court case, established some general principles in this area. All these years later, the specifics are still uncertain.

Georgia rules require prosecutors to turn over party statements, witness statements, scientific evidence, and most other kinds of evidence either five or ten days before trial. That doesn’t give a Marietta criminal defense attorney much time to prepare, especially if the previously withheld evidence is a bombshell. Additionally, the relevant section, 17-6-4, has lots of loopholes.

The last-minute discovery rules are another reason to settle these cases out of court. The U.S. Constitution prohibits trial by ambush, but Georgia law basically allows it.

There’s a difference between a criminal charge and a criminal conviction. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. Convenient payment plans are available.