Ontario’s highest court has upheld the right of the prosecution to use an accused’s rap lyrics to help convict him of first-degree murder.
The Court of Appeal on Thursday rejecting Lamar Skeete’s attempt to overturn his 2012 conviction.
A ÎÚÑ»´«Ã½ jury found the rapper killed Kenneth Mark on Dec. 29, 2009 to exact revenge for testifying that Skeete and his brother had shot him a year earlier.
One of Skeete’s three grounds of appeal was that the trial judge wrongly allowed his rap lyrics to be entered into evidence. Skeete recorded his rap while in jail and posted it on a website. It included the lyric: “Real niggaz don’t crack to the coppers.â€
Skeete’s appeal lawyer argued the trial judge — Superior Court Justice Ian Nordheimer who recently joined the Court of Appeal — erred because he gave insufficient consideration to the context in which the words were spoken.
He also failed to consider that the words were artistic expression and undervalued the prejudicial effect of the evidence, the appellant lawyer argued.
Three Ontario Court of Appeal judges disagreed, saying they are satisfied the trial judge properly admitted the evidence of the rap lyric.
In their judgment, Justice David Watt, writing for the panel, noted that while there is no specific rule on admissibility relating to rap lyrics in a criminal trial, the admission depends on their “relevance, materiality†and both tests were met here.
“In this case, evidence of the rap lyrics assisted in proof of the appellant’s retaliatory motive for killing Kenneth Mark. As a result, the evidence was material.â€
The trial judge also provided the jury with “careful limiting instructions,†reminding them lyrics “were a form of artistic expression and may not represent the belief of the appellant,†wrote Watt.
The trial judge also explained to jurors that their decision “must be founded on evidence, not bias or prejudice.â€
The Court of Appeal judges also rejected defence arguments that the trial judge erred by admitting into evidence details about Skeete’s earlier attempt murder charge — which was withdrawn, while failing to instruct the jury about its limited use.
The judges were also unconvinced by the appellant’s argument that the trial judge wrongly failed to correct the Crown’s closing submissions that Skeete’s silence after the killing was evidence of circumstantial guilt.
David Tanovich, a University of Windsor law professor, wrote in an email to the Star that there is a danger of prosecutors using rap in court cases “because of a misunderstanding of the nature of rap and because the lyrics may trigger or confirm the juror’s stereotypes about young black men.†He has researched and written about the topic.
“In this case, I don’t see how this evidence had any probative value . . . given that the code of silence is a common theme in rap music,†Tanovich wrote. “The real issue is whether he (Skeete) acted on it.â€
Because systemic racism is a serious problem in the criminal justice system, courts should only permit rap lyrics in “exceptional cases,†he added.
