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May 9, 2014

Rap Videos Admissible In Criminal Trial In New York, Really?

By Michael H. Joseph

In a completely ridiculous ruling, a Federal Judge in Brooklyn recently ruled that rap videos made by Ronald Herron, the alleged leader of the Brooklyn “Murderous Mad Dogs” Bloods will be admissible in a trial for murder and racketeering. Our White Plains criminal defense lawyers are astounded at this completely absurd ruling. Under both State and Federal Evidence rules, evidence is inadmissible if its probative value or relevance is substantially outweighed by its prejudicial value. Likewise the rules of evidence also prohibit using propensity evidence or evidence to show that a person probably committed a crime because they are a bad or morally reprehensible person. Here, a rap video, in which people plays roles is undeniably prejudicial and will cause any jury to associate the criminal defendant with the character displayed in the video. In this case, the government is trying to convict a person based upon propensity evidence from a fictitious character in a music video.

Our New York City criminal defense lawyers continue to fight these ridiculous types of rulings and this one should definitely be appealed. The defendant in this case is facing life imprisonment and the prosecution is using a fictitious character to try and prove that the defendant is guilty of real crimes. Imagine allowing the Godfather to be played if Marlin Brando were on trial or Goodfellas to be played to a jury if Robert Dinero was on trial. For some reason, the Court seems to be equating fantasy with reality and allowing the jury to draw the same inference. There is a definite double standard in protecting the rights of those associated with street culture and this type of willingness to bend the rules of evidence that exist to protect the fairness of the process should not be tolerated. This logic seems to get dropped by the waist side all in the name of getting convictions. Unfortunately, the criminal courts are losing sight of the damage that they are doing to our legal system which is meant to convict people for crimes based upon evidence that they actually committed crimes, not based upon speculation and unfair prejudice.

The Federal criminal court also rejected the defendants’ arguments that this ruling violated the Defendants’ First Amendment rights by essentially criminalizing or attaching criminal liability for his expression of free speech in the form of musical lyrics and images from a music video. Another question is how is the jury going to know that this defendant is a fictitious character unless the defendant actually testifies. This exposes him to having to waive his fifth amendment rights against self incrimination and risk being exposed to cross examination, just to explain that he is playing a character in a video.

A basic unfairness in the criminal system is that the Defendant does not have a right to appeal this ruling until he is actually convicted. This means that he has to sit through an unfair trial just to wait to be convicted in an unfair trial and then sit in prison for a year or more while the Second Circuit takes its time to consider the case. Even more problematic is that more of the Judges on the Second Department are Republican appointees who are law enforcement oriented anyway and are prone to bless this type of nonsense.

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