Maryland Moving at a Misguided PACE

By: James Trusty

Maryland legislature is considering passing a law ineptly called the Protecting the Admissibility of Creative Expression (“PACE Act”) which would limit the use of rap lyrics, among other forms of expression, in criminal and juvenile proceedings. While prosecution use of rap lyrics in criminal trials is a bit uncommon, the state house move here is in reaction to a 2020 murder case in which a defendant’s post-arrest rap about killing “snitches” with a “.40” may have weighed heavily in the jury’s conviction.

In Montague v. State, 471 Md. 657 Md. 2020) the Maryland Supreme Court affirmed the trial court’s ruling that Montague’s ruminations about murder and using a .40 caliber weapon—made from a jail phone after his arrest—was not an abuse of discretion. The Court took pains to discuss the hip-hop culture and acknowledged that apparent celebrations of violence are not necessarily admissions to wrongdoing, but it recognized that the details included in this particular rap were sufficiently tethered to the murder to be fair game at trial.[1]

The legislative reaction is to largely remove discretion from the trial courts and make all forms of creative expression presumptively inadmissible. PACE would require the trial court to justify admissibility by finding (by clear and convincing evidence) that the defendant intended the words to be literal, that they refer to specific facts of the alleged offense, and that the “probative value…cannot be provided by other admissible evidence.” The overall combination of these prerequisites will make trial judges feel they are on very precarious ground when they allow the jury to consider lyrics along with more traditional forms of direct and circumstantial evidence.

In reacting to Montague, the bill’s sponsors seem to utterly neglect other possible grounds for admission. For instance, in cases where gang membership is an important part of the prosecution’s case, song lyrics, doodles, and graffiti can be a compelling way of showing that the author belongs to the criminal enterprise. “Creative expression” can also be a way of establishing, or at least supporting, motive in a crime of violence. Plenty of wannabe crooners will celebrate their gang membership (ex. Bloods) which expressly or impliedly implicates their hatred of rivals (ex. Crips), a concept that would fall short in PACE’s event-specific criteria. Have the lawmakers considered circumstances like Dylan Roof’s jailhouse “manifesto” after slaughtering innocent churchgoers in Charleston, SC? Would not Roof’s hateful and racist diatribe be excluded in a Maryland trial as his “creative expression” because it does not sufficiently mention the murderous details of his rampage?

Weighing in this heavily on rap lyrics’ admissibility is addressing something that may actually be an uncommon and already carefully considered admissibility issue—a little like Maryland’s legislature deciding they need to ban sharks from Deep Creek Lake. Considering the fact that the chosen acronym does not even make sense (“admissibility” of creative expression is not what they are protecting) maybe the legislators should educate themselves before restricting judges presiding over serious violent crime trials.[2]

[1] Id. at 689.

[2] Starting with Key & Peele’s inspired comedy on this topic: https://www.youtube.com/watch?v=14WE3A0PwVs