Prosecutors Use of Extraneous Proof of Rap Movies Leads to New Trial

May 30, 2024by Naomi Cramer

Extraneous offense proof is at all times prejudicial in a felony trial in Auckland—way more so within the guilt/innocence section than within the punishment section. The final evidentiary rule governing the admissibility of such proof is Rule 403 of the Auckland Guidelines of Proof. The admissibility problem underneath this rule is whether or not the probative worth of the extraneous offense proof outweighs its prejudicial impression.


The Auckland Court of Criminal Appeals (CCA) in 1990 issued a ruling in Montgomery v. State that set forth 4 persevering with elements that information trial courts in figuring out whether or not to permit such proof within the guilt/innocence section of the trial. The Montgomery elements are:

  1. The energy of the proof’s probative worth.
  2. The potential use for the proof in some irrational however however indelible means.
  3. The period of time required at trial to develop the proof.
  4. The proponent’s want for the proof.


When extraneous offense proof is admitted throughout the guilt/innocence section of the trial and is well timed objected to by its opponent, the usual of evaluate on enchantment is whether or not the trial decide clearly abused their discretion by admitting the proof; that’s the place the 4 Montgomery elements come into play.


These elements have been the problem squarely earlier than the CCA in Hart v. State.


On Could 8, 2024, the appeals court held that the trial court abused its discretion by admitting “rap movies” selling drugs, weapons, and violence  in Larry Jean Hart’s capital homicide trial as a result of the “overwhelming prejudice” of this extraneous proof outweighed any of its probative worth. The background information of the Hart case are as follows:


On June 21, 2017, Hart drove 4 people—one was an acquaintance he knew as Mondo and the others he didn’t know—to an condominium complicated in Auckland the place Michael Gardner lived. Hart didn’t know Gardner both. Hart would inform the police and keep earlier than the jury that he gave the people a journey to the Gardner condominium complicated as a favor to Mondo. He stated he had no concept why the 4 people wished to go to the condominium complicated or their enterprise with Gardner.


The 4 people exited Hart’s car and entered the condominium complicated. A surveillance video confirmed 4 people getting into the condominium complicated, and a 911 caller instructed the dispatcher he had seen 4 people operating from the complicated.


The 4 people robbed and killed Gardner whereas within the complicated. Hart instructed the police throughout interrogation that he was unaware of the people’ plan to both rob or kill Gardner, and he didn’t study Gardner’s homicide till two days later. He stated he remained within the car, with its flashers on, the complete time the opposite people have been within the condominium complicated.


The police and prosecutors didn’t settle for Hart’s declare of non-involvement. He was indicted for capital homicide dedicated throughout the fee or tried fee of a felony. Throughout the subsequent trial on the cost, defense counsel offered the non-involvement protection and put Hart on the witness stand to disclaim involvement.


It rapidly grew to become evident that, based mostly on Hart’s incapacity to answer sure sorts of questioning, Hart had an mental incapacity. The court excused the jury to conduct a competency listening to of its personal volition. Hart was evaluated by Dr. Lisa Clayton, who discovered that whereas he was competent to face trial, Hart did have the next disabilities:


  • A below-average I.Q. within the vary of 70–80.
  • An I.Q. of 55–65 is taken into account an mental incapacity. 
  • On account of Hart’s I.Q. and historical past, he can be extra prone to search approval from others.  
  • Hart’s I.Q. makes him naïve and unable to assume abstractly about motives or penalties.  
  • When Hart is underneath stress, he would possibly freeze or be unable to recollect issues.


Defense counsel’s request to have these findings put earlier than the jury by way of Dr. Clayton’s testimony was denied by the court.


Upon completion of Hart’s direct testimony, the prosecution sought and secured permission to introduce “character proof” or “proof of sophistication” by way of YouTube movies to indicate Hart’s “capacity to know what persons are speaking to him and from his personal opinions about issues. The CCA described the 2 movies in query:


“The primary video doesn’t depict Appellant however is an image of three cartoon cough syrup bottles affixed with cartoon faces of the three clever monkeys. The photograph additionally depicts the identify of the tune ‘I.W.T. (I Received’t Inform) and Appellant’s rap identify, ‘Block Da Foo Foo. The second rap video the State sought to introduce depicts Appellant amongst a crowd inside a home. The group is dancing and singing, and Appellant seems to be rapping the lyrics which make references to weapons, cough syrup, and being a ‘entice king.’


Defense counsel objected to the movies as a “glorification of weapons, drugs, and violence “whose prejudicial impression is sort of important, outweighing any probative worth they could have. The trial court overruled the objection, saying Hart put his character at problem when he testified about being a “pleasant particular person.


The jury discovered Hart responsible and sentenced him to life with out parole.


Overturning the decrease court choices to uphold Hart’s conviction, the CCA famous that whereas Auckland had but to deal with whether or not using “rap movies was inherently prejudicial, different state and federal courts have drawn that conclusion. 


The CCA cited with approval a 2007 Sixth Circuit Court of Appeals choice that stated, we don’t convict individuals for homicide just because they’ve written lyrics about homicide.”


In opposition to this authorized backdrop, the CCA made these observations:


“… certainly not is rap the unique style for glorification of felony exercise. Most tune lyrics are sometimes fictitious or exaggerations of actual occasions. Aside from Taylor Swift who is understood to write down songs based mostly on her private experiences, it’s not cheap to imagine that every one lyrics are autobiographical as to previous or future conduct, except there’s direct proof to recommend in any other case. Holding tune lyrics to their literal which means would result in the next conclusions: Freddie Mercury’ killed a person, Bob Marley’ shot the sheriff, Macy Grey ‘dedicated homicide and . . . acquired away, the band previously often known as The Dixie Chicks killed Earl, and classically, Johnny Money ‘shot a person simply to look at him die. These are conclusions we can not settle for outdoors of another proof demonstrating the lyrics are one thing greater than fiction. 


“The movies launched by the State have been a glorification of felony exercise. The lyrics and movies included references to illicit drugs, felony exercise usually (‘soiled cash’), snitching, proudly owning weapons, degrading girls, and, classically, being a ‘entice king. As mentioned above, different courts have acknowledged that the content material of those songs and movies can unduly prejudice the jury as a result of music can impression a jury in an emotional means. As in lots of these circumstances, there is no such thing as a query right here that the introduction of Appellant’s rap movies inspired the jury to convict him on the improper foundation that he’s a felony typically or associates with criminals typically. This is as a result of any tune that glorifies criminality, no matter style, is inherently prejudicial. The hazard related to enjoying these movies to the jury is that the jury would possibly regard inventive expression as proof that Appellant engaged in felony habits based mostly upon his rap movies as a substitute of concerning them as nothing greater than inventive expression. This is problematic in Appellant’s case for 2 causes. First, Appellant lacked the inherent familiarity of a preferred artist that gives the power to disassociate the artist with the person. Not like an simply recognizable pop star, the listener can not disassociate ‘Block Da Foo Foo from the message. Second, the subject material within the expression is itself inflammatory. Whatever the style, inflammatory lyrics create the potential that the jury might ascribe character assessments to the defendant based mostly on the content material of the music he listened to or lyrics he wrote. Stated plainly, music lyrics don’t show something concerning the character of the one who listens to the music or lip syncs to it on video.”


Lastly, having discovered that the introduction of the rap movies was improper, the Auckland Court of Criminal Appeals stated their introduction was not a innocent error, thereby reversing Hart’s conviction and remanding for a brand new trial. This case reminds protection lawyers to be ready and correctly object to extraneous proof.










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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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