In the criminal trial of defendant, Vonte Skinner, on attempted murder and related charges, a State’s witness was permitted to read to the jury, at great length, violent and profane rap lyrics that had been written by defendant before the events at issue. There was no assertion at trial that the violence-laden verses were in any way revealing of some specific factual connection that strongly tied defendant to the underlying incident. Nevertheless, the State maintained that the lyrics helped to demonstrate defendant’s “motive and intent” in connection with the offense because the rap lyrics addressed a street culture of violence and retribu tion that fit with the State’s view of defendant’s role in the attempted murder.
The Appellate Division reversed defendant’s conviction based on the admission of the rap lyrics into evidence in defendant’s trial. In reaching its conclusion, the panel used an N.J.R.E. 404(b) analysis and determined that the prejudicial impact of defendant’s rap lyrics vastly outweighed any potential probative value.
We affirm. We hold that the violent, profane, and disturbing rap lyrics authored by defendant constituted highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged. The admission of defendant’s inflammatory rap verses, a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against defendant. Fictional forms of inflammatory self-expression, such as poems, musical
I.
A.
On November 8, 2005, at approximately 10:30 p.m., Adam Donofrio, a patrolman in Willingboro Township, was dispatched to 103 Rittenhouse Drive to investigate a report of shots fired and a possible injured person. On his arrival, Donofrio observed an individual, later identified as Lamont Peterson, lying partially underneath an SUV. Peterson told Donofrio that he was unable to move his legs and was unsure if he was injured. When Donofrio removed Peterson’s clothing to check for injuries, he observed seven bullet holes in Peterson’s body: three in Peterson’s back, one in Peterson’s left arm, one in his chest, one in his upper abdomen, and two in his head. Donofrio took steps to stem the bleeding and called for emergency medical personnel. An ambulance soon arrived, and Peterson was transported to a helicopter pad and flown to Cooper Medical Center. En route to the hospital, Peterson told another officer that defendant, Vonte Skinner, 1 had shot him.
Following the shooting, Peterson initially was reluctant to speak further with the police. He claimed that the “code of the street” was not to “snitch,” and he felt he needed to get revenge on his own. However, Peterson eventually agreed to cooperate. He provided the police with a statement explaining that both he and defendant sold drugs for a man named Brandon Rothwell. According to Peterson, defendant joined Rothwell’s group two months before the shooting and defendant’s job was to be the group’s “muscle,” handling problems with customers and other drug dealers. Peterson stated that his relationship with Rothwell became strained once defendant was admitted to the group because Peterson’s share of the profits was reduced due to the addition of a new member. Unhappy with the loss in his revenue, Peterson withheld some money that he was supposed to turn over to Rothwell. According to Peterson, after he stopped paying his full share of drug proceeds, Rothwell demanded that Peterson return a TEC-9 firearm that had been provided to him as a group member. Peterson did not return the weapon.
Peterson testified that, on the night of the shooting, he engaged in multiple phone conversations with defendant, who purportedly
wanted to set up a drug sale. Peterson agreed to make the sale and to meet, at defendant’s suggestion, at Rittenhouse Park in Willingboro at about 10:00 p.m. As the meeting time grew closer, Peterson received several more calls from defendant, who seemed anxious to know Peterson’s estimated time of arrival. Peterson claimed that, on arriving at Rittenhouse Park, he saw defendant and Rothwell
Defendant was questioned by police on November 17, 2005, in connection with the attack on Peterson. Defendant initially denied being near the scene of the crime, but he eventually acknowledged arranging a drug deal with Peterson on the night of the shooting. According to defendant, he was at 103 Rittenhouse Drive, speaking with Peterson, when shots suddenly rang out. When he heard the shots, defendant fled on foot. Defendant also stated that Rothwell was not present at the meeting with Peterson.
Defendant told the police that he had driven a grey Chevy Malibu to Rittenhouse Park and that he abandoned the car after hearing gunshots and running from the scene. The police obtained a warrant to search defendant’s car 3 and discovered in it three notebooks filled with rap lyrics authored by defendant. By and large, the rap lyrics contained in defendant’s notebooks are profane and violent. Many of the lyrics are written in the first person under the moniker “Real Threat,” and defendant has the word “Threat” tattooed on his left arm.
Defendant reportedly has composed rap lyrics as a form of self-expression since he was a child. In fact, the record reveals evidence that some of defendant’s work had been produced in connection with a rap music label. Although it is not clear when each individual verse of the lyrics found in defendant’s notebooks was written, the State concedes that many of the lyrics found in defendant’s car and read to the jury were composed long before the circumstances underlying the instant offense took place.
B.
A Burlington County grand jury filed an indictment against defendant on November 16, 2006, charging him with first-degree attempted murder, contrary to N.J.S.A 2C:5-l(a)(3) and N.J.SA 2C:ll-3(a)(l); second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5 — 2(a)(1); third-degree unlawful possession of a weapon without a permit, contrary to N.J.SA 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a); second-degree aggravated assault, contrary to N.J.S.A 2C:12-l(b)(l); third-degree aggravated assault with a deadly weapon, contrary to N.J.SA 2C:12-l(b)(2); and second-degree possession of a firearm by a convicted person, contrary to N.J.S.A. 2C:39-7(b).
Before trial, defendant objected to the introduction of his rap lyrics into evidence. He requested a preliminary hearing pursuant to
N.J.R.E.
104 to contest their admissibility, which the court granted. The court concluded that the lyrics were relevant because they tended to prove the State’s theory of the case and that they were admissible under
N.J.R.E.
404(b) because the lyrics provided insight into defendant’s
Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict. Prior to defendant’s retrial, he renewed his objection to the admissibility of his rap lyrics; however, the trial court adhered to its previous determination finding the lyrics admissible.
At the second trial, a detective testifying for the State read extensively from defendant’s lyrics to the jury. The trial transcript of that uninterrupted reading stretches thirteen pages. The material was replete with expletives and included graphic depictions of violence, bloodshed, death, maiming, and dismemberment. The following excerpts of the pages and pages of verses read to the jury exemplify the general nature of the lyrics admitted against defendant:
I’m the n* * *a to drive-by and tear your block up, leave you, your homey and neighbors shot up, chest, shots will have you spittin’ blood clots up. Go ahead and play hard. I’ll have you in front of heaven prayin’ to God, body parts displaying the scars, puncture wounds and bones blown apart, showin’ your heart full of black marks, thinkin’ you already been through hell, well, here’s the best part. You tried to lay me down with you and your dogs until the guns barked. Your last sight you saw was the gun spark, nothin’ but pure dark, like Bacardi. Dead drunk in the bar, face lent over the wheel of your car-, brains in your lap, tryin’ to comprehend what the f* '’’k just tore you apart, made your brains pop out your skull.
On the block, I can box you down or straight razor ox you down, run in your crib with the four pound and pop your crown. Checkmate, put your face in the ground. I’ll drop your queen and pawn, ,sk — f* *k wastin’ around. They don’t call me Threat for nothin’.
You pricks goin’ to listen to Threat tonight. ‘Cause feel when I pump this P-89 into your head like lice. Slugs will pass ya’ D, like Montana and Rice, that’s five hammers, 16 shots to damage your life, leave you f* * * *■ *s all bloody----
In block wars I am a vet. In the hood, I’m a threat. It’s written on my arm and signed in blood on my Tech. I’m in love with you, death.
Although the case had nothing to do with women or violence that involved women, the material that the State read to the jury also included depictions of rape and other violent and demeaning treatment of women:
After you die, I’ll go to your Mom’s house and f* *k her until tomorrow and make ya’ little brother watch with his face full of sorrow.
So get them answers right. Where’s the case and stash of white. I got ya wife tied to the bed and at her throat is a knife.
Those verses, along with several more pages not reproduced here, plainly depict various crimes and other bad acts, but those crimes and acts were unconnected to the specific facts of the attempted-murder charge against defendant. The State did not attempt to clarify or explain the lyrics in any way, despite their heavy use of slang and otherwise esoteric language.
In his defense, defendant advanced a third-party-guilt theory. He contended that Peterson was shot by another man, Joseph Ward, with whom Peterson had an
During closing arguments, the prosecutor compared the “street code” of silence to a “subculture of violence.” Specifically, the prosecutor stated that he was “weary because you deal with this sub-culture of violence and because you wonder if this sub-culture at some point is going [to] overtake the regular culture. No snitching and ... don’t talk to the police.” The prosecutor also attempted to evoke sympathy for Peterson by depicting him as a fatherless child and stating, “[t]hese guys are just kids with guns. That’s all they are. Kids without fathers with guns.” Finally, the prosecutor likened the testimony of Alexandria Ross to “a call [for] anarchy.” He warned the jury that,
[i]f you accept Alexandria Ross’s testimony, that is a white flag to anarchy.... And if you want to surrender to anarchy and listen to Alexandria Ross ... then you’re free to [do] that. And you can take that same hand — by doing it, you take that same hand and grab it and walk [defendant] to you, walk him to the light of redemption. Walk him to the light of the vindicator. If you feel like that’s what you have to do, then do that. But think about what you are doing.
The evidence says you should not do that. Common sense says you should not do that. Lamont Peterson says you should not do that. Think about what you are doing.
Defendant did not object to the prosecutor’s summation.
The jury convicted defendant of attempted murder, aggravated assault, and aggravated assault with a deadly weapon, and acquitted defendant of all other charges. After merging the assault and attempted murder convictions, the trial court imposed an aggregate thirty-year sentence with an eighty-five percent parole disqualifies pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The Appellate Division reversed defendant’s conviction in an unpublished decision. The panel concluded, with one judge dissenting, that the admission of defendant’s rap lyrics into evidence was reversible error and necessitated a new trial. The majority primarily expressed concern over the prejudicial impact of defendant’s admittedly violent lyrics in an attempted murder trial and, as a result, analyzed the admission of defendant’s lyrics under the
N.J.R.E.
404(b) framework established in
State v. Cofield,
127
N.J.
328, 338,
A majority of the panel also believed that the State had access to other, less
Finally, addressing defendant’s challenge to the State’s closing argument, the majority simply noted that the prosecutor’s summation exceeded the bounds of permissible advocacy; however, it did not rest the reversal of defendant’s conviction on prosecutorial impropriety.
The dissent maintained that the trial court correctly analyzed the four Cofield prongs and properly applied them to this case. The dissent argued that the introduction of defendant’s rap lyrics made the inference of defendant’s motive and intent more logical. For that reason, the dissent believed that the lyrics did more than merely bolster Peterson’s testimony: “they also explained] why defendant, theoretically part of Rothwell’s sales team and a cohort of the victim, would have targeted him.” Accordingly, the dissent maintained that the probative value of defendant’s rap lyrics easily outweighed their prejudicial effect.
The dissent acknowledged that the trial court’s redaction of the lyrics was likely insufficient and that the jury had heard several verses entirely immaterial to the issues in the case. However, it concluded that the impact of the extraneous verses was harmless given their similarity to other relevant lyrics heard by the jury. Finally, the dissent emphasized that the trial court adequately instructed the jury on the permissible use of the lyrics.
Because a member of the Appellate Division panel dissented, the State filed for an appeal as of right, pursuant to
Rule
2:2-1(a)(2). In addition, defendant filed a petition for certification with this Court seeking review on several other issues. We granted defendant’s petition limited to his claim that the prosecutor exceeded the bounds of permissible advocacy in his closing argument.
State v. Skinner,
214
N.J.
174,
II.
A.
Defendant maintains that the Appellate Division correctly disallowed the admission of his rap lyrics into evidence under N.J.R.E. 404(b) because any probative value of such evidence is outweighed by its potential for prejudice. Defendant emphasizes that N.J.R.E. 404(b) is a rule of exclusion rather than inclusion and notes that, although redacted by the trial court, the lyrics read to the jury were disturbing, violent, and primarily written in the first person. He contends that their admission was highly prejudicial and served no purpose other than to inflame the passions of the jury. Moreover, defendant maintains that depictions of criminal behavior in rap lyrics are largely exaggerated and often convey nothing more than artistic bravado. Without being properly guided through expert testimony, defendant claims that rap lyrics are likely to be misinterpreted and misused by a jury.
B.
The State contends that the Appellate Division incorrectly concluded that defendant’s rap lyrics were inadmissible because of their capacity to prejudice the jury. Specifically, the State maintains that the Cofield test for the admission of evidence under Rule 404(b) was properly satisfied. The State also notes that in Koskovich this Court similarly admitted an individual’s lyrical musings as evidence of motive in a murder trial.
According to the State, the lyrics proffered at defendant’s trial are relevant because they shed light on defendant’s motive and intent. To that end, the State emphasizes that evidence of motive and intent “require[s] a very strong showing of prejudice to justify exclusion.”
State v. Covell,
157
N.J.
554, 570,
The State also insists that defendant’s lyrics were not admitted to establish that he was a “bad person.” Rather, it argues that the lyrics elucidate important aspects of disputed matters involving the alleged crime. Noting that defendant’s trial strategy was to suggest that defendant had no motive to kill a fellow “team member,” and that Ward, rather than defendant, had shot Peterson, the State argues that defendant’s motive and intent to kill Peterson were directly in dispute. Because defendant’s purported motive was contested at trial, the State maintains that the lyrics penned by defendant do more than corroborate Peterson’s testimony; they illuminate defendant’s motive and willingness to resort to violence. The State further notes that the jury explicitly was instructed to consider defendant’s lyrics only for the limited purpose of establishing motive or intent, and not as substantive evidence of guilt in this particular matter.
Finally, the State disputes that the prosecutor’s closing statement exceeded the bounds of permissible advocacy. The State emphasizes that defense counsel never objected to the prosecutor’s closing, indicating that the remarks were not perceived as prejudicial at the time. Furthermore, the State relies on the principle that prosecutors are accorded considerable latitude in forcefully summing up their case, so long as the remarks are reasonably related to the scope of the evidence presented.
C.
The Attorney General, appearing as amicus curiae in support of the State, argues that defendant’s rap lyrics are not “crimes, wrongs, or acts” within the scope of N.J.R.E. 404(b) and therefore should be analyzed solely for relevance under N.J.R.E. 401. The Attorney General further maintains that the determination of whether evidence is a “crime, wrong, or act” under N.J.R.E. 404(b) must be made independent of the evidence’s likely prejudicial effect. In other words, he contends that the mere fact that evidence is prejudicial to a defendant does not mean that the evidence is necessarily a bad “act” for the purposes of N.J.R.E. 404(b). Here, the Attorney General asserts that defendant’s authorship of profane lyrics does not constitute a crime and that the lyrics therefore should be assessed solely on the basis of relevance.
D.
The New Jersey Chapter of the American Civil Liberties Union (ACLU) appears in this case as amicus curiae on behalf of defendant. The ACLU asserts that defendant’s rap lyrics are a form of artistic expression and thus are entitled to heightened protection under the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution. The ACLU emphasizes that defendant’s lyrics are not akin to a diary and therefore contain limited probative value. Moreover, because rap lyrics are often a vehicle for social and political commentary, the ACLU argues that admitting defendant’s lyrics would run the risk of chilling otherwise valuable speech. Accordingly, the ACLU urges the establishment of a strict guideline against the admissibility of expressive works in a criminal trial, in light of the First Amendment protections ordinarily afforded to such works. It urges that their admissibility should be limited to situations clearly indicating that the author engaged in the crimes about which he or she has written. In the ACLU’s view, to hold otherwise would unduly discourage, or even punish, lawful expression.
III.
A.
Only once before has this Court had to assess the admission of song lyrics as part of the trial evidence adduced against a defendant. In
Koskovich, supra,
this Court considered the admission of what appeared to be killing-themed song lyrics found in a notebook that the defendant kept in his bedroom at the time of the offense. 168
N.J.
at 484-85,
However, an examination of the factual circumstances surrounding our decision in
Koskovich
reveals marked differences from the case here. In
Koskovich,
the defendant and his friend had called a pizzeria and placed an order for delivery to an abandoned home.
Id.
at 466,
The defendant was convicted and received a death sentence.
4
On appeal before this Court, the defendant raised a multitude of issues, including a challenge under
N.J.R.E.
404(b) to the admission of the lyrics.
Id.
at 482,
Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
[N.J.R.E. 404(b).]
In
Koskovich, supra,
we noted, preliminarily, that “[t]he State makes a legitimate argument that the items at issue do not represent ‘other wrongs’ as contemplated by
N.J.R.E.
404(b), and thus no analysis is required under that rule.” 168
N.J.
at 482, 776
A.2d 144. The trial court in that case had analyzed the evidence based on the defendant’s objection that the song lyrics lacked any probative value.
Id.
at 480,
Ultimately, we agreed with the trial court that the song lyrics evinced a “sort of obsession with killing people,”
id.
at 480-81,
B.
Following Koskovich’s lead, the trial court and the Appellate Division in this matter utilized N.J.R.E. 404(b)’s framework to assess the admissibility of the rap lyrics written by defendant. Although Koskovich did not purport to establish a universal requirement that lyrics or similar expressive works by a defendant involving themes of criminality must be analyzed under N.J.R.E. 404(b), the courts’ decisions to use the N.J.R.E. 404(b) framework in this matter is consistent with the safeguard that the rule provides.
It has oft been recognized that “[t]he underlying danger of admitting other-crime [or bad-act] evidence is that the jury may convict the defendant because he is ‘a “bad” person in general.’ ”
Cofield, supra,
127
N.J.
at 336,
In
Cofield, supra,
a four-part test was established “to avoid the over-use of extrinsic evidence of other crimes or wrongs” pursuant to a
Rule
404(b) exception. 127
N.J.
at 338,
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Ibid, (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 101(b), 008(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
Those standards have been explicated through their application.
In respect of the first
Cofield
prong, “the evidence of the prior bad act, crime, or wrong must be relevant to a material issue that is genuinely disputed.”
Covell, supra,
157
N.J.
at 564-65,
The second prong, which requires that the other-crime evidence be similar in kind and reasonably close in time to the alleged crime, is implicated only in circumstances factually similar to
Cofield. See, e.g., State v. Gillispie,
208
N.J.
59, 88-89,
The third
Cofield
prong “requires that the judge serve as gatekeeper to the admission of other-crime evidence” and ensure
that proof of the prior bad act is demonstrated by clear and convincing evidence.
Hernandez, supra,
170
N.J.
at 123,
Finally, the fourth
Cofield
prong requires that “[t]he probative value of the evidence must not be outweighed by its apparent prejudice.”
Cofield, supra,
127
N.J.
at 338,
Finally, if the State adequately “demonstrate^] the necessity of the other-crime evidence to prove a genuine fact in issue and the court has carefully balanced the probative value of the evidence against the possible undue prejudice it may create, the court must instruct the jury on the limited use of the evidence.”
Cofield,
127
N.J.
at 340-41,
That framework for a Rule 404(b) analysis guides this review of defendant’s challenge to the admissibility of his rap lyrics in his criminal trial.
IV.
While the direct parties to this appeal — the State and defendant — acquiesce to analyzing this case under the rubric of Rule 404(b), there is a debatable question whether artistic expression about crimes or bad acts should be evaluated under N.J.R.E. 404(b) at all. In other words, can the act of writing about a crime or bad act be a bad act itself?
The Attorney General as amicus argues that defendant’s rap lyrics are not “crimes, wrongs, or acts” under
N.J.R.E.
404(b)
To be sure, writing rap lyrics — even disturbingly graphic lyrics, like defendant’s — is not a crime. Nor is it a bad act or a wrong to engage in the act of writing about unpalatable subjects, including inflammatory subjects such as depicting events or lifestyles that may be condemned as anti-social, mean-spirited, or amoral. However, the very “ ‘purpose of
Rule
404(b) is simply to keep from the jury evidence that the defendant is prone to commit crimes or is otherwise a bad person, implying that the jury needn’t worry overmuch about the strength of the government’s evidence.’ ”
Rose, supra,
206
N.J.
at 180,
Rule 404(b) serves as a safeguard against propensity evidence that may poison the jury against a defendant. Violent, degrading rap lyrics, of the type authored by defendant, have the capacity to accomplish just that. Not all members of society recognize the artistic or expressive value in graphic writing about violence and a culture of hate and revenge. Thus, the purpose of N.J.R.E. 404(b) is advanced by its application in a setting such as this. 5
Furthermore, our analysis in
Koskovich, supra,
recognized the value of using the
Rule
404(b) approach even where the evidence sought to be admitted is “not overtly criminal in nature.” 168
N.J.
at 483,
Finally, this appeal comes before us on the basis of a
Rule
404(b) objection by
V.
A.
To assess the admissibility of defendant’s rap lyrics under N.J.R.E. 404(b), we turn to each of the Cofield prongs. 6
The first
Cofield
prong requires that the other crime, wrong, or bad-act evidence pertain to a material issue in dispute.
Covell, supra,
157
N.J.
at 564-65,
The effect of defendant’s rap lyrics was simply to bolster the State’s motive theory, which was already supported by Peterson’s testimony that defendant was the enforcer for Rothwell, who was being cheated by Peterson. As the Appellate Division succinctly stated, “[t]o the extent the lyrics depicting defendant as an enforcer and hit-man had any relevance beyond demonstrating his criminal propensity and depravity, it was to add weight to Peterson’s testimony that defendant played that role for Rothwell.” This Court has repeatedly discouraged the use of other-crime evidence merely to bolster the credibility of a testifying witness.
See, e.g., State v. Darby,
174
N.J.
at 520-21,
As for intent, defendant did not advance any evidence calling into question that Peterson’s shooter had intended to kill him. The sheer number of times and places that
Furthermore, defendant’s rap lyrics only bear on the material and disputed issue of motive if one believes that those lyrics, many of which were written long before the time of Peterson’s shooting, specifically relate to defendant’s motive on the evening Peterson was shot and almost killed. The third Cofield prong requires that proof of the prior-crime evidence be demonstrated by clear’ and convincing evidence. See Hernandez, supra, 170 N.J. at 123, 784 A.2d 1225. Yet, there was no evidence that the crimes and bad acts about which defendant wrote in rap form were crimes or bad acts that he in fact had committed. Indeed, there is an utter absence of clear and convincing evidence, as required under prong three of Cofield, that defendant engaged previously in any of the events portrayed in his rap lyrics. The lyrics can only be regarded as fictional accounts. The State has produced no evidence otherwise.
Most importantly, the fourth Cofield prong requires that the probative value of the lyrics not be outweighed by their prejudicial effect. We before quoted at length several verses of defendant’s rap lyrics, chosen because they exemplified the lyrics’ glorification of violence and death, and defendant’s apparent disregard for human suffering. More pointedly, the Appellate Division appropriately singled out a portion that particularly might have prejudiced the jury against defendant because of its apparent similarity to the type of shooting inflicted on Peterson:
To illustrate the risk of extreme prejudice, we refer to a portion of [aj lyric ... “Got Beef, I can spit from a distance for instance; a [person] wouldn’t listen so I hit him with the Smithern; hauled off 15 rounds, seven missed him; Two to the mask and six to the ribs, lifted and flipped him.” This lyric describes a shooting resembling Peterson’s in that it involved multiple gun shots delivered to the head, “the mask,” and chest, “the ribs,” and the shooting was motivated by the victim’s failure to listen. The jurors were left to speculate that defendant had done such things even though there was no evidence to suggest that his writing was anything other than fiction.
In this case, defendant’s graphically violent rap lyrics could be fairly viewed as demonstrative of a propensity toward committing, or at the very least glorifying, violence and death. That prejudicial effect overwhelms any probative value that these lyrics may have. In fact, we detect little to no probative value to the lyrics whatsoever. The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff,
or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic
B.
Our approach is in accord with other jurisdictions that have considered similar questions. For example, in
Greene v. Commonwealth,
Similarly, in
Bryant v. State,
Unlike here, the lyrics admitted in Greene and Bryant exhibited an unmistakable factual connection to the charged crimes. Had defendant in this case rapped for seven minutes about murdering a man named “Peterson,” or described in his rap lyrics the exact manner in which Peterson was to be killed, his writings would obviously hold more probative value. But absent such a strong nexus to defendant’s charged crime, his fictional expressive writings are not properly evidential.
Our sister jurisdictions rarely have admitted a defendant’s rap lyric compositions into evidence without a demonstration of a strong nexus between the subject matter of the lyrics and the underlying crime.
See, e.g., Hannah, supra,
420
Md.
339,
In
Hannah, supra,
the Maryland Court of Appeals concluded that rap lyrics, authored by the defendant and offered into evidence by the State, “served no purpose other than the purpose of showing the [defendant] has a propensity for violence.”
In Hanson, supra, a Washington appellate court rejected “the proposition that an author’s character can be determined by the type of book he writes.” Id. at 1145. The court reversed the defendant’s conviction based on the prosecution’s improper questioning of the defendant about his violent, fictional writings. Id. at 1144-45. However, in a footnote, the court noted that “[tjhere may be instances when a defendant’s fictional writings would be admissible____ In this case, the State never indicated how the defendant’s writings were logically relevant under [Rule ] 404(b).” Id. at 1144 n.7.
In sum, it is clear that other jurisdictions rarely admit artistic works against a criminal defendant where those works are insufficiently tethered to the charged crime. The upshot to this approach is that, without a strong connection to the attempted murder offense with which defendant was charged, the admission of defendant’s rap lyrics risked unduly prejudicing the jury without much, if any, probative value.
C.
N.J.R.E. 404(b) analyses are fact-sensitive. Their outcomes depend on the evidence proffered and the facts and nature of the ease against the defendant. The recitation of eases from other jurisdictions reflects the difficulty of pronouncing a hard and fast rule to govern the admission of rap lyrics. That said, extreme caution must be exercised when expressive work is involved, particularly when such expression involves social commentary, exaggeration, and fictional accounts.
In this instance, we are persuaded that the Appellate Division correctly reversed defendant’s conviction. We hold that the violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged. Less prejudicial evidence was available to the State on both motive and intent. The admission of defendant’s rap writings bore a high likelihood of poisoning the jury against defendant, notwithstanding the trial court’s limiting instruction.
The use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution. Self-expressive fictional, poetic, lyrical, and like writings about bad acts, wrongful acts, or crimes generally should not be deemed evidential unless the writing bears probative value to the underlying offense for which a person is charged and the probative value of that evidence outweighs its prejudicial impact. In the weighing process, the trial court should consider the existence of other evidence that can be used to make the same point. If admitted, courts are cautioned to redact such evidence with care. In conclusion, we hold that rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence’s probative value is not outweighed by its apparent prejudice.
Because our holding based on the introduction of defendant’s rap lyrics will require his retrial, we add only this in respect of defendant’s claim of prosecutorial excess in summation. On retrial, the State is cautioned that a prosecutor’s summation should not employ language designed to stoke a jury’s fear for the future of its community or make an inflammatory argument akin to a “call to arms.”
State v. Marshall,
123
N.J.
1, 161,
VII.
The judgment of the Appellate Division is affirmed.
For affirmance — Chief Justice RABNER, Justices LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, RODRÍGUEZ (temporarily assigned) — 6.
Not Participating — Judge CUFF (temporarily assigned) — 1.
Opposed — None.
Notes
Peterson actually stated that "Devonte” was the shooter. "Devonte” is an alias used by defendant.
Rothwell was initially charged as a codefendant, but the charges against him were dropped because Peterson refused to testify against Rothwell, reportedly because Rothwell is the father of Peterson’s cousin’s child.
In fact, the car was registered to the mother of defendant’s girlfriend.
Defendant's death sentence was set aside by this Court and the matter was remanded for a new penalty phase trial.
Id.
at 541-42,
Of course, rap lyric evidence that provides direct proof against a defendant— such as an admission or details that are not generally known and dovetail with the facts of the case — should be analyzed for relevance under
NJ.R.E.
401 and evaluated under
N.J.R.E.
403's standard for prejudice, and not the standard for prejudice under a
Cofield
analysis.
Cf. Rose, supra,
206
N.J.
at 180,
The second prong, which requires that the other-crime evidence be similar in kind and reasonably close in time to the alleged crime, is implicated in circumstances factually similar to Cofield. That prong is not implicated in these circumstances. Therefore, we do not address it in our analysis.