The Art of the Self-Snitch: Rap Lyrics, Admissibility, and the Hearsay Rule
- Featured in Robson Crim
- 11 minutes ago
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By: Meagan Gillis and William Ho
Rap snitches, telling all their business
Sit in the court and be their own star witness
“Do you see the perpetrator?” “Yeah, I’m right here”
**** around, get the whole label sent up for years, uh[i]
Introduction
MF DOOM’s “Rapp Snitch Knishes” highlights the absurdity of rappers who choose to confess to their crimes through their music. While “confessions” may be found across many art forms, this practice is especially prevalent within the context of “Gangsta Rap”, a rap sub genre characterized by accounts of violence, crime, and exaggerations of rapper persona.[ii]
Gangsta Rap’s tendency to exaggerate criminal activity leads to issues of reliability. How truthful are these stories? Can we reliably take these lyrics as fact? In the context of prosecution, a key question arises: can rap lyrics be used to establish criminal liability notwithstanding the reliability issues from exaggeration?
This blog post aims to discuss when rap lyrics are admissible as evidence within the context of hearsay. It also aims to provide commentary on the emergence of this hearsay issue and reflect on the balance between artistic expression and criminal liability.
Legal Context, R v McCullough and Commentary
Legal Context
The basic rule of admissibility requires all evidence to be relevant to a material issue in the case.[iii] This basic rule is further divided into materiality and relevance. If the evidence meets the basic rule, it will be admissible unless it falls under an exclusionary rule, such as hearsay.
In the context of lyrics, if the accused chooses not to testify, and the prosecution seeks to admit the accused’s “confession” lyrics as evidence for the truth of its content, the lyrics would be considered hearsay as they are out-of-court statements.[iv] As identified in R v Baldree, hearsay is presumptively inadmissible as a matter of law;[v] thus, the lyrics would be presumptively inadmissible.
The hearsay rule exists because of the “difficulties inherent in testing the reliability of the declarant’s assertion.”[vi] However, additional concerns underpin the rule, specifically, the declarant's perception, memory, narration and sincerity.[vii] Especially within Gangsta Rap, the reliability and sincerity of the lyrics may be questionable due to the tendency to exaggerate one’s criminal activity in the pursuit of establishing a “good” reputation.[viii]
While hearsay is presumptively inadmissible, the presumption can be overcome when the prosecution either establishes a categorical hearsay exception, or utilizes the principled exception to hearsay by showing necessity and reliability.[ix] Under the principled exception, the evidence must (1) reasonably necessary and (2) meet threshold reliability requirement.[x] The necessity requirement goes to the availability of evidence in combination with its use in proving a fact in issue.[xi] Threshold reliability consists of substantive and procedural reliability, which work together to satisfy threshold.[xii] Substantive reliability refers to scenarios where the statement sought to be admitted is inherently trustworthy due to the circumstances under which it arose.[xiii] For example, if, under the circumstances, the declarant had no motive to lie, made the statement unprompted, or if there was corroborating evidence; though this is a non-exhaustive list.[xiv] Procedural reliability refers to scenarios where the statement sought to be admitted can be sufficiently tested by other “means”.[xv] For example if the statement was made under oath, audiotaped, or if there are opportunities for cross-examination.[xvi] Threshold reliability can be met by a combination of procedural and substantive reliability.[xvii]
R v McCullough, 2021 ONCA 71
To illustrate the principled hearsay exception in the context of rap lyrics, R v McCullough provides a factual backdrop against which we can apply the exception.
Facts
In McCullough, there was no doubt that the accused killed the victim.[xviii] McCullough testified that he and the deceased had planned to commit a home invasion, but when the deceased made a sexual advance towards him, McCullough defended himself by stabbing the deceased, killing him.[xix] No other parties were in the room at the time of the killing.[xx] Two key pieces of evidence at the trial level were testimony from McCullough’s psychiatric nurse and a rap McCullough had written before the killing.[xxi]
The main issue at the trial level dealt with the mens rea of first-degree murder, specifically whether the killing was planned and deliberate.[xxii] At the trial level, the accused was convicted of first-degree murder where it seems that the jury gave a guilty verdict based on McCullough’s rap lyrics.[xxiii]
On appeal, one of the main issues was whether the trial judge erred in admitting rap lyrics as proof of the accused’s desire to commit cannibalism.[xxiv] The appellant argued the rap lyrics were prejudicial and should have been excluded on the basis of a weak connection between the lyrics and the charge.[xxv] The ONCA found there was no error and dismissed the appeal.[xxvi]
Analysis
Although only the outcome of the voir dire is available, considering the ONCA’s affirmation of the trial judge’s decision suggests that the rap lyrics were admissible. As such, the trial judge must have found the basic rule of admissibility satisfied, in addition to the principled hearsay exception, as currently, there is no categorical exception for rap lyrics. The following section applies the rules of evidence.
In McCullough, both necessary conditions of the basic rule of admissibility were satisfied. The rap lyrics satisfied materiality because they were directed at the live issue[xxvii] of whether the killing was intentional, planned, and deliberate.[xxviii] The lyrics satisfied relevance because they could speak to McCullough’s state of mind, advancing the proposition that the murder was planned and deliberate.[xxix]
Turning to the principled exception, necessity is easily established. Considering that McCullough was alone with the victim during the killing, there is no other evidence that could speak to McCullough’s state of mind aside from the rap lyrics. However, reliability is more challenging to establish. Meeting threshold reliability would rely on a strong finding of substantive reliability as procedural is not necessarily pertinent. In terms of substantive, the circumstances that gave rise to the lyrics may favour a finding of reliability. Specifically, the rap lyrics were written for McCullough himself, akin to a diary, suggesting there was no motive to lie. However, the rap lyrics were not contemporaneous with the crime, reducing substantive reliability. Ultimately, the trial judge admitted the lyrics but limited their use to the issue of motive.[xxx]
Commentary
McCullough adds to the growing jurisprudence of cases considering rap lyrics and criminal liability. Prior to McCullough, R v Terry of the SCC was one of the first cases to discuss artistic expression as an admission against interest.[xxxi] Terry regarded poems as having low probative value, pointing to the variety of motivations for expressing oneself.[xxxii] However, Terry found that low probative value could be overcome by the trial judge’s ability to limit what the evidence may be put to.[xxxiii] The outcome in Terry suggests admission of artistic expression may be appropriate when balanced by careful jury instruction.
McCullough is also preceded by R v Skeete which specifically considered rap lyrics and admission. Skeete reinforced the concerns of admitting artistic expression noting,
Artistic expression is different in the sense that simply because an author has chosen to write about certain topics, it may not be reasonable to infer that he or she holds or acts in accordance with those views… It logically follows that we ought not to be too ready to embrace lyrics as a basis upon which to infer a particular state of mind in their author.[xxxiv]
However, Skeete also introduced consideration of the nexus between the lyrics sought to be admitted and the offence with which the accused was charged.[xxxv] Skeete suggests that where the nexus is supported by a temporal connection and a causal link, the evidence may have higher probative value.[xxxvi]
The case law analyzed above demonstrates that reliability must be approached cautiously when examined within the context of artistic expression. As highlighted by Skeete, there are significant limitations to using lyrics to infer mental state. The motivations behind artistic expression may not represent the author’s personal intention. Reliability in Gangsta Rap is further complicated by the nuance of rap culture and the general practices of the art form.[xxxvii]
Furthermore, a trend towards greater admission of rap lyrics may have a chilling effect within the rap community, and more broadly on artistic expression. This effect may also disproportionately impact specific demographic groups, though greater intersectional analysis would be required.[xxxviii] With these concerns in mind, Canadian courts are unlikely to recognize a categorical exception. The nuance of rap conforms better with the principled exception.
Conclusion
This blog post discusses when rap lyrics are admissible as evidence within the context of hearsay. McCullough demonstrates that where rap lyrics satisfy the requirements of relevancy and materiality, they can be admitted proving trial issues through the principled exception to hearsay. Though, Skeete cautions that artistic expression may not truly represent an accused’s state of mind. Future research could consider the Canadian legal context and analyze the law’s interaction with specific art forms (like rap) and demographic groups, and how these interactions impact legal outcomes.
Endnotes
[i] “Rapp Snitch Knishes” (music) Rhymesayers Entertainment LLC, USA USBWK0700049 (16 November 2004).
[ii] Charis E. Kubrin & Erik Nielson, “Rap on Trial” (2014) 4 Race & Justice 185 at 197.
[iii] R v Candir, 2009 ONCA 915 at para 46–50, online: CanLII https://canlii.ca/t/2754; see also R v Zeolkowski, [1989] 1 SCR 1378 at 1386–1387, 1989 CanLII 72 (SCC), online: CanLII https://canlii.ca/t/1ft57.
[iv] R v Evans, [1993] 3 SCR 653 at 661, online: CanLII https://canlii.ca/t/1frzq.
[v] R v Baldree, 2013 SCC 35 at para 2 [Baldree], online: CanLII https://canlii.ca/t/fz7b7.
[vi] Ibid at para 31.
[vii] Ibid.
[viii] Kubrin & Nielson, supra note ii at 197.
[ix] R v Khan, [1990] 2 SCR 531 at 540-548, 1990 CanLII 77 (SCC) [Khan], online: CanLII https://canlii.ca/t/1fsvb.
[x] R v Smith, [1992] 2 SCR 915 at 933-934, 1992 CanLII 79 (SCC), online: CanLII https://canlii.ca/t/1fs9x.
[xi] Ibid at 933.
[xii] R v Bradshaw, 2017 SCC 35 at para 32 [Bradshaw], online: CanLII https://canlii.ca/t/h4jxt.
[xiii] Ibid at para 62.
[xiv] Khan, supra note ix at 548.
[xv] Bradshaw, supra note xii at para 63.
[xvi] R v Khelawon, 2006 SCC 57 at para 69, online: CanLII https://canlii.ca/t/1q51r.
[xvii] Bradshaw, supra note xii at para 63.
[xviii] R v McCullough, 2021 ONCA 71 at para 1 [McCullough], online: CanLII https://canlii.ca/t/jcxs8.
[xix] Ibid at para 20.
[xx] Ibid.
[xxi] Ibid at para 15–17.
[xxii] Ibid at para 20.
[xxiii] Ibid at para 2.
[xxiv] Ibid at para 30.
[xxv] Ibid at para 65.
[xxvi] Ibid at para 3.
[xxvii] R v B(L), 1997 CarswellOnt 2711 at para 16, 1997 CanLII 3187 (ON CA), online: CanLII https://canlii.ca/t/6hbz.
[xxviii] McCullough, supra note xviii at para 52.
[xxix] Ibid at para 68; see also R v Arp, 1998 CanLII 769 (SCC) at para 38.
[xxx] McCullough, supra note xviii at para 74.
[xxxi] R v Terry, 1996 CanLII 199 (SCC) at para 28 [Terry], online: CanLII https://canlii.ca/t/1fr9t; see also R v Nguyen, 2023 BCSC 2316 at para 392, online: CanLII https://canlii.ca/t/k264p.
[xxxii] Terry, ibid at para 28.
[xxxiii] Ibid.
[xxxiv] R v Skeete, 2017 ONCA 926 at para 156, online: CanLII https://canlii.ca/t/hp1nx.
[xxxv] Ibid at para 187.
[xxxvi] Ibid at para 188.
[xxxvii] Paige Walker, “Restricting The Use of Rap Lyrics as Evidence in Courts: A Targeted Approach to Tackling Discrimination in Criminal Procedure” (2024) 28:2 Lewis & Clark L Rev 431.
[xxxviii] This topic has been explored in several articles, see also Cate Byrne, “Rap, Race, and Capital Prosecution” (2025) 51:1 Am J Crim L 89; See also Ayush Sanghavi, “Giving rap a chance: the cultural policing and consequences of the suppression of rap music in England in the twenty-first century” (2025) 52:2 J L Society 181 at 192.
