UNITED STATES OF AMERICA v. LARRY MILAN RECIO
US Court of Appeals for the Fourth Circuit, Motz, March 7, 2018,
Evidence – Hearsay – A defendant who posted a song lyric on Facebook may be considered to have “adopted” it where the lyric has independent meaning and stands alone without commentary.
Facts:
In 2015, PG County officers observed Recio, a known person, with a gun sticking out of his waistband. Recio threw the gun and ran, escaping the officers. The officers recovered the gun and Recio was arrested a month later.
In 2016, prior to trial, Recio posted on his Facebook account the following: “It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!” “The post, which contained no quotation marks or attribution to another author, closely mirrors lyrics to a rap song, Get it in Blood by Bloody Jay. In relevant part, the rap song’s lyrics are: ‘it’s always tucked, cause I’ll be damned if I get my life took.'”
At trial, along with its other evidence the government was allowed to use the Facebook post against Recio.
Hours after deliberation began, the jury sent back a note that it was deadlocked, unable to reach a verdict. Recio requested a mistrial, which was denied. Instead, the trial judge read the jury a modified “Allen” charge and sent them home for the day. The next day, the jury voted unanimously to convict Recio.
Recio appealed, arguing that his Facebook post should not have been allowed and that his mistrial should have been granted after the jury came back deadlocked.
Held:
The 4th Circuit held that the trial court was not wrong in allowing the jury to decide whether Recio “adopted” the song lyric. It also held that the judge was not wrong in not declaring a mistrial for a deadlocked jury hours after deliberation began.
Hearsay – Hearsay is a statement (something said/written/done to get a point across), outside of trial, offered into evidence in order to prove that what the person “said” (or wrote or did) was true.
Hearsay – For something to be “hearsay,” it must: 1) be a “statement” (an assertion of fact) and 2) be offered at trial to prove the truth of that statement
Evidence – Hearsay – As a general rule, hearsay is not allowed in a trial because 1) it is unreliable and 2) the Sixth Amendment gives a defendant the right to confront witnesses against him
Hearsay – Exceptions- Under certain circumstances, hearsay may be allowed a trial where it is more reliable and there is no Sixth Amendment issue
Hearsay – Party Opponent Exception – One exception to the hearsay rule allows into evidence a statement from a party opponent
Hearsay – Party Opponent- A statement can be allowed in evidence if it was either made by the party opponent or the party opponent “adopted” the statement (echoed the statement or showed that they also believed the statement)
Hearsay – Party Opponent- Adopted Song Lyrics – “People may quote song lyrics to provide criticism or commentary, to relay the lyrics to others, or simply because they like the song. But in some instances, people quote lyrics because they wish to express a certain view and believe that the words of an artist — including a rap musician — express that view especially effectively.”
Hearsay – Adopted Song Lyrics- Whether someone has adopted lyrics as his own statement thus depends on the particular facts of each case.
From the Case: The Court found that the trial judge did not err in allowing the jury to decide whether Recio “adopted” the rap lyrics’ meaning when he wrote “It’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!” The Facebook post did not contain any attribution or commentary about the rap lyric, indicating that Recio was criticizing it or using the lyrics for any other reason other than adopting its meaning. Moreover, Recio slightly changed the meaning of the original lyric, possibly indicating even further adoption of what he wrote (“my life get took” could indicate avoidance of chance while “I get my life took” could put the burden on the individual to be responsible for his own protection). The facts here were sufficient for a jury to infer that Recio adopted the rap lyric as his own statement.
From the Case: For example, a person who sings along to a Bob Marley song would not necessarily have the lyric “I shot the sheriff” introduced against him at trial. Whether the statement could be used would depend on the circumstances. One person might sing along to Bob Marley and no more, while another might use the same lyric to brag about actually having shot a sheriff. In a case from the 5th Circuit, a defendant convicted of murdering a deputy sheriff sang “I shot the sheriff, but in my case it was the deputy” while in jail. This showed that he adopted the lyric as his own and thus that could have been used against him at trial.
Relevance – Evidence must be relevant to be admitted at trial. Evidence is relevant if it “has any tendency to make a consequential fact more or less probable than it would be without the evidence.”
Relevance – Lyrics – Lyrics posted or authored by a defendant can be relevant if they match details of the alleged crime.
For Example: Lyrics describing “jacking” a necklace in a parking lot while wearing a ski mask would be relevant to show that the defendant stole a necklace in a parking lot while wearing a ski mask
Relevance – Lyrics – Lyrics can also be relevant to show knowledge or motive.
For Example: A defendant’s recordings about dealing cocaine could be relevant to his knowledge and motive, because they “tended to show that he knew cocaine prices, used drug code words, and sold drugs to supplement his income.”
From the Case: “The rap lyric in this case was relevant to both Recio’s alleged conduct (carrying a gun) and his motive for doing so (to protect himself). The phrase “It’s Always Tucked” suggested that Recio had always carried a gun tucked into his waistband, which made it more probable that he did so on May 15, 2015. And the phrase “Kuz I’ll B Damn If My Life Get Took” was relevant because it indicated that Recio had carried a gun for self protection, which made the fact that he “always” carried a gun more probable. Although reasonable minds could also interpret the lyric otherwise, that only affects the weight of the evidence, not its admissibility. We therefore conclude that the Facebook post was relevant.”
Prejudice – Evidence is not allowed if it is unfairly prejudicial to the defendant (its prejudice outweighs its worth).
Prejudice – Lyrics – Song lyrics cannot be admitted if they are used primarily to show that the defendant is a bad person rather than to prove something relevant to the case
For Example: A rap video was not admissible because the fact that it “contained violence, profanity, sex, promiscuity, and misogyny” was “heavily prejudicial” and the video had “minimal” probative value to the alleged drug and money laundering crime at issue.
From the Case: “The Government introduced a rap lyric consisting of a single sentence that described only the type of conduct of which Recio is accused — carrying a gun — and a reason for doing so — self-protection.” The lyric “referred to no other, irrelevant behavior, like threatening the police or degrading women, that would have unfairly caused the jury to see Recio as a culpable person. Accordingly, the risk of unfair prejudice did not substantially outweigh the probative value of the Facebook post.”
Authentication – The government must prove that the evidence it intends to use is what the government says that it is
Authentication – The amount of evidence required to show this is “not high” and only needs to be enough that the finder of fact could decide that the evidence was authentic (not enough that it must decide that it is authentic)
From the Case: the Government presented a certification by a Facebook records custodian, showing that the Facebook record containing the post was made “at or near the time the information was transmitted by the Facebook user.” And the Government sufficiently tied that “Facebook user” to Recio by showing that: (1) the user name associated with the account was “Larry Recio,” (2) one of the four email addresses associated with the account was “larryrecio20@yahoo.com,” (3) more than one hundred photos of Recio were posted to the account, and (4) one of the photos posted to the user’s timeline was accompanied by the text “Happy Birthday Larry Recio.”
Authentication – Social Media – Without evidence that someone else accessed the defendant’s Facebook account, there is no requirement that the government disprove that this is what happened
Other Bad Acts – Evidence that is used to show that the defendant probably committed the crime because he’s committed other crimes in the past is not allowed at trial.
From the Case: Ricio’s statement that, “it’s Always Tucked, Kuz I’ll B Damn If My Life Get Took!!” was not a statement of other bad acts. Because “always” would include the time he was seen by police with a gun on him, this is evidence about the crime itself and not “other” times he’s had a gun.
Mistrial – A trial judge is not required to declare a mistrial the first time a jury indicates that it is deadlocked