True Evidence, True Law
There's been a lot of discussion about Leviathan's recent album, True Traitor, True Whore, and what that says about Wrest's current legal predicament. In case you're not aware, a former girlfriend has accused him of sexually assaulting her with a tattoo gun. (Wrest is the sole member of Leviathan
, and a tattoo artist.) I don't intend to go into questions of guilt, innocence, truth or falsehood of the allegations, or what really happened. What I do want to talk about is what Wrest is facing, and how his latest album could bear on those charges. It's an unusual intersection of two areas of my interest: metal and law.Given the charges he's facing, many are shocked at the album's quite frank comment. The title itself displays a possibly misogynistic attitude, and with song titles including "Harlot Rises", "True Whorror", and "Every Orifice Yawning Her Price", that doesn't appear to help matters much. Everyone knows that "what you say can and will be used against you in a court of law". But does this really get admitted into evidence?
I will make reference to the Federal Rules of Evidence. Although they are not the ones specifically applicable to the case, the rules in that jurisdiction are probably identical, more or less.
Hearsay
Ordinarily, you can't admit something someone has said as evidence. I could go on for pages and pages about all the specifics of that rule. Most law school evidence courses spend about half the time on it, so it is far more complicated than that. But the most important exception to that rule is that one party can introduce the other party's statements against them. Wrest can't introduce his own statements, but the state can introduce his statements against him.There are some limitations to that. If the state quotes him out of context, he can then introduce more of his own statement to put it in context. But more importantly to this case, there is the bar of relevance.
Relevance and Character Evidence
For all practical purposes, you can't admit any evidence that's irrelevant to the issues in the case. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Rule 401) So if he said something in the lyrics to indicate that he actually committed this crime, that evidence would get in. I highly doubt there's anything like that in there, so what else can we look for?
The song titles and album title seem to show a misogynistic attitude. That means it should be allowed in, to prove that he is the kind of person who would commit a sexual assault, right? No. Rule 404 codifies the principle that a person's character can't be used to prove conduct. Greedy people don't always steal, after all. And Rule 403 keeps out evidence if it is unduly prejudicial to one party or if it confuses the issues, and those concerns outweigh the evidence's value.However, there is an exception to that rule. An accused can offer evidence of his own character. If Wrest takes the stand, and tries to claim that he didn't do it because he's not the kind of person who would do that, then the prosecutor can rebut that evidence accordingly. Can you imagine them playing this whole album for the jury? So Wrest won't do that, if he does take the stand. He probably won't take the stand, because then the prosecution can introduce evidence of his character to discredit him as a witness, and such evidence could be very broad.
Ordinarily, evidence of a crime victim's character can also be offered by the accused. For instance, in a homicide case, the defendant could offer evidence of the victim's violent nature to help prove self-defense. But sex offenses are subject to several different rules, the rest of which probably aren't applicable to Wrest's case.
I've heard whispers that the alleged victim in this case had made prior allegations against other people. That kind of stuff would be admissible if she takes the stand. I think they'd have a hard time convicting without her testimony, so it's likely that will come out, if it goes to trial
Conclusion
So, it's not too crazy that Leviathan released this album at this time. It probably won't get admitted into evidence, and only would get in if he takes the stand, and even then, it could stay out if he's careful.All we can hope for is that the truth comes out in the end. I [w]rest my case. (You didn't really think you'd get away without seeing that pun, did you?)
This is a really awesome article, detailed enough to cover the major issues without getting bogged down with tons of rules that would bore nearly everyone to death.
ReplyDeleteSupposing Wrest introduced evidence of his own character and opened the door for the prosecution to rebut that evidence, do you think the album would then be admissible?
I think 403 would still act as a bar in such a circumstance. The sexual and arguably misogynistic words used in the song titles are extraordinarily prejudicial given the nature of the charges. The relevance of such evidence seems very attenuated as to whether Wrest actually committed the crime.
I doubt a judge would readily accept the argument that an artistic work with themes including sexuality and prostitution would have a tendency to make any material fact in a rape trial more or less probable. In other words I am saying the almost zero probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
Agreed, awesome article. Informative and level headed.
ReplyDeleteWell done, sir. I'm glad you went ahead with writing this beast.
ReplyDeleteI have thought this all along and glad someone with knowledge of the law chimed in. I would think one has the freedom to say whatever they want in a situation like this, as long as they don't mention the 'victim' by name. For all we know, the whole album was written about another woman.
ReplyDeleteThe crux of the argument would have to be that inclusion of the album as evidence would be unfairly prejudicial to Wrest, not just simply prejudicial. At least in Nebraska (which to those that don't know, both Full Metal Attorney and I practice in) "unfair prejudice" has been defined to mean a "tendency to suggest a decision on an improper basis". Benzel v. Keller Industries, 253 Neb. 20 (1997).
ReplyDeleteThat unfair prejudice must substantially outweigh the probative value of the evidence, so even if it is determined that the inclusion of the album as evidence is unfairly prejudicial, if those effects do not outweigh the probative value of the album enough, then the album would still get in. However it would be hard to argue that this would be the case in a situation where there is undoubtedly other evidence available, unless as suggested it is opened up by Wrest taking the stand.
Unfortunately, since this whole test is left entirely up to the judge's discretion, it is difficult to guess with any certainty what will happen. And appellate courts are unlikely to reverse it unless the trial judge abused his discretion.
Thanks for the very positive response. I really didn't think this would go over very well, so I had been holding onto a nearly completed article since mid-December.
ReplyDeleteTo slightly correct Metallattorney, I am currently on the inactive bar, so I am not practicing. I did, for a little over a year, focusing mostly on criminal defense and veterans' benefits.
I think what Metallattorney is alluding to is the fact that there are plenty of standards and there's a lot of case law on this issue, but in the end such decisions come down to the judge's gut feeling. They also take practical matters (like time) into account. So I don't think there's any situation where the whole album gets admitted into evidence, nor do I think that any audio would be admitted (unless the judge really has it in for him). If any of it does get in, someone would be testifying about what it says.
An interesting thought occurs to me, however, considering that he hasn't released lyrics. There could be a lot of interesting questions about HOW you submit evidence of the lyrics (surely the prosecution wouldn't be satisfied with a defense-provided lyric sheet). This is the only way I can see actual audio being admitted as evidence, in an effort to let the jury decide what they think it says.
And, just in case, please refer to the disclaimer (which is at the bottom of the page with the present blog layout).
Great article, thanks for writing! Do you know the status of the case; that is, is it awaiting trial? Thanks.
ReplyDeleteThanks! I haven't been able to find the status of the case or any recent news articles on it. I would think that if the whole thing was over, we would have heard something by now, so my guess is it's ongoing. These high-level felonies can sometimes take a couple years before trial, if indeed it goes to trial. Who knows--maybe they're litigating pre-trial motions on the very issues discussed here.
ReplyDelete