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Music or Criminal Mischief

You are sitting at trial accused of Criminal Mischief. Someone keyed your ex-boyfriend's car and broke both of his headlights. After your messy breakup, you were the natural suspect. The evidence is skimpy, but then the prosecutor pulls out your Iphone and starts playing Carrie Underwood's "Before He Cheats." She urges the jury to listen to the lyrics. "I dug my keys into the side of his pretty little supped up 4-wheeldrive, carved my name into his leather seats. Took a Louisville Slugger to both headlights. I slashed a hole in all four tires. Maybe next time he'll think before he cheats." The fact that you have a song about getting revenge on an ex-boyfriend by destroying his car, she argues, is evidence of your guilt. This may seem like an absurd situation, but it is exactly what happened to Anthony DeLeon.

Anthony DeLeon was on trial for Gang AssaultThe prosecutor in his case introduced songs from his cell phone by a band, Los Tigres Del Norte, that he claimed was evidence of gang involvement. DeLeon was convicted and his appeal went all the way to the Washington State Supreme Court.

The Washington Supreme Court reversed the conviction. The court was troubled by the introduction of the music on DeLeon's phone. The court noted that, "Los Tigres Del Norte has been one of the more prominent bands in Latin music for decades...There is no support in the record for the contention that enjoying their music is evidence of gang involvement."

At least one court in New York reached a different conclusion. In People v. Wallace, the court allowed the prosecutor to introduce evidence that right after a homicide, the defendant listened to his favorite rap song, "How I Could Just Kill A Man." (Number 77 on About.Com's top 100 rap songs). The court ruled that the fact that the defendant listened to that particular song was evidence of the defendant's consciousness of guilt. 

The Washington court got it right. Whether Criminal Mischief or Murder, the music that someone listens to is evidence of nothing more than his choice in music. Any other result would turn the Beatles' "I Saw Her Standing There" from the 140th best song in Rolling Stone Magazine's top 100 songs, to evidence of sexual assault against a minor.

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Douglas Schneider was awarded Super Lawyers Rising Stars 2013 - 2015.