“The Court should start from the presumption that art is art, not a statement of fact”


Vincent Van Gogh summed up an artist’s inspiration: “You have to start by experiencing what you want to express”. But while many artists base their art on experience, they embellish, modify or distort their experience for the purposes of their craft as well. The question before the court is whether a party can use an artist’s expressions against him as proof of the truth. And the Court’s answer is: “Not always”.

In a society that treasures the expression of the First Amendment, courts should start with the presumption that art is art, not a statement of fact. To refute this presumption, the party offering the evidence must demonstrate that art is the artist’s attempt to tell a factual story. The mere fact that an artistic expression resembles reality is not enough because arguing otherwise would risk freezing the freedom of expression that is dear to our society.

Muadhdhin Bey-Cousin is one such artist. As a budding hip / hop rap artist, he released an album called “Caught by Da Fedz Vol. 1“as they face gun possession charges. Now, defendants Ernest Powell and Phillip Cherry want to use Mr. Bey-Cousin’s texts against him. But officers Powell and Cherry have not submitted enough facts to the court to refute the presumption that Mr. Bey-Cousin the witnesses are art. The Court will therefore exclude them from the trial in this case….

Late in the evening of March 28, 2016, two officers from the Philadelphia Police Department heard a request for support that included a description of a 160-170-pound, 21-year-old, light-skinned African American man with minimal hair wearing pants. dark blue and a red hooded sweatshirt (or red jacket). In response to that call, those officers, defendants Ernest Powell and Phillip Cherry, arrested Mr. Bey-Cousin, a 32-year-old, dark-skinned, 200-pound African American man with a long beard wearing black sweatpants and a red duvet. That arrest led to his arrest and conviction in federal court for being a criminal in possession of a firearm. Mr. Bey-Cousin remained in prison from March 28, 2016, until December 2018, when the Third Circuit overturned the sentence. Mr. Bey-Cousin claims that agents Powell and Cherry placed a firearm on him during his arrest. In his complaint, he claims violations of 42 USC § 1983 for willful persecution and willful use and abuse of process….

Agents Powell and Cherry claim that the songs describe the facts in question and suggest that the court allow them to cross-question Mr. Bey-Cousin about the lyrics. Officers Powell and Cherry also argue that the jury should listen to Mr. Bey-Cousin’s lyrics to assess Mr. Bey-Cousin’s claim based on damage to his career….

Under Federal Rule of Evidence 104 (a), a court must decide any preliminary question about the admissibility of evidence. Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence”. When the relevance of evidence depends “on whether or not a fact exists, sufficient evidence must be introduced to support the conclusion that the fact exists”. The parties have not identified, and the judge has not ascertained, a case that sets out a rule to determine when artistic expression is relevant. In determining whether an artistic expression is relevant, the Court finds guidance in Federal Rule of Evidence 102, which orders courts to interpret the Rules of Evidence “so as to fairly administer all proceedings … in order to ascertain the truth. and ensure only one determination.

These rules require the court to assume that the artistic expression is not factual, for two reasons. Artists may base their work on real life, but they take creative liberties that blur the line between reality and fiction. Embellishments and elements of fantasy pervade, even as the artist draws on real-world experience for inspiration. Therefore, the introduction of artistic expression as an admission to the party will often not help to ascertain the truth.

Also, if budding artists or performers know that their expression could put them in legal danger, they might put down their pens, put their brushes in their pockets, or bite their tongues. As a society, we encourage this type of expression. A rule that discourages him would not be fair, neither to parties nor to the general public. The Court recognizes that starting from the presumption that artistic expression is not a de facto admission could in some cases lead to the exclusion of admissible evidence. But the First Amendment requires no less.

To overcome this rule, the trial proponent must offer some preliminary clues that the artistic expression is a truthful narrative, such as the inclusion of factual details that are not publicly available. In an effort to cope with that burden, Agents Cherry and Powell point to the “seemingly autobiographical details involving the arrest and prosecution involved in this case.” But their own words betray them: an “apparently” autobiographical work is not necessarily autobiographical.

First, it is not enough to show that an artist has used the first person. Artists use the first person as a tool of creative expression, sometimes to describe themselves, sometimes to describe a fictionalized version of themselves, sometimes to describe a fictional character. Freddy Mercury did not confess that he “just killed a man” by putting “a gun to his head” and “pulling him off”.[ing] “Bob Marley didn’t confess shooting a sheriff. And Johnny Cash didn’t confess shooting” a man in Reno just to watch him die. “

According to, it is not enough to show that an artist’s expression bears some resemblance to real-life events. The writers tore the Law & Order scripts off the titles, but denied: “The following story is fictional and does not describe any real person or event.” The people v. OJ Simpson Other The assassination of Gianni Versace, two American Crime Stories, depicted real events, but they weren’t necessarily factual remakes.

ThirdIt is not even enough to show that an artist has written firsthand about events that resemble real life. Examples abound. In the television series The Goldbergs, Adam Goldberg chronicles his childhood exploits, with video excerpts at the end showing the real-life events that inspired the episode. However, no one understands that the show is an accurate representation of events. The film Captain Phillips depicts acts of heroism, but at least some reports suggest it embellishes events to favor Captain Phillips himself. Likewise, Eight miles it appears to be an account of Eminem’s youth in Detroit, but is actually a fictionalized account that has parallels to his actual experience. And musically, when Calvin Broadus (aka Snoop Dogg) released “Murder was the case“After his trial for the murder of a rival gang member, he did not suggest confessing a different version of events than the one he presented at trial.

Officers Cherry and Powell argue that the court should allow the jury to determine whether Mr. Bey-Cousin’s lyrics are real or fictional. But doing so would not be a search for the truth. Instead, it would be a test of an artist’s trial, asking the jury to decide where the boundary between inspiration and narration lies. Article 102 does not address this procedural issue. Nor does Federal Rule of Evidence 403, which allows a court to rule out otherwise relevant evidence if the danger of undue delay and loss of time substantially outweighs the probative value. The collateral investigation into Mr. Bey-Cousin’s artistic process would substantially exceed the probative value that his texts offer….

As a society, we have decided to encourage free expression in all its forms. The Court will not adopt a rule that would undermine this objective. Therefore, it adopts a rule that assumes that artists tell stories, even when they draw inspiration from reality. Agents Cherry and Powell have not overcome this burden, so the Court will accept Mr. Bey-Cousin’s motion and preclude proof of his witnesses….


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