Rap-Song Audio Played by a Defendant Is Not “404(b) Other-Acts” Evidence Absent Plain, Clear, Conclusive Proof of Misconduct; Erroneous Admission May Be Harmless Where Independent Evidence Sustains the Verdict

1. Introduction

Keys v. State (Del. Dec. 9, 2025) arises from a January 2022 wave of shootings in Wilmington. The defendant, Kyair Keys, was tried in Superior Court on charges including attempted murder, two counts of first-degree assault, and numerous firearms offenses. The State’s proof included surveillance footage, ballistics, cell-site location evidence, and communications data.

The appeal presented a single evidentiary issue: whether the trial court abused its discretion by allowing the jury to hear the audio of an Instagram “live” recording depicting Keys in a vehicle (a stolen Dodge Charger) while a rap song played in the background. The State argued the lyrics (as interpreted by police) were relevant to identity and motive. Keys argued the audio was irrelevant and highly prejudicial.

2. Summary of the Opinion

The Delaware Supreme Court affirmed Keys’s convictions but held that the Superior Court abused its discretion by admitting the audio. The Court questioned the trial court’s decision to analyze the rap-song audio under D.R.E. 404(b) and stated the “better approach” would have been to exclude the evidence as irrelevant under D.R.E. 401 or, at minimum, as substantially more prejudicial than probative under D.R.E. 403.

Nonetheless, the Court held the error was harmless because the properly admitted evidence—surveillance, ballistics linking recovered firearms to casings from the shootings, and cell-site location data—was sufficient to sustain the convictions.

3. Analysis

3.1 Precedents Cited

• Morse v. State: Cited for the standard of review—admission of evidence under D.R.E. 404(b) is reviewed for abuse of discretion. This frames the appellate posture: the question was not whether the Supreme Court would have admitted the evidence, but whether the trial court exceeded reasonable bounds.
• McGuiness v. State (quoting Chaverri v. Dole Food Co.): Supplies the Delaware formulation of “abuse of discretion” (“exceeded the bounds of reason” or “ignored recognized rules of law or practice” producing injustice). The Court applied that concept to the mismatch between the rap lyrics and what Rule 404(b) requires.
• Stickel v. State: Reaffirms the foundational proposition that evidence must be relevant to be admissible (D.R.E. 402 / 401), which the Court used to show that the analysis should have started with relevance and D.R.E. 403 balancing rather than defaulting to 404(b).
• Getz v. State: The canonical Delaware framework for admitting “other crimes, wrongs, or acts” evidence under D.R.E. 404(b), including the requirement that the other act be proved by evidence that is plain, clear and conclusive. The Court used Getz to expose the central defect: the lyrics did not plainly attribute a concrete “crime, wrong, or other act” to Keys, especially where the song was authored/performed by someone else and did not describe a particular incident.
• DeShields v. State: Provides factors for the D.R.E. 403 balancing embedded in Getz. The Court’s analysis tracked key DeShields considerations—especially probative force, need for the evidence, and availability of less prejudicial proof—and concluded the probative force on identity was “particularly weak.”
• Buckham v. State: Cited for the principle that not all errors require reversal, serving as the bridge to harmless-error review.
• Taylor v. State (quoting Johnson v. State and Dawson v. State): Establishes Delaware’s harmless-error framework: (a) non-constitutional evidentiary errors are harmless when the properly admitted evidence is sufficient to sustain the conviction; (b) constitutional errors require proof beyond a reasonable doubt that the error did not contribute to the verdict. The Court classified the error here as non-constitutional.
• Charbonneau v. State: Cited as a caution that prejudicial use of evidence can sometimes rise to a due-process violation, even if framed as an evidentiary issue. The Court flagged this principle but held the error in Keys’s case remained non-constitutional and harmless.

3.2 Legal Reasoning

A. The Court’s skepticism that D.R.E. 404(b) fit at all

The Supreme Court’s most doctrinally important move was its threshold critique: the rap-song audio did not naturally present “evidence of a crime, wrong, or other act” by Keys. Even accepting the detective’s “translation,” the lyrics at most suggested group affiliation and firearm possession (“draco”). This matters because 404(b) is triggered by “other act” evidence and policed through Getz prerequisites; where the “act” is undefined or speculative, 404(b) becomes an ill-fitting mechanism that risks laundering propensity inference into “identity.”

B. Relevance and unfair prejudice should have driven the analysis

The Court indicated the trial court’s own observations—no link between the performer and Keys, no particular incident described, and “really no evidence” Keys did what the lyrics referenced—should have prompted a direct D.R.E. 401/403 inquiry: does this audio make identity in the charged shootings more probable, and if only marginally, is that sliver of probative value substantially outweighed by unfair prejudice?

The Court characterized the identity theory as “a questionable premise” and concluded the better course would have been exclusion: either irrelevance (D.R.E. 401) or unfair prejudice/confusion substantially outweighing probative value (D.R.E. 403).

C. Even under 404(b), the “plain, clear and conclusive” requirement was not met

Having found the trial court treated the audio as 404(b) evidence, the Supreme Court assessed the ruling on that court’s chosen terms and found an abuse of discretion. A decisive point was Getz factor (3): other acts must be proven by evidence that is “plain, clear and conclusive.” The Court found it unsustainable to deem lyrics—performed by someone else, not tied to any specific event, and not clearly attributing shooting conduct to Keys—as “plain, clear and conclusive” proof that Keys committed other misconduct.

D. Harmless error: affirmance despite abuse of discretion

The Court then separated error from reversal. Applying Taylor v. State’s non-constitutional harmless-error test, the Court examined the strength of the properly admitted evidence on the key disputed issue (identity):

• Surveillance videos depicting shooters with clothing/physical characteristics consistent with Keys;
• Firearms recovered from the Charger Keys was driving, matched by ballistics to casings from the daycare and BP shootings;
• Cell-site location evidence placing Keys at two shooting scenes and tracking movements consistent with the events;
• The Instagram video portion (unchallenged) linking Keys to the stolen Charger and indirectly to the Mazda used earlier.

Because that evidence was sufficient to sustain the convictions, the erroneous admission of the audio was harmless. The Court also noted Keys’s own appellate argument that the State “did not need the Instagram audio,” reinforcing harmlessness in practical terms.

3.3 Impact

Although the judgment was affirmed, the opinion delivers a meaningful evidentiary caution with likely downstream effects:

• “Rap lyrics” evidence will face sharper gatekeeping. The Court signaled that lyrics playing in the background—especially where authored/performed by a third party— may be only marginally probative and substantially prejudicial, pushing courts toward D.R.E. 401/403 exclusion.
• Limits on stretching 404(b) to cover expressive content. The Court’s reasoning resists treating cultural/expressive artifacts as “other acts” by a defendant absent a concrete, attributable act that can be proved “plain, clear and conclusive” under Getz v. State.
• Identity cannot be a label for propensity. The opinion emphasizes that if evidence’s real force is “that’s how he would like to be known” (violent persona), its logic is propensity—precisely what Rule 404(b)(1) forbids.
• Appellate outcomes may still turn on harmlessness. Even strong disapproval of prejudicial evidence may not yield reversal where the remaining record is robust. Practitioners should therefore preserve objections but also build a record on prejudice and the closeness of the case if they seek reversal.

4. Complex Concepts Simplified

• D.R.E. 401 (Relevance): Evidence is relevant if it makes an important fact (like identity) even slightly more or less likely.
• D.R.E. 403 (Unfair prejudice balancing): Even relevant evidence can be excluded if it risks causing the jury to decide based on emotion, stereotypes, or confusion rather than the facts—especially when the evidence’s helpfulness is slight.
• D.R.E. 404(b) (“Other acts” evidence): Generally bars using prior (or other) misconduct to show “he’s the type to do this,” but allows it for limited purposes like identity or motive—only if strict conditions are satisfied.
• Getz v. State test (six prerequisites): Delaware’s checklist ensuring 404(b) evidence is truly needed, proven clearly, close enough in time, more probative than prejudicial, and accompanied by limiting instructions.
• “Plain, clear and conclusive” proof: A high reliability threshold—courts should not admit “other acts” based on speculation or ambiguous content.
• Harmless error: An appellate court can find the trial judge made a mistake but still affirm if the remaining evidence independently supports the verdict.

5. Conclusion

Keys v. State reinforces two complementary themes in Delaware evidence law. First, courts should not treat expressive background audio—like a rap song played during a social-media video—as “other acts” evidence under D.R.E. 404(b) unless it clearly attributes a concrete act to the defendant and satisfies Getz v. State, including “plain, clear and conclusive” proof. Second, even when admission of such evidence is an abuse of discretion, convictions will be affirmed if the properly admitted evidence is sufficient under Delaware’s non-constitutional harmless-error rule.