Expert comment: Tupac murder trial

“The long-awaited trial of the man accused of killing rap star, Tupac Shakur, has finally begun in Las Vegas 30 years after Tupac’s death. Tupac died from gunshot wounds following a drive-by shooting after a Mike Tyson boxing match on 7 September 1996. He died six days after the shooting.

“Opening statements began on Monday 17 August. The trial presided by Judge Carli Kierny is expected to last about a month and has drawn attention from around the globe. Duane "Keffe D" Davis, 63, an alleged former Compton-based Crips gang leader is the only person ever charged in Tupac's murder. Davis, who was arrested in September 2023, has pleaded not guilty to murder however, if convicted, he could face life in prison without parole.

“Davis has not been accused of firing the gun himself, but of planning and orchestrating Tupac’s death in retaliation for an assault upon his nephew. Under Nevada’s felony-murder and aiding-and-abetting law, a person can be held criminally liable and charged with first-degree murder in the same way as the principal offender, if a death occurs during the commission of felony, even if that person did not actually kill or intend to kill anyone.

“The nearest UK equivalent of this law is secondary liability, often tied to the concept of joint enterprise or accessory liability, whereby a person who assists or encourages another to commit a crime, can be held criminally responsible, even if they did not perform the final criminal act itself.

“The burden of proof rests entirely on the prosecution to produce evidence to convince the jury "beyond a reasonable doubt" that Davis is guilty of the charges. Davis does not have to prove his innocence and he is under no legal obligation to present evidence or testify. Indeed, the defence lawyer, Michael Sanft, commenced his opening statements by pointing out to the jury that prosecution has the duty to corroborate all their claims. However, it is expected that Sanft will actively challenge the state's case.

“The prosecution will not be relying on physical evidence, but will rest heavily on out-of-court statements made by Davis and the proffer interviews Davis had with the federal task force in 2008 and with the Las Vegas authorities 2009. In the United States, a "proffer" is a formal interview where a suspect provides information to legal authorities, often under some kind of immunity agreement, in exchange for protection from the statement being used as evidence against them. However, in 2019, Davis wrote a memoir, Compton Street Legend, which includes a detailed account of the night of the 7 September 1996 and relates that he obtained the gun used to shoot Tupac.

“In the book, Davis claimed to be the only living witness with knowledge of Tupac’s murder. He subsequently gave interviews to advertise the book where he repeated these comments. As a result, prosecutors argued there was no longer any reason to exclude the original proffer interviews from the trial because, by publishing these details voluntarily and choosing to write his book and speak publicly about the events surrounding the Tupac murder, Davis waived the confidentiality protections attached to the earlier proffer statements.

“The defence team, on the other hand, attempted to prevent the book from being entered as evidence at the trial, on the grounds that it was a fictionalised account that was exaggerated to add to its commercial value. It was further argued that the book was written by ghost writers for the most part and it is therefore impossible to determine which sections were actually written by Davis. However, Judge Kierny ruled that the book and the proffer recordings would be admissible statements and that they are not protected by confidentiality since Davis had repeated them publicly.

“Ironically, Davis is the prosecution’s strongest witness as, in the absence of any hard physical evidence, they will rely on his own statements to prove their case. Nonetheless, the prosecution will face several obstacles in establishing Davis’ guilt; it has been suggested that after 30 years and extensive media coverage during this period, witnesses’ statements are tainted, or at best questionable, and that there are no surviving witnesses to the shooting.

“Shug Knight, who was driving the car in which Tupac was travelling and might potentially have witnessed the shooting, although he denies this, is currently in prison and it is not known if he will testify.

“Concerns have also been raised pertaining to the lack of physical evidence and lost files. Conversely, prosecutors will argue that their evidence has been corroborated as it has been consistent over the years and is available in differing, independently verified formats including police interviews, proffers, the book and statements made by Davis. They will further argue that the evidence is consistent with the gang related and vengeance motive that will be presented before the court.

“The defence team has and will continue to instruct jurors to disbelieve Davis' statements about his role in the murder, because the book is an invented story that was not his own words and it was merely intended as a money-making enterprise.

“Sanft is expected to exploit and question why prosecutors did not find the statements credible and reliable enough to bring charges in the past, given the 30 years that have elapsed since the crime occurred, and argue that the trial is a result of the state bowing to pressure from the public.

“Sanft has stated that outside the court room, Davis has continued to protest his innocence. If Davis takes the stand, it could be a gamble for the defence. On the one hand, this could serve to humanise this older man in the eyes of the jury and enable him to give his own account of events but, on the other hand, this would also provide prosecutors with the opportunity to cross-examine him and use his past words against him.

“The trial depends on whether the prosecution can prove that Davis is guilty beyond reasonable doubt on the murder charge or whether Sanft and his team can convince the jury that Davis’ book and interview do not amount to a reliable confession and that the prosecution is not able to prove their case beyond reasonable doubt.

“However, in Nevada, a criminal conviction requires a unanimous jury verdict and all 12 jurors must agree that Davis is guilty beyond reasonable doubt. So, the jury in this case is still out.”