Rap on Trial -California and New York Criminal Proceedings under Fire for Racial Bias, Unfair Use of Creative Expression

The right to a fair trial is an unequivocal right within a democracy, one that is guaranteed in the United States constitution. Yet, across the country, people are being prosecuted based largely on the contents of their music as evidence of crimes. Artistic expression in the form of lyrics is being weaponized even when its relevance to a crime is inferential as opposed to explicit. Fortunately, new legislation in states like California and New York aim to address this issue.

Dr. Andrea Dennis has identified at least 500 cases of rap being used in criminal cases in the United States as of 2020. What’s more? This phenomenon applies only to rap – no other genre of music makes it into the courtroom. To put this into perspective, it would be as though Johnny Cash’s “Folsom Prison Blues” and “Delia’s Gone” were used against him as evidence that he is capable of committing a murder or has admited to one previously. Or if Edgar Allen Poe was sentenced for a murder based on his renowned poem, “the Tell-Tale Heart.” Similiarly, the use of rap as evidence should not be recognized in the courtroom either. 

The law prohibits using evidence in court that points to an individual’s character and their supposed inclination to act a certain way. However, rap lyrics and music videos are often used to circumvent this rule. Relying on prejudicial bias, prosecutors twist rappers’ artistic words into confessions or evidence of guilt and involvement in crime. Rap on trial purposefully feeds into a jury’s existing biases. 

Researchers have found that rap music is viewed as more threatening, more offensive, and less artistic than other genres with similarly violent themes. Even when presented with the same set of lyrics, people reacted considerably more negatively when told that the lyrics originated from a rap song as opposed to country or folk. Furthermore, the writers of violent “rap” lyrics are viewed as more likely to be violent and involved in criminal activity than writers of country or heavy metal songs.

The phenomenon of using rap lyrics in court dates back to early the early 90s. The practice became so commonplace that the American Prosecutor’s Research Institute, in a 2004 manual on gang cases, recommends prosecutors use lyrics to “invade and exploit the defendant’s true personality.” 

Rap on trial has now become routine, affecting young, entrepreneurial rappers and big name rappers alike. Drakeo the Ruler was charged for murder with no evidence except his rap songs and music videos. In fact, prosecutors had a recording of a 17-year-old confessing to the killing and another man admitting to firing additional shots. He was later acquitted for the murder charge because the case against him was built solely on his songs. Drakeo was additionally prosecuted for being a “gang leader,” the gang referring to his rap crew. 

There are many similar cases involving amateur rappers: in 2016, the courts upheld William Michael Jordan’s murder conviction after prosecutors played a rap video to jurors, even though there was no physical evidence against him; in 2020, the Maryland Appeals Court allowed Lawrence Montague’s rap lyrics to be entered into evidence, resulting in his murder conviction being upheld, despite scant evidence otherwise; and in 2021, Deonte O. Tomlinson’s murder conviction was upheld in Conneticut after the court allowed rap lyrics into court that were deemed “irrelevant” to the case. The list of examples goes on and on and on. 

A recent policy from California, titled the California Racial Justice Act (CRJA) of 2020,  seeks to eliminate this type of racial bias in courts. A defendant may invoke this policy if they feel that racial bias or prejudice played any role in their conviction. The CRJA would assist individuals who feel that they have been prosecuted with little evidence except for music and lyrics that biased the jury’s opinion. This would give many individuals an opportunity to be tried again but this time, fairly and equally.

Rap music is an art form with long standing traditions that are well-documented throughout its history. Allowing it be used as evidence is ultimately a violation of the first amendment, specifically the right to free speech. Moreover, the use of certain creative expression in courts (and not others) legitimizes using evidence steeped deep in stereotypes. 

The practice of rap on trial is just the tip of the iceberg. If rap lyrics, music videos, and the surrounding culture continue to be used in court, this sets a precedent for other forms of speech and expression to be allowed into evidence as well. Who’s to say where the line will be drawn? This fundamental violation of the right to free speech and the right to a fair trial must be addressed beyond state borders and the CRJA could readily serve as a template for federal policymakers.

-Buket Urgen, Legislative Advocacy Intern

Buket Urgen is a senior at the University of Georgia in the Music Business Certificate program, majoring in International Affairs. Urgen most recently served as chief of staff for Georgia congressman Spencer Frye assisting with policy and research. Buket is a Spring 2022 legislative advocacy intern at the Law Firm of Lawson McKinley exploring projects connected to local state and federal music related legislation. 

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