The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Can a criminal defendant's own rap lyrics serve as evidence against him in court? It appears they can be, and the music industry is crying foul.
As reported in yesterday's Wall Street Journal, prosecutors have used rap lyrics written or performed by criminal defendants as evidence of criminal activity.
Rap lyrics, which can have violent, crime-related themes, are routinely used as evidence against amateur rappers in court, executives said. The practice has also affected well-known acts such as Snoop Dogg, Mac, Boosie Badazz and the late Drakeo the Ruler.
Music executives argue that by treating rap lyrics as de facto confessions or pure autobiography, prosecutors misunderstand how art works. In many cases, the legal strategy plays—especially for jurors and judges unfamiliar with rap—on stereotypes of criminality among Black people, injecting implicit racial bias into proceedings, according to Erik Nielson, professor of liberal arts at the University of Richmond and co-author of "Rap On Trial: Race, Lyrics, and Guilt in America."
Mr. Nielson said he has counted roughly 500 instances of rap lyrics being used as evidence through 2017. But he says that's almost certainly an underestimate, since his data is based only on available information from the small percentage of cases that went to trial. Meanwhile, non-rap lyrics have been used as evidence only a handful of times, he said.
There is now pushback against the use of rap lyrics in this way. A coalition of firms in the music industry, civil rights organizations, and artists have signed a public letter objecting to the use of rap lyrics as evidence in criminal trials. The open letter has been published as an ad in The New York Times and Atlanta Journal-Consitution.