Should Rap Lyrics Qualify as Evidence in Criminal Trials?

The music industry objects to the use of rap lyrics by prosecutors.

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.

More on the issue from Billboard and Music Business Worldwide.

Comments

[Social Justice is neither]

I'm sure Drakeo died in his sleep just like Tupak.

More seriously, their use as confessions and not just the starting point for investigation is bad but not much different from using a generic argument where you publicly wish X dead and X is murdered for a circumstantial case.

[jimc5499]

I seem to remember reading about a Rapper in a video waving a pistol around. He was then accused of a crime involving a pistol. He testified under oath that the pistol was stolen a few years before the crime. Somebody took a frame from the video and got the serial number from the pistol in the video. It matched the pistol that he said was stolen. The video was only a few weeks old.

[LawTalkingGuy]

How quality was the image in that case? Although I think that raises less problems than using lyrics, which might be figurative or not based in reality, because it is video evidence about a specific gun that can actually be viewed.

[MatthewSlyfield]

That's not in any way comparable to using rap lyrics as evidence.

[LawTalkingGuy]

In most circumstances, rap lyrics to the extent they could even be considered "relevant" lyrics should be excluded as impermissible character conformity evidence. Presumably prosecutors argue that it can come in for other purposes and the "motive" and "intent" exceptions practically swallow the character evidence rule itself. Or possibly identity. Both of these other purposes raise major Rule 403 problems in that the probative value is likely outweighed by unfair prejudice. I mean, is a rap lyric really going to demonstrate a particular motive or intent to commit a specific crime when a lot of rap has similar themes? Is it really the entire key to someone's identity? If the State has other good evidence a person did a crime, they don't need rap lyrics. If their entire case hinges on rap lyrics...well that's a terrible case and what the evidence rules are designed to prevent.

[rloquitur]

Beat me to the punch. The evidence would generally be more prejudicial than probative and would be used to argue conduct from character, i.e., the forbidden inference.

[LawTalkingGuy]

Although in my experience the character evidence rule is often a nullity in practice given how deferential judges can be to the State and how mailable many of the "other purposes" that are listed in the rules of evidence are.

[rloquitur]

What these learned judges miss is that where character evidence is repackaged as "intent" etc., it's still forbidden character evidence.

Of course, you still have idiot state supreme courts referring to "404(b) exceptions"--argh.

[LawTalkingGuy]

Part of the problem is the rule itself I think. My state Supreme Court unanimously did a good job of trying to clarify and limit 404B because it had gotten out of hand. But even when they were taking about intent, they kind of threw up their hands and were like: this is basically character evidence but technically it’s not, so try and be careful.

[Both Sides]

Just wanted to note that I agree with everything LawTalkingGuy said above.

[Squirrelloid]

The only case I can see for rap lyrics being used as evidence is if the rap gives details of the crime that were not released to the public and the rapper would otherwise have no way of knowing.

[Ridgeway]

Another situation would be statements indicating intent to commit a specific crime that does in fact occur.

If I say "I am gonna shoot XYZ", and a few days later, XYZ gets shot, my statement should be admissible against me, regardless of whether I said it in a hip-hop song, or in a conversation at a bar.

[rloquitur]

All depends--could be more prejudicial than probative.

[Ridgeway]

Potentially -- but the analysis should be essentially the same regardless of the medium in which the statement was made.

[LawTalkingGuy]

I don’t think that’s correct for assessing unfair prejudice vs probative value. Rap lyrics present problems with both. Lyrics that are surrounded by figurative language and part of a genre with similar themes aren’t as probative of factual circumstances as someone say confessing to the crime to his friend at a bar. And it’s unfairly prejudicial because the jury might think: well his music is about violence, so he must be a violent person. Ergo he did the crime.

[SomeGuy 2]

I've typically seen, and think the better approach, is to handle this with a limiting instruction. Rather than exclude potentially relevant evidence, just include in the instructions that rap often has metaphorical meanings, that the lyrics were introduced for a figurative purpose, that the jury can't use the lyrics to draw other inferences about the defendant, etc. "This is so prejudicial the jury must never know" should be the extremely rare exception for highly inflammatory information that's of extremely limited relevance, not on-point evidence that in theory could be mishandled.

[LawTalkingGuy]

Courts of appeals think that limiting instructions or curative instructions solve everything, but I'm not sure there is any actual empirical evidence to support that, just some mythical presumptions.

[SomeGuy 2]

Cuts both ways, don't think there's any empirical that juries disregard the limiting instructions either. That being said, I'm troubled by cases where the defendant wants a bench trial but the prosecution wants a jury and gets their way, in part because the jury might have biases that are hard for defense to tease out. I'd be willing to reform so that the defendant gets to choose whether it's a bench or jury trial for this or for any other reason. If defendant thinks the rap evidence is so muddled they can't hear rap without thinking guilty then fine; bench trial it is.

[KenveeB]

Why shouldn't the State also have a right to decide who hears the case? If they think that a jury of the defendant's peers should decide the case rather than a judge known to be soft on a particular type of crime, for example, that's a very valid reason. If the jury is actually acting irrationally and not based on evidence, that's what appeals are for. But "we think the judge will be softer on the defendant" is not a valid societal reason to favor the defendant alone being able to force bench trials.

[Bored Lawyer]

In what alternate universe? Sounds highly probative to me. Especially if there is other evidence connecting said singer to said dead person.

[LawTalkingGuy]

A lot of things are highly probative. But the question is whether unfair prejudice outweighs probative value. That’s the basic concept behind other acts evidence: it’s not that it isn’t probative or relevant, it’s just highly prejudicial in an unfair way that leads to the jury drawing the wrong inferences.

[KenveeB]

Or drawing the right inference. Just because rap is often about violence doesn't mean that rappers don't commit violence. That's absurd. If rap lyrics are purely an expressive art form, what are some people intending to express? Let the State put on the lyrics and the defendant put on whatever testimony he wants about how they're just expressive and symbolic. Let the jury decide which one it believes. That's usually how jury trials work.

[LawTalkingGuy]

I think it would have to be extremely literal and not surrounded by figurative language. I mean “I’m gonna fuck X up” probably wouldn’t be admissible to prove the rapper did it after X turned up dead.

[Ridgeway]

I don't see why not.

The key would be to limit the admissible statement to just the admission or statement of intent. The surrounding lyrics could be excluded as unduly prejudicial.

[Brett Bellmore]

Yeah, that was my thought. I don't think rap songs are any more dispositive than any other medium, but surely they're not LESS dispositive.

[SomeGuy 2]

This is just an illustration of Holme's reminder that "General propositions do not decide concrete case."

Are rap lyrics relevant? I don't know, maybe, but there doesn't need to be a special "rap" rule, it's just like any other form of art. The Rules of Evidence already cover this-- as a threshold issue they're only admissible if they're relevant and even if relevant they might be inadmissible for some other reason (such as more prejudicial than probative). There's no reason to treat rap differently than short stories or paintings. Sometimes they're relevant and admissible, sometimes they're irrelevant, and sometimes they're relevant but inadmissible.

To the extent rap pops up as evidence of a crime more often than other forms of art-- which appears to be the germ of a complaint they have-- then that's not the fault of the prosecutors, apparently for whatever reason criminals prefer rap to writing short stories. If anybody is troubled by that, then they should take it up with the criminals, they're the ones who are choosing to be criminals and rap about it.

[LawTalkingGuy]

The same rules apply but the medium of the statements certainly should impact the 404 and 403 analysis.

[David Nieporent]

To the extent rap pops up as evidence of a crime more often than other forms of art– which appears to be the germ of a complaint they have– then that’s not the fault of the prosecutors,

Sure it isn't. It's just pure coincidence that prosecutors happen to use a form of art associated with black people more often than other forms of art. When Carrie Underwood confessed to vandalism in "Before He Cheats," prosecutors were able to discern that these were just song lyrics. But somehow, they don't seem to think that when it comes to rap.

[Brett Bellmore]

Was she a suspect in a car being vandalized? I hadn't heard.

My position is that if Carrie had sung about carving her initials in the leather upholstery, and not so long before some guy she had broke up with had "CU" carved in his car's upholstery, and the police hadn't mentioned that little detail in public reports, yeah, the song is evidence. But it doesn't implicate her in every case where a car gets vandalized.

[KenveeB]

If Carrie Underwood had then been a defendant on trial for a case where her ex's car had been vandalized, I 100% guarantee those lyrics would've been introduced against her.

[SomeGuy 2]

Rappers can be of any race as can criminals. Note that the evidence indicates time rap has been used as evidence but not the race, if known, of the defendant. If you heard “criminal rapper” and thought “black” then that’s on you, not prosecutors. Even if it happens to be the case that criminal rappers are disproportionately of a certain race then so what? Are prosecutors supposed to ignore rap-based evidence because they already caught two criminals that way and if they catch a third it would be disproportionate to country music? Absurd.

As for Carrie Underwood, if she really did have an ex that cheated and his car was vandalized, of course her song would be evidence. Enough on its own? Of course not. Relevant? Naturally, there’s no way she’d keep it out.

[BravoCharlieDelta]

I thought the issue was when rappers bragged about their crimes in their music. Not just "look at this guy, he raps about shooting, therefore he's a murderer."

[LawTalkingGuy]

Key and Peele addressed this topic:

https://www.youtube.com/watch?v=14WE3A0PwVs

[dwb68]

Agatha Christie and Michael Connelly killed many people. Obviously. Just read their books.

Its hard for me to understand how this has been allowed. Rap lyrics, like most people's resumes and CVs, are exaggerated.

[Squirrelloid]

And Angela Lansbury was obviously a serial killer!

[gormadoc]

"Rap lyrics, like most people’s resumes and CVs, are exaggerated."
But sometimes they do describe actual crimes: https://genius.com/3872831. Don't see any reason to disallow any examination of rap lyrics.

[RENATA the rational]

But your resume does not exaggerate a crime. That is the point.

[Brett Bellmore]

This seems relevant, though.

‘How to Murder Your Husband’ Writer Convicted of Murdering Husband

[Longtobefree]

So everyone singing 'The Green, Green Grass of Home' is a pot-head?

[Bob from Ohio]

"pot-head?"

Only those who think a song about an executed prisoner's coffin being returned is about pot.

[Currentsitguy]

In other news police are reopening the investigation into Bob Marley and Eric Clapton for that notorious sherriff shooting incident.

[Frank Drackman]

How else are you gonna convict Humpy Hump when he drinks up all your Hennessy??
All right, stop whatcha doin' 'cause I'm about to ruin
The image and the style that ya used to
I look funny, but, yo, I'm makin' money, see
So, yo, world I hope you're ready for me
Now gather 'round, I'm the new fool in town
And my sound's laid down by the Underground
I drink up all the Hennessey ya got on ya shelf
So just let me introduce myself
My name is Humpty, pronounced with a Umpty
Yo, ladies, oh, how I like to funk thee
And all the rappers in the top ten
Please allow me to bump thee

Frank "never got lucky in a BK bathroom"

[gormadoc]

https://www.justice.gov/usao-cdca/pr/rapper-who-bragged-about-unemployment-benefits-scam-music-video-arrested-allegedly

[Squirrelloid]

The worst offense detailed in that link is that some rapper thinks "“You gotta sell cocaine, I just file a claim….”" scans. Our English education is truly failing.

[gormadoc]

I don't know, I think a gangsta acting like welfare fraud is cool or impressive is pathetic on its own.

[JohnSteed]

Did they ever go after Johnny Cash for shooting a man in Reno?

[Ridgeway]

The seminal case on this issue is State of California v. Catherine Trammell.

[jdgalt1]

Some criminals have talked about their crimes in song or story; it should be left up to the jury in each case to look at the song or story and decide whether it means anything about that case. Any rule imposed from above, whether by statute or by a judge who thinks he knows better than the jury whether a song is more provocative than probative, is too likely to get it wrong.

[LawTalkingGuy]

This seems like an argument for just junking the rules of evidence entirely and letting each side introduce anything and then argue its relevance or probative value to the jury.

[BravoCharlieDelta]

There's a rule of evidence that forbids using confessions if they're sung in a song?

[David Nieporent]

No; there's a rule of evidence that requires that a judge be the gatekeeper in what evidence is shown to a jury, that a judge decide whether something is more prejudicial than probative, rather than "it should be left up to the jury."

[LawTalkingGuy]

[Jimmy the Dane]

So singing about your crimes now gives you some sort of immunity?

The issue here is simply don't sing about crimes you commit or participate in the commission of.

I think the system can figure out if a particular lyric is true or not. Steve Miller did not actually shoot the sheriff (or his deputies).

[BravoCharlieDelta]

Many of the commenters here don't understand these rappers are singing about their actual crimes and think it's being used as some kind of character evidence.

[Jimmy the Dane]

Have they ever listened to rap? Would not surprise me the white libs around here actually never have...

[M L]

Right, it reflects how they are generally out of touch with the plebeian masses.

[M L]

Like if you don't know people from high school who went to prison for example, or played football with a guy that later killed someone, that's probably a good thing. It's good to have a bit of sheltered and privileged upbringing. But you also somehow need to gain a perspective grounded in reality.

[Jimmy the Dane]

If the only thing you knew were country clubs and a guy named Chas then chances are solidly you have absolutely no idea how the world works. Real people, the normals, all have degrees from the school of hard knocks, not an ivy league.

[Brett Bellmore]

Blondie ate bars, but not if the TV was on?

[Bored Lawyer]

Steve Miller did not actually shoot the sheriff (or his deputies).

Really? Wow, that's a relief.

[Jimmy the Dane]

I think it was really Willie Horton.

[BrotherMovesOn]

Steve Miller? I don't think you're qualified to add to this discussion.
How about telling us how the theory of natural selection is a hoax again!

[Jimmy the Dane]

Nice moving goal posts. Natural selection is probably accurate to some extent within the confines of the same organism, however, its application to some inter-species development is highly suspect and not at all proven.

You ought to just stay in your lane and stop trying to sound like your the least bit intelligent. Leave the running of stuff up to us normals. Just reserve yourself to retweeting AOC.....oh wait.....

[BrotherMovesOn]

"your"
LOL

[Jimmy the Dane]

Genious.

[benji]

You think limiting what kind of evidence is introduced grants immunity for crimes?

[BravoCharlieDelta]

I think there are people here missing the forest for the trees.

it's not uncommon for rappers to brag about their crimes in their songs.

That absolutely should be able to be used as evidence.

[RENATA the rational]

I would ask the rapper, in court under oath, if he were aware of this controversy. If he says "NO" he taints his testimony in the eyes of many, and if he says "YES" he comes off as daring people to make the connection.

[MonitorsMost]

In most situations I would expect rap lyrics not to be relevant. If the lyrics are specific enough to constitute a confession, that would tip it over to relevant. Similarly, if the track was a diss record targeted at a specific person who was then a victim of a crime, the lyrics would be relevant to establish motive (although there would certainly need to be more evidence of guilt than that, in corpus delicti, etc.).

[M L]

"Rap lyrics, which can have violent, crime-related themes, are routinely used as evidence against amateur rappers in court, executives said."

The fact is, amateur rappers routinely kill people and then rap about it in specific terms.

Ok, not "routinely." But it happens.

[Bored Dad Is Bored]

Bingo. If the lyrics are probative and not otherwise excluded under an existing evidentiary rule, they should be allowed. Obviously the fact finder can weight them accordingly (low weight does not equal inadmissible).

[M L]

I shared this last time the topic came up, but you must check out check out "Criminal Lawyer Reacts" Bruce Rivers on YouTube.

https://www.youtube.com/watch?v=fhC1zrIgRZE&ab_channel=CLRBruceRivers

[M L]

Note that in the music video and rap song that the lawyer is reacting to above, actual names of actual people who were actually killed are listed.

https://www.news4jax.com/news/local/2021/10/28/jacksonville-rappers-are-making-music-videos-about-real-murders-police-and-mothers-of-victims-are-watching/

“Bibby” is Adrian Gainer, a 16-year-old friend of rapper Julio Foolio who was shot and killed in the Hilltop Village Apartments in 2019.“He was joy. All he did was laugh and dance,” Elizabeth Gainer said. “Nobody can do anything worse to me than killing my child.”

It took two years for an arrest to be made. The man now accused of killing Adrian Gainer is Hakeem Robinson, known as rapper Ksoo, who is also affiliated with ATK.

Lyrics from one of Ksoo’s music videos also mentions Adrian Gainer by his nickname “Bibby.”

“N**** never play with Ksoo. Smoke Durk and Bibby to the face though,” Ksoo says in his music video for “Ksoo B***h.”

Robinson is currently in jail, charged with second-degree murder in Gainer’s death.

Gainer’s mother said Robinson and other rappers continuously mocked her son’s death in music videos and on social media for years. “I’ve heard anything from where he was shot, I’ve heard what his last words were,” Elizabeth Gainer said.

“Bibby had a closed casket, I wasn’t surprised,” Ksoo says in the song.

[Jimmy the Dane]

Hey man this is just like a guy expressing himself!!!!

[Old Smokin' Egg]

If social-media posts mocking someone's violent death or injury are evidence of complicity in the attack, how many thousands of our Republican friends are guilty of the assult on Paul Pelosi?

[tkamenick]

Give it to the jury. This is why we have juries. Let the prosecutors make their arguments and the defense make theirs. Judges try to do way too much of parties' and jurors' work for them.

[David Nieporent]

No, that's not how the rules of evidence work.

[Brett Bellmore]

You ever consider that a lot of the modern rules about how courts operate were crafted specifically to neuter the jury system the Constitution guaranteed us?

[dwb68]

The Shining was autobiographical too. Clearly.

[gormadoc]

The letter they published references Young Thug's RICO charges and says "prosecutors argue that lyrics like 'I get all type of cash, I'm a general' are a confession of criminal intent." I imagine that's just to try to tie him to being a leader (more than they otherwise have; it's pretty clear) and thus liable for crimes other gang members have committed, including a murder committed by gangsters driving a car Young Thug had rented a few days before. In fact, the lyrics the letter mentions were part of a song with other lyrics the indictment included (but the letter doesn't mention): "I never killed anybody/But I got somethin' to do with that body."

Yes, it would be stupid to rely entirely on the lyrics for the conviction and they probably didn't need to include that in the indictment (though I understand RICO cases can be strange), but we shouldn't pretend that all lyrics are always simply fanciful art.

[Ridgeway]

He should be incarcerated for rhyming "body" and "anybody."

[RENATA the rational]

While I would not argue from someone's lyrics I personally think a person vile and detestable who would sing about killing police and if I had a way to prosecute I would. But not from the lyrics directly.

[JonFrum]

Funny - when they're performing, they don't say that it's all a game - they're 'keepin' it real!' But as soon as it goes to court, it becomes 'it's art, homie!'

If they had to say up front that they were just fakin' it, no one would listen to them. They pretend to be gangsters up until the second the law comes for them.

[Sarcastr0]

Wow.

[floridalegal]

Always in cash and never in writing... or recorded.

[KenveeB]

If someone writes poetry, paints a picture, or writes a book about some particular type of violence and then they’re on trial for committing that type of violence, then obviously their art would be introduced at trial to show their motive, knowledge about details of the crime, violent tendencies, etc. There’s no reason to exempt rap lyrics from that same general rule. Introduce it, let the defendant put on evidence explaining it as purely art and not connected to the offense, and let the jury decide which is the stronger argument in that specific case.

[linarobber]

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