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Litigation Journal

Summer 2022 | Experience Black

Rap on Trial

Chessie Thacher


  • What can we, as a Section, do to improve the experience of Black lawyers in our profession?
  • Diversity, equity, inclusion, and accessibility initiatives have been part of the Section’s mission for decades and continue to expand.
  • We can highlight, in a very public way, as we have in this issue of Litigation, the problems that still need to be overcome.
Rap on Trial
Tempura via iStock

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For every rhyme I write, it’s twenty-five to life.

Mobb Deep, Shook Ones (Part II), on The Infamous (Loud, RCA, BMG 1995).

Racial discrimination pervades the criminal legal system from a suspect’s first contact with law enforcement through sentencing. One of the reasons that this discrimination is so pervasive is because it can unfold in subtle, yet potent, ways. The use at trial of rap music—a historically Black music genre and an element of hip-hop—is a prime example.

Music lyrics, like other creative and fictitious works, are protected under the First Amendment. They are generally understood to be artistic expressions, and not declarations of truth. No one thinks that Bob Marley actually “shot the sheriff,” that the Dixie Chicks poisoned someone named Earl, or that Johnny Cash killed a man in Reno “just to watch him die”—even though these artists famously sang those lyrics.

And yet, in trial after trial, rap gets treated differently. It is seen not as an art form but as inherently incriminating evidence. Prosecutors often introduce a defendant’s rap songs or videos as if the lyrics were autobiographical confessions of criminal conduct. Even when no clear connection exists between the lyrics and the crimes charged, prosecutors use that artist’s work as circumstantial proof or as evidence of character, motive, or intent.

This constitutional double standard has significant racial justice impacts. People of all races write music of all kinds. But most of the criminal trials in which a defendant’s musical work is introduced as incriminating evidence involve a rap song and a young Black or Latino defendant.

In addition, just labeling lyrics as “rap” can taint the perspective of a judge or jury. Research indicates that, for many, rap conjures up explicit and implicit negative racial stereotypes. People tend to perceive rappers as menacing and lawless. Numerous studies confirm that, when provided the same set of lyrics, people are vastly more likely to find those words offensive, violent, and literal if they believe the lyrics come from a rap song instead of a country or folk song.

The bias exhibited toward rap music and rap artists is compounded by the fact that prosecutors typically introduce rap lyrics divorced of context. Black artists have been rapping for decades as a form of resistance. Rap music tells stories that express frustrations with the status quo, economic hardship, disenfranchisement, police brutality, and the carceral state. While some lyrics are potentially based on personal experience, most blend fact and fiction to create a highly stylized rapper persona. Songs are propelled by mimicry and hype, boasts and tropes, hyperbole and metaphor. Music is also a business, and rap lyrics respond to consumers’ appetite, covering the most commercially successful themes: drugs, sex, masculinity, guns, and gangs.

Another problem: Prosecutors frequently misconstrue the lyrics themselves. They present key terms using “gang experts,” typically police officers whose law enforcement experience alone does not qualify them to opine on rap. The testimony can devolve into a gratuitous stream of racial epithets and violent imagery presented as evidence that the defendant is involved in every illicit act that he raps about. With all the noise, jurors can have a hard time separating their judgment of the art from their judgment of the artist.

Take the California case of Gary Bryant Jr., a Black man and a prolific rapper, accused of murder. Bryant, who was shot first during a chaotic scene in a parking lot one night, said that he had been the victim of a robbery and fired his gun in self-defense. But the prosecution argued that Bryant shot the deceased for the benefit of a gang and used lyrics that Bryant had recorded months and years before the shooting to prove it.

At trial, Bryant, who had no violent criminal history, testified that he was not in a gang. Nor did any evidence prove that the deceased was in a gang. Nonetheless, an officer with no demonstrated expertise in rap twisted Bryant’s words into literal confessions. Some of the supposedly damning lyrics were just common slang or refrains from famous artists’ songs. For example, the officer told the jury that Bryant’s lyrics about being “geeked up” meant being “armed with a firearm” and that “to lay a demo” meant “to make a shooting.” But any person with access to a teenager’s text messages could have just as credibly told the jury that being “geeked” means being excited or high. And any music artist, other than a rapper, would have likely received the benefit of the doubt that “lay[ing] a demo” is about recording songs.

In the end, the jury—which had no Black people on it after all six prospective Black jurors were excluded due to their negative experiences with law enforcement (another example of racial disparate impact)—found Bryant guilty of murder, with enhancements for gang activity. The court handed him a life sentence.

Bryant’s case is not an outlier. Prosecutors have put hundreds of rappers in the crosshairs. In California, Drakeo the Ruler was alleged to have shot and killed someone in a trial that fixated, not on physical evidence, but on his old rap videos. Although acquitted of murder, Drakeo still spent years in jail pending trial. College student Olutosin Oduwole was convicted in Illinois of making a terrorist threat based on rap lyrics found on a crumpled piece of paper under the seat of his abandoned car. Oduwole’s conviction was eventually overturned, but he too spent years locked up. In Florida, it is anticipated that the upcoming trial of rapper YNW Melly for allegedly shooting two men will rely on a song that he wrote more than a year before the shootings—Murder on My Mind. More recently, in Georgia, prosecutors put the lyrics of Grammy-nominated artist Young Thug front and center in an indictment charging him and others with gang activity and RICO conspiracy. The beat goes on.

There are, of course, some cases in which a defendant’s rap lyrics may be relevant and admissible. But these cases should be the exception, and not—as they are today—the rule.

Specific actions can be taken to mitigate the damaging impacts of putting rap on trial. To begin with, courts must understand the tremendous bias that many jurors, often unconsciously, have against rap music and rap artists. In addition, admissibility decisions and jury instructions should focus on protecting free speech and artistic expression, while excluding improper hearsay and propensity evidence. The relevance of fictional lyrics covering inflammatory topics should be viewed with immense skepticism. The same goes for rap videos in which a defendant, exercising his constitutional right to free association, is merely depicted hanging out in a group of people he has likely known since childhood. Unless the prosecution can demonstrate a strong nexus between the specific details of a defendant’s artistic composition and the offense charged, the probative value of such evidence is much more likely outweighed by the unfair prejudice to the defendant.

Moreover, when rap lyrics are introduced, the imperative to empanel diverse juries becomes all the more important. Voir dire should orient potential jurors to hip-hop culture and screen for biases against rap. Prosecution experts should demonstrate specialized knowledge of rap and its cultural origins and uses before being allowed to interpret lyrics. Defense experts should, in turn, rebut hyper-literal interpretations by providing key context. Barring these types of safeguards, the use of rap music in criminal trials will exacerbate the insidious and pervasive discrimination that people of color have long faced in the criminal legal system.