Hip-hop on trial: When can a rapper's lyrics be used as evidence in a criminal case?

When police arrested Nevada rapper^[1] Kenjuan McDaniel on a murder charge in August 2023, they cited a music video he posted on YouTube^[2] that they say includes details of a 2021 killing that had not been made public.

McDaniel, who uses the social media handle TheBiggestFinn4800, had previously been considered a person of interest^[3] in the case. His lyrics included: “Parked the car / double back on feet / the smartest way to slide / drove in / double lock yo man / make sure you get yo bod’.”

As a critical race theory^[4] scholar who researches systems of oppression^[5], I know McDaniel’s case is not unique. Lawyers have used rappers’ lyrics as evidence in criminal cases^[6] since shortly after the rise of gangsta rap^[7] in the late 1980s.

Rap lyrics were introduced as evidence in criminal cases against San Francisco Bay Area rapper Andre “Mac Dre” Hicks in 1992^[8], Snoop Dogg in 1996^[9], McKinley “Mac” Phipps, Jr. in 2000^[10], Lil Boosie in 2012^[11], Drakeo the Ruler in 2016^[12], 6ix9ine in 2019^[13] and Young Thug in 2022^[14].

In fact, researchers at the University of Richmond documented at least 500 cases from 2009 to 2019^[15] where rap lyrics were introduced as evidence in criminal trials.

Rap lyrics as criminal evidence

Both federal and state courts have established rules^[17] that require the use of a balancing test to determine whether to exclude evidence.

If prosecutors can show that a rapper’s lyrics establish motive, intent or identity related to an alleged crime, then most judges will allow^[18] for the evidence to be used.

Judges are expected to balance whether the proof outweighs any prejudicial value – or tendency to unfairly or improperly influence the jury. For example, under this balancing test, a defendant rapper’s lyrics should be excluded if the lyrics will do more to poison the jury against the defendant than to establish their connection to a specific crime.

But case law regarding using rap lyrics as evidence of a crime can vary from state to state, and judge to judge.

In 2014, the New Jersey Supreme Court found that the introduction of a defendant rapper’s lyrics should not have been admitted into evidence^[19], because the lyrics were general in nature and did not demonstrate motive or intent. Instead, the court found, the lyrics served to activate particular biases the jury had against rap and, as a result, the defendant rapper.

In 2020, the Maryland Court of Appeals decided that a defendant rapper’s lyrics – despite also lacking specific details related to the alleged crime – could be admitted as evidence^[20]. According to the judge, the lyrics intended to intimidate witnesses prior to the trial. To be clear, the defendant rapper recorded the lyrics from a detention center 10 months after the alleged murder he was being held for, and three weeks before his trial. Essentially, the court focused more on the timing of the lyrics in relationship to the trial and a completely new alleged crime, not the commission of the crime the rapper was being held for, or the substance of his recorded lyrics.

Criminalizing Black artists

Using rap lyrics as evidence in criminal cases is problematic not only because it can deny a defendant a fair trial, but also because many lyrics are creative, metaphorical works that have double meanings or are based on fictional experiences.

In 1991, federal prosecutors demonstrated^[21] that a defendant rapper knowingly possessed and intended to distribute drugs that he was carrying in two suitcases upon his arrest. During the trial, the defendant rapper claimed he was not aware of the contents of the suitcase. Prosecutors introduced the defendant rapper’s notebook, which included the following lyrics: “Key for key. Pound for pound. I’m the biggest dope dealer and I serve all over town … ”

During the trial, prosecutors submitted evidence to demonstrate that the word “key” was common slang used in cocaine trafficking to refer to kilogram. In this instance, the defendant rapper’s lyrics were accepted as autobiographical, and not metaphorical. They qualified as one of the only pieces of evidence to establish criminality.

While there have been hundreds of cases^[22] in the past 30 years brought against defendant rappers to use their rap lyrics as evidence of a crime, similar charges have not been brought against creatives in other genres at the same rate. Some scholars have suggested that this difference in treatment is, in part, a result of rap lyrics oftentimes being excluded from certain First Amendment protections^[23].

As a result, allowing a rap artist’s lyrics to be used as evidence of a crime risks weaponizing an art form dominated by Black and other people of color. As it is, Black Americans are already incarcerated in state prisons at nearly five times^[24] the rate as white Americans.

Protecting artistic expression

In recent years, lawmakers in California^[26] and New York^[27] have sought to limit the use of rap lyrics in evidence of criminality.

California passed a bill^[28] in September 2022 that would ban lyrics from being cited in court cases unless prosecutors can illustrate that the words are directly relevant to the case in question and won’t “inject racial bias into the proceedings.” The New York bill was introduced in January 2023 and aims to leverage statewide free speech protections to ensure criminal defendants are tried based on evidence and not on their artistic works. That bill is currently stalled^[29].

In July 2022, Democratic Rep. Hank Johnson of Georgia introduced the Restoring Artistic Protection Act^[30], or RAP Act. The federal legislation aims to limit the admissibility of artistic expression as evidence^[31].

Since most state evidence law^[32] is based on federal rules of evidence, the RAP Act could create a new standard in most states for limitation of rap lyrics as evidence of a crime. However, it has been awaiting review in the House Subcommittee on Crime, Terrorism, and Homeland Security.

Case for caution

English jurist William Blackstone asserted^[33] in the 1760s that “all presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that 10 guilty persons escape, than that one innocent suffer.”

I believe admitting rap lyrics as evidence violates constitutional free speech considerations – especially considering the lyrics may be fictitious. The probability of prejudice against defendants who are rappers in any scenario, unfortunately, in 2023 is still too high. Prohibiting the use of lyrics can help ensure that not “one innocent suffer.”

References

1. ^{^} police arrested Nevada rapper (www.cnn.com)
2. ^{^} music video he posted on YouTube (www.youtube.com)
3. ^{^} considered a person of interest (www.washingtonpost.com)
4. ^{^} critical race theory (theconversation.com)
5. ^{^} researches systems of oppression (scholar.google.com)
6. ^{^} evidence in criminal cases (casetext.com)
7. ^{^} rise of gangsta rap (ssrn.com)
8. ^{^} Andre “Mac Dre” Hicks in 1992 (www.kqed.org)
9. ^{^} Snoop Dogg in 1996 (www.nytimes.com)
10. ^{^} McKinley “Mac” Phipps, Jr. in 2000 (www.theguardian.com)
11. ^{^} Lil Boosie in 2012 (www.latimes.com)
12. ^{^} Drakeo the Ruler in 2016 (perma.cc)
13. ^{^} 6ix9ine in 2019 (www.courtlistener.com)
14. ^{^} Young Thug in 2022 (time.com)
15. ^{^} 500 cases from 2009 to 2019 (www.nytimes.com)
16. ^{^} Suzi Pratt/WireImage via Getty Images (www.gettyimages.ca)
17. ^{^} established rules (core.ac.uk)
18. ^{^} most judges will allow (papers.ssrn.com)
19. ^{^} should not have been admitted into evidence (casetext.com)
20. ^{^} could be admitted as evidence (scholar.google.com)
21. ^{^} federal prosecutors demonstrated (casetext.com)
22. ^{^} hundreds of cases (www.nytimes.com)
23. ^{^} being excluded from certain First Amendment protections (digitalcommons.lmu.edu)
24. ^{^} nearly five times (www.sentencingproject.org)
25. ^{^} Talaj/iStock via Getty Images (www.gettyimages.ca)
26. ^{^} California (www.rollingstone.com)
27. ^{^} New York (www.billboard.com)
28. ^{^} passed a bill (www.usatoday.com)
29. ^{^} is currently stalled (www.nysenate.gov)
30. ^{^} Restoring Artistic Protection Act (www.congress.gov)
31. ^{^} limit the admissibility of artistic expression as evidence (www.congress.gov)
32. ^{^} state evidence law (law.duke.edu)
33. ^{^} William Blackstone asserted (lonang.com)