ART AS THE PROSECUTOR’S WEAPON: THE USE OF RAP LYRICS EVIDENCE AT TRIAL

Abstract:

Are rap lyrics worthy of the same protections that other forms of creative expression enjoy, or is there something inherent to rap lyrics that renders them autobiographical, confessional, and reflective of the author’s true intentions and desires? This Article will attempt to answer that question. In doing so, the authors will take the reader on a voyage through a history that is not widely known among the attorneys, judges, expert witnesses, and jurors who are frequently called upon to interpret the art form known as Hip Hop.

This journey requires an exploration of our country’s history of chattel slavery, for the reader cannot gain a proper understanding of the musical and storytelling practices that exist in Hip Hop today without studying the traditions that survived the Middle Passage and found new life in the United States. This history will reveal that Hip Hop music is the latest cultural product of the Black Oral Tradition, a tradition that utilizes linguistic devices for figurative rather than literal purposes. By placing rap lyrics in their proper historical context, this piece demonstrates that such lyrics are of poor probative value when used to determine an artist’s true conduct and intentions.

At the heart of the inquiry concerning the artistic value of rap lyrics is the topic of race. The admission of rap lyrics as evidence at trial often involves exposing the jury to the conventions of rap music, including racial stereotypes, violence and misogyny, and the N-word. Thus, the admission of rap lyrics evidence injects racial bias into the proceedings, resulting in unfair prejudice to the author or performer of the lyrics.

When courts admit rap lyrics into evidence without assessing the linguistic devices at play or acknowledging the racial bias and stereotypes triggered by the lyrics, they do an injustice to defendants. This Article will advocate for an approach that allows California courts to determine the true probative value of rap lyrics evidence while also examining the unique prejudice a black or brown defendant might face if their rap lyrics are admitted against them.

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