Contributor | Published by UCI School of Law; UCI Criminology, Law & Society; and members of the UCI Intellectual Property, Arts, and Technology Clinic as Jack I. Lerner, Charis E. Kubrin et al., Rap on Trial Legal Guide 1 (Version 1.1 2022)
Since at least 1987, state and federal prosecutors have been introducing rap lyrics and videos as evidence in criminal proceedings against defendants who compose rap songs or perform in rap videos—a phenomenon scholars and commentators refer to as “Rap on Trial.” Most defendants are young Black or Latino men, and many are amateur musicians using common rap terms and tropes. Prosecutors attempt to exploit this form of artistic expression for a range of purposes, including treating rap lyrics as inculpatory statements and confessions, to show circumstantial proof of criminal acts, motives, or intent, and to show membership in or affiliation with a gang.
In effect, however, rap lyrics and videos are used to circumvent the evidentiary rule against character or propensity evidence. Prosecutors use the lyrics and videos to tie the defendant to gang life, violence, or lawless behavior—often by misconstruing the song’s meaning—and in the process trigger deep-seated racial prejudices or invoke preconceived stereotypes about rap music and about young men of color. A 2004 gang prosecution manual published by the American Prosecutors Research Institute urges prosecutors to employ just this strategy by using select evidence, including rap lyrics, to “invade and exploit the defendant’s true personality,” and recommends that investigators focus on such items during search warrants and arrests.
Rap on Trial has had a pernicious effect on the criminal justice system. Tellingly, other art forms and musical genres rarely make their way into the courtroom. It is almost unthinkable that the music of Johnny Cash (“I shot a man in Reno just to watch him die”) or Eric Clapton (who sang “I Shot the Sheriff,” covering Bob Marley) would be used as evidence in a trial. Yet courts have allowed rap lyrics and videos in hundreds of cases even as scholars increasingly recognize rap as the “new vanguard of American poetry.” Sometimes, prosecutors build their entire case around the defendant’s rap lyrics. Rap on Trial is wielded almost entirely against Black and Latino men who pen lyrics and post videos, often imitating a popular portrayal of gangsters. But anyone familiar with rap understands that the lyrics rapped or videos posted online do not necessarily portray the full story when it comes to the artist’s real lived experience….
