Rap on Trial
On August 11th, 1973, Clive Campell, more commonly known as DJ Kool Herc made his Dj debut at his sister’s party. At the party, DJ Kool Herc showcased a new style of DJing called break-beating; where the breaks of funk songs were isolated and repeated for the purpose of “all-night dance parties.” Although Herc would be unaware of the implications at the time, his technique was revolutionary and helped pave the way for hip-hop’s creation. Nowadays hip-hop has become one of the most popular genres of music and a multi-billion-dollar industry; however, despite its popularity hip-hop is currently under attack. Across the country, prosecutors are creating new legal precedent, while ignoring past ones, and are using rap lyrics as evidence against a defendant. Prosecutors often argue the lyrics are either seen as a confession or inferential evidence that shows the defendant’s guilt. (,e.g., proof of intent, knowledge, ability, motive.) Multiple rappers, such as Tay-K, Snoop Dogg, and Tekashi 6ix9ine have fallen victim to this tactic and showcase the dangerous effects that are occurring. By allowing rap lyrics to be used as evidence, prosecutors are not only limiting protections of the first amendment but creating unwarranted racial implications as well.
To better understand the current stigma against rap music, it is essential to divulge hip-hop’s origins. Hip-hop began as a subculture in the late 70s, in the South Bronx, New York– The South Bronx had been a place of social and economic devastation, with house fires, gang violence, and poverty plaguing the neighborhood, and it was through this chaos and despair that hip-hop was created. Hip-hop became an artistic vessel for many, granting individuals artistic liberation and financial security. It provided many with a sense of sanctuary and provided endless opportunities for creativity and success. As the years went on, hip-hop evolved into a musical genre most known for its diversity, quality, innovation, and influence. This is most present in the 1980s and 1990s (AKA “The Golden Age of Hip-hop”), as hip-hop created a new “sound” that expressed a “pro-blackness ideology”. For example, rapper NWA’s song “Fuck the police” included lyrics exposing the reality of police brutality. Lyrics such as “Fuck the police! Coming’ straight from the underground…And not the other color so police think…They have the authority to kill a minority” are just one example of how hip-hop’s music began to challenge the status quo. Other rappers such as Tupac, Notorious B.I.G, Ice-T, Big Daddy Kane, etc. all revolutionized hip-hop by focusing on the hardships of the impoverished black Americans: life on the streets, police brutality, gang life, and a greater telling of the socio-economic issues that plague America’s dominant minority. However, more with more notoriety garnered more controversy as well. Law enforcement interest in rap music grew exponentially during this time, with multiple hip-hop artists across the country- LL Cool J, Too Short, 2 Live Crew- being arrested for performances that were considered lewd and foul. Federal and local authorities attempted to disband songs, and pursue rappers as menaces to society. This caused conflict between rappers and law enforcement, as Ice T famously notes “If you believe that I’m a cop killer, you believe David Bowie is an astronaut.” The media began to characterize rappers as criminals and thugs, which therefore generated more conflict between rappers and law enforcement. When hip-hop ultimately entered mainstream culture, its origins in social commentary quickly dissipated, and hip-hop turned into a “fame contest”. With an increase in technological innovations, hip-hop became much easier to produce, launching it into the limelight. New rappers were changing the purpose of hip-hop, as now it was not a form of social commentary, but rather the glorification of an unlawful lifestyle. Rappers such as 50 Cent, Kanye West, Jay Z, and Eminem were now presenting hip-hop in a much more degrading way. Hip-hop was now about boasting about a life filled with sex, drugs, and money, which only escalated hostility between rappers and the law. As hip-hop began to make its way into “white” media, it caused much division as hip-hop was either idolized or hated. The graphic lyrics caused discomfort for many individuals, fueling the hostility between rappers and law enforcement, which can still be seen today.
This animosity is present in both investigation and criminal proceedings today, as both investigators and prosecutors attempt to use rap lyrics as evidence against a defendant. Courts in several states have allowed prosecutors to introduce rap lyrics, written by defendants, into criminal trials as evidence. In general rap lyrics are used in one of two ways: the diary, or motive and intent. The diary is one of the most common scenarios that occur; it is when prosecutors treat a defendant’s lyrics as confessions. It includes finding past lyrics written by the defendant and interpreting such lyrics as confessions to previous crimes. It doesn’t matter when the lyrics were written, what the true meaning of the lyrics are, or the originality of the lyrics; everything is analyzed at face value, and is presented to jurors as such. The second, and perhaps most controversial technique, is using rap lyrics as a way to showcase motive and intent. Prosecutors use rap lyrics in order to showcase the defendant’s identity, motive, intent, or knowledge. Typically speaking, a defendant’s past unlawful actions cannot be introduced as character evidence. Federal rules, such as 404B, prohibit excessive use of character evidence as this form of evidence has a unique tendency to prejudice jurors against the defendant. Likewise, the Miller test sets legal standards for what is considered “crude and obscene” in the court of law. The Miller test states whether ‘the average person, applying contemporary community standards, would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’. By neglecting these rules, Buggs states that the legal system is creating a new form of “Jim Crow which is specifically targeting a niche group of people.” Furthermore, the Supreme Court decision in Dawson v. Delaware limits the amount of character evidence allowed during a trial, as the Constitution does not erect a “per se barrier” to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment. Nonetheless, this hasn’t stopped prosecutors from presenting lyrics as evidence in criminal proceedings, take for example, in the case of Skinner v New Jersey. In 2014, Vonte Skinner was on trial for attempted murder, among other charges. During the trial, the State was permitted to read to the jury violent and profane rap lyrics that had been written by Skinner before the events at issue. There was no declaration at trial that the verses were in any way revealing any details that implicated Skinner, but the prosecutors argued that Skinner acted as “muscle” for a drug dealer and his lyrics incriminated him. Some of Skinner’s lyrics referred to violent street show-downs (“[he] wouldn’t listen, so I hit him with the Smithen ”). Although Skinner wrote the lyrics years before the shooting the state of New Jersey argued that Skinner’s rap lyrics showed motive and intent during the shooting for which he was on trial. After hearing the lyrics, along with the other evidence against the defendant, the jury convicted him. Skinner’s lawyers appealed, arguing that the lyrics were highly prejudicial and should not have been admitted; the State of New Jersey then appealed, but the New Jersey Supreme Court agreed that the verses never should have come into evidence. Skinner’s story is just one of many and highlights the deviation many prosecutors are taking in regard to the law.
But why is it that rap music is being singled out? According to many, it’s due to its vulgarity and obscenity. Hip-Hop lyrics have always had a correlation with illegal activity; take for example substance abuse. According to American Addiction Centers, 19.7 million adult Americans in 2017 were reported to have substance use disorders, yet the majority of Americans associated substance abuse with hip-hop culture. The issue of substance abuse disorder is not exclusive to hip-hop, rather, it runs deep through the entire music industry. Some of the greatest musicians of all time, including Whitney Houston and Kurt Cobain, have had tumultuous relationships with substance use: drugs such as heroin, cocaine, adderall, and marijuana are all intertwined into the history of rock, pop, and blues, yet, hip-hop seems to be the only genre of music that is villainized for promoting drug use. In 2016 and 2017 the Urban Community Arts Network (UCAN) —an organization dedicated to confronting stereotypes against Hip-Hop- surveyed the city of Madison to show the negative prejudices individuals have against hip-hop. Their research shows that Hip-Hop was no more associated with violence than many other music genres, yet people still held the most negative connotations over hip-hop. According to a recent survey, with a random sample size of individuals ages 18-70, 56% of individuals believe that rap music is foul, and 21.3% believe rap music is inherently violent. While 86.7% of individuals surveyed believe rap is a form of artistic expression, 48% believe that rappers mean the words they write. Other genres such as country, and heavy metal can include violent, harsh lyrics, however, most individuals do not hold the same negative pretenses over these genres. New York Senator Brad Hoylman says no one believes Johnny Cash “shot a man in Reno just to watch him die” or that David Byrne is a “psycho killer,” but over and over, rap musicians who are involved in criminal cases have their music used against them. He says the practice is both “chilling to artistic expression” and “reveals a bias in some instances that denigrates certain forms of expression, like rap music.” One of the reasons people seem to be threatened by rap is that most individuals simply do not understand the art of rap. Rap is a sophisticated form of “poetry”; most artists, even in the most irreverent or rebellious songs, are following a complex set of rules and conventions. More often than not these techniques fly over a layman’s head, which can be especially problematic when prosecutors, judges, and juries are presented with rap music as evidence without the tools to engage it. The artistic merit of rap is often undermined due to a literal interpretation, and this can help better explain the current prejudice against rap.
On the other hand, other experts argue that rap is under attack due to racial biases in our legal system. It is no secret that African-Americans, specifically African-American males, suffer most from the criminal justice system. Black defendants are often perceived as “scum”, “dishonest”, “dangerous”, or “violent”. Furthermore, the statistical outcomes speak loudly on this larger point. Research tells us, for example, that black Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences, A number of studies have demonstrated that these disparities exist even when the crimes themselves are the same. The result? African Americans represent only 13 percent of the U.S. population, yet they represent roughly 38 percent of the state and federal prison populations. The sense that rap music is threatening or dangerous is a reflection of the stereotype that many people harbor about black people in general, and allowing rap to be used as evidence, slippery Pandora’s box. Moreover, the racial demographics of the hip-hop industry could play a part in continuing racial stereotypes, and could border the line of racial profiling. According to the U.S. census, out of the 15 largest cities in the United States, the top six cities with the highest percentage of a white population are also the ones with close to no hip-hop presence. In contrast, the most notorious hip-hop cities have a much larger percentage of African Americans. Atlanta is less than 500,000 people, but 54% of the population is black, and Detroit is less than 700,000 people, however, 80% of the population is black. The statistics prove that hip-hop blossoms in areas of overrepresentation and seems to primarily compromise African American individuals. This better explains why experts argue that the attack on rap music is a direct attack on Black America, and by allowing prosecutors the ability to use rap lyrics as evidence, this could possibly cause extreme detriment to the black community.
So what exactly can be done about the dangerous precedent currently being set by prosecutors globally. The way I see it is that there are 3 options: prohibit the practice completely, change the art form of rap, or create new legislation to hone the practice inwards. While there is no magic-bullet solution to stopping rap on trial, the best solution, in my opinion, is to create federal legislation that intensifies the standard of evidence to halt the paradigm seen in the criminal justice system today. Given the current state of our criminal justice system, I propose legislators nationwide enact rap shield rules that suppress the ability to use rap lyrics, videos, or promotional materials as evidence in criminal proceedings. Take for example the efforts made by New York law officials who have begun to draft legislation in order to ban the practice. Introduced by Senator Hoylman and Senator Bailey, the legislation “Rap Music on Trial”, if passed, would amend state criminal procedure law to strictly limit the admissibility of a defendant’s lyrics, videos, or other “creative expression” as evidence shown to a jury. According to the legislation the bill would set a new, high bar compelling prosecutors to show “clear and convincing evidence” that a defendant’s rap song or other creative work, is “literal, rather than figurative or fictional.” Jay-Z, Meek Mill, and other major musical artists are pressing New York lawmakers to pass this legislation, and believe that by doing so it could grant rappers the constitutional protection that other musicians and artists have. While generalizing this bill to federal law would be a difficult task, by setting a national standard, rappers not only ensured their constitutional rights but the entire controversy regarding race would be minimized as well. I am not calling for a complete prohibition of rap lyrics as evidence, but by increasing the standard of evidence, we are granting rappers a right they have wrongfully been suspended from. As a whole, the legal system hasn’t shown itself incapable of applying the rules of evidence thoughtfully when it comes to rap music. They’ve been hesitant to educate themselves on the nuance and sophistication of hip-hop, even as it has become the most influential musical genre of the last half-century. And the deferral to the “expertise” of law enforcement professionals is far too subjective to be taken as fact. In addition to “rap shield rules”, Congress must also pass legislative rules limiting the use of evidence that receives First Amendment protection. More often than not a rapper’s “persona” is merely an alter ego; it is an exaggerated version of themselves that provides a theatrical retelling of their lives. Because of this the words that rappers say can not be taken at face value, and therefore need to be protected by the 1st amendment. Although there is some truth in the fact that rap is a genre of music that details illicit activity, it often details broad, vague crimes with generalized statements that can not be proven. So until our justice system is better equipped to handle evidence that is subjective, and graphic in nature, one option is to limit the usage of it together.
Alternatively, I also believe that if rappers take a step away from the “clout-chasing” aspect of rap it could solve a multitude of problems. Now it would be ridiculous to ask rappers to censor their lyrics for the betterment of society; however, due to the current flex culture in hip-hop there is an ongoing conflict between facts and art. The current culture of rap is about “clicks”, and “money”, and one of the easiest ways to become successful is to promote an over-exaggerated, criminal lifestyle. Because of this many police officers must take what rappers say “at face value, until [they] can see what they truly mean”. This contributes to the animosity often felt by rappers and law enforcement officers, and while many blame the officers, it is also important to note the rapper’s responsibility. There are too many stories of local feuds that end with the crime, with rappers “dry- snitching” on themselves and calling it artistic expression. Although it is an investigator’s responsibility to verify the meaning of certain lyrics, and possibly link a crime to a song, it should be seen as a mitigating factor rather than conclusive evidence. So while hip-hop has always been a creative vessel for many individuals to tell their stories about their upbringing, as it evolved its increasingly violent nature caused the controversy we see today, so in order to prevent further tension rappers must step away from bragging about a “gangster lifestyle”, and officers must not make song lyrics a primary means of evidence.
Hip-hop has always been a harbor for an individual to tell stories about their upbringings, but as the practice has progressed so has its opprobrium. Rappers are continuously promoting a false persona of a “gangster” that blurs the line between crime and art, and when that persona falters, the consequences are catastrophic. The practice of using rap lyrics as evidence against a defendant is not inherently wrong, but the current political climate causes the immense controversy we see today. So until the legal system creates a new standard for evidence, and is able to respect hip-hip in the same manner as other musical genres, prosecutors must limit the usage of rap lyrics in the court of law as it disbands the 1st amendment, and continues to fuel negative prejudices against African American males.
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