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Rap on Trial: How an Art Form Became a Courtroom Weapon

book coverSince at least the early 1990s, rap music lyrics have been used in criminal courtrooms as evidence in cases of violence, usually involving young people of color. In a new book, Rap on Trial: Race, Lyrics and Guilt in America, Erik Nielson and Andrea Dennis warn that this has played into stereotypes about race, intelligence and creativity, particularly for justice-involved African Americans and Latinx individuals.

In a conversation with The Crime Report, Nielsen, an associate professor at the University of Richmond, and Dennis, a former assistant federal public defender who holds the John Byrd Martin Chair of Law at the University of Georgia School of Law, trace how a genre-changing vehicle of expression created largely by African-American youth has been used as a courtroom weapon against them.

The transcript has been edited and condensed for clarity.

The Crime Report: What prompted both of you to collaborate on this book?

Erik Nielson: In about 2011 or 2012, I started seeing cases involving rap lyrics as evidence. My academic focus has always been black art and its relationship with the law in the United States As I started looking into it, I realized it wasn’t a few isolated cases that I was seeing in the mainstream media, but that this was something more pervasive. As I started digging, I stumbled across a law review article that Andrea had had published in 2007 [about the topic]. I was surprised no one was making a big deal out of it. I reached out to her for an interview, and, we’ve been collaborating off and on since then, since 2012.

Andrea Dennis: I was at the University of Kentucky College of Law when a colleague mentioned a criminal trial that was ongoing in the Lexington, Ky., courthouse. It was a case of a young, aspiring rapper who had allegedly shot and killed a music store clerk with whom he had been familiar. The prosecutor was seeking to use lyrics that the defendant had written to paint a portrait of him as a killer. Earlier, when I had been in federal criminal defense practice, a colleague of mine had a homicide case in which his client was an aspiring rapper. [We were concerned] that after a search of the client’s vehicle turned up a rap CD that he had created, the prosecutor was going to try to use this as evidence of his guilt. That case was ultimately resolved without a trial. At the time I thought these were isolated examples.

But as I began to look around I found [using a rapper’s lyrics in a courtroom] was an ongoing phenomenon. I had identified a number of issues in the article that were not addressed, and once we began to see a large number of cases we were able to [raise questions] such as the role of the First Amendment, and unconscious bias.

TCR: How has the use of rap lyrics in courtrooms evolved over the past several years?

Erik Nielsen

Erik Nielsen

Nielsen: In many of these earlier cases handwritten lyrics in the back of somebody’s car were used as evidence, but social media expanded that dramatically. Very few of the cases now involve written lyrics or lyrics recorded on some sort of physical medium. So In addition to allowing for the widespread dissemination of this music for aspiring artists, which is a good thing for them because there are no barriers to entry and you can try to build a fan base, [social media] meant that police could start monitoring this type of activity with very little effort. Spending hours just going through all of these social media posts looking for crimes, or future crimes, or whatever they described it as.

 TCR: You mentioned about midway through the book that there were 500 cases, but an exact number is hard to establish. How has the examination of rap lyrics in courthouse settings become a nationwide practice?

Nielsen: Don’t underestimate the communication among prosecutors nationwide. That is something that I have seen firsthand. Early cases going back to around early 1990 or so were successful; in many instances, they became impervious to appeal in many cases. So it became a widespread practice, thanks partly to other people seeing this as a successful prosecution.

Dennis: That’s absolutely right. The prosecutorial network, in terms of training and informal word of mouth, is vital to this sort of nationwide transmission and it was happening both at the state and federal levels. Law enforcement also began to be more aware of how to use rap lyrics as evidence in gang crime cases.

TCR: What has been the impact of turning hip hop from a vehicle to combat poverty and violence into a basis for courtroom evidence?

Nielsen: That’s one of the things that we are particularly concerned about. We know that, in many of these communities, including the earliest where hip-hop evolved, there are limited opportunities for upward mobility. And although I don’t know that anyone could have predicted it hip hop opened up an entirely new space, not just for individual rappers, but in terms of sound production, music production, advertising, apparel. It’s now a multi-billion-dollar industry that grew largely because of mainstream, white American demand for hip hop. There’s a certain irony and cruelty to all of this. [Rap] demands specific kinds of content, at least for those who create violent, sometimes sexually explicit lyrics. And then, when these young men [use it] we slam the door on them. Using those lyrics as evidence feels like a trap, especially given the positive impact of hip hop on communities across the country.

Dennis: You can also add the artistic and the social aspect. Putting aside the economics, it is another instance in which white American society, has embraced a cultural creation by the black community and yet also demonizes the black community for engaging in it. There are many who have embraced hip hop as a form of therapy, hip hop as a form of rehabilitation, hip-hop as a form of expressing one’s emotional concern. And you see this in community programs, you see it in schools, you see it nationwide; and yet, if you try and use it to articulate angry feelings or complicated feelings, then you are also punished for it.

TCR: Do you think rap’s use in the courtroom will start to diminish?

Nielsen: It’s an easy sell [to a judge or jury] because rap music reinforces stereotypes about young men of color held by many people within the criminal justice system and American society more broadly have: stereotypes of hyper violence, hypersexuality. What’s more, it’s told in the first person, so it speaks to what people on a jury are already thinking when the defendant enters the room. That makes it very easy for prosecutors to secure convictions even if other evidence in the case is weak. The question about whether it will change is tricky. Rap is now the most listened-to genre in the country. Will that mean stereotypes about rap music and the people who created have changed have softened in any way? You would think that as rap has become mainstream, there would be greater tolerance of it. But instead we’re seeing that it is being used in courtrooms more, not less. We suspect that it’s in part due to the idea that there are people in America who feel surrounded by it now, and they’re not happy about it. And so its success has led to a different kind of response, but an equally sort of fearful and angry one.

Andrea Dennis

Andrea Dennis

Dennis: I want to add one more stereotype which I think is important—that black people in general, and in particular young black, young Latino men, are not very bright. So their creative abilities are limited to merely painting or depicting literally what their life experiences are. There’s no metaphor, there’s no collective knowledge. In other words, most of these guys are not Jay-Z. Jay-Z is a genius, Kendrick Lamar is a genius. But these other guys, who aren’t famous or only famous locally, are not considered sophisticated artists, so they must be telling an autobiographical event. I hope (our book) dispels some of the stereotypes of the art form, especially among people who are not already super-familiar with it.

Nielsen: We have a quote in the book from a Newport News (Virginia) gang detective who says “these guys aren’t the brightest; It’s easier just for them to [record] what’s right around them.”

Dennis: This book may not change minds [across the justice system], but we’re hoping that it will convince young people that they have some power to change the system. If they end up on a jury or if they’re voting for a prosecutor or judge, they can make some very thoughtful decisions about who they want as significant players in our criminal justice.

TCR: When, if ever, should rap lyrics be permissible in court?

Dennis: If you had asked me years ago… I’m the lawyer, I take the moderate approach, and I would have said sometimes, when in particular, the lyrics are idiosyncratic and by that I mean that the alleged crime is of such a particular nature that anyone who’s talking about the crime would have knowledge about the crime, so you can sort of match the lyrics to the alleged event fairly closely. In those circumstances, maybe—if you can demonstrate those idiosyncrasies—[it’s usable]. But the court needs to be sure that the defense has available an expert to offer background information and interpretation. Erik and I have had plenty of conversations and disagreements, [but’ given what we have seen, and given the lack of success of what I thought was a moderated approach, I believe there should be a presumption against admitting these lyrics.

Often you see or hear lyrics that are really generic. You know, “I did a drive-by with a handgun or an AK 45.” But these are very generic representations of violence, which could apply to hundreds of thousands of cases in this country. So the notion that [the defendant] must be talking about some activity that he engaged in should not be presumptively true. He could be talking about generic events that anyone in the community could engage in, or that anyone who is creating lyrics could imagine, based on their own knowledge or experience or what they saw in a movie or television show or read in a newspaper.

Nielsen: I will not say that there is no such thing as a scenario in which rap lyrics might be useful. But I’m not sure I’ve seen that case yet. The only example I would point you to is a Key and Peele sketch about this very issue. And it’s hilarious. I may allow that in that scenario and that one alone, the rap lyrics, maybe, should be permissible. It is absolutely worth 10 or 15 minutes of your time if you YouTube it.

What we do know is that rap lyrics, their conventions, are such that they are largely fictional. They rely on figurative language, on exaggeration, on larger-than-life characters.

I’m not sure how useful that kind of evidence is to begin with. But what we do know from research is that when people are exposed to it, they have visceral responses that are very powerful. And I would be concerned that when you bring rap lyrics into a criminal case, the visceral response it triggers in jurors, is powerful, often too powerful. I would much rather see police and prosecutors spend their time collecting actual evidence. Our court system would be better if we didn’t allow [rap lyrics in the courtroom].

Lauren Sonnenberg is a TCR contributing writer. Readers’ comments are welcome.