A few months ago, a Federal Public Defender in California asked if I’d be willing to do some expert witness work. We talked about an affadavit and voir dire questions, and I got to work. The defendant ended up securing council, so I won’t be involved anymore (at least with this PD), but here is some of what I wrote in that time. There are some gaps, and the footnotes are really a mess—if you want a version with references, please let me know and I’ll happily send it.
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Introduction
When a prosecutor seeks to enter rap lyrics or videos into evidence, they do so with the intention of activating racial prejudices in the jurors.[1] The United States Supreme Court stated that the Constitution prohibits racially biased prosecutorial arguments. Rap music comprises political commentary from marginalized communities rendered as art and thus the lyrics are not only demonstrably fictional, but also constitutionally protected speech; consequently, their probative value is low.[2] Their introduction into evidence is less about their content and more about associating the defendant with a community that has been defined by harmful stereotypes, in this case the “Black Brute.” Through a confluence of forces, the contemporary mainstream image of a rapper perpetuates this historical stereotype.
In this affidavit, I claim that prosecutors employ racist rhetoric when they use rap lyrics as evidence. In the first part, I argue that the probative value of rap lyrics is minimal: rap music is political commentary from marginalized communities rendered in artistic form and should not be read as autobiographical.[4] In the second section, I show that “rapper” is a racialized term, intended to activate negative stereotypes harbored by jurors. In the third section, I survey relevant literature that demonstrates the prejudicial impact that lyrics can have at trial. Finally, I present research that illuminates how people rely on stereotypes in the decision-making process. Ultimately, rap lyrics should not be admissible as evidence in court because their prejudicial value far outweighs their probative value.
Part I: Artistic conventions of rap music
The musical and poetic aspects of rap music have been detailed extensively elsewhere, and I do not intend to restate those arguments here (it is unfortunate that those aspects must be “argued” at all).[5] What follows is a brief overview of rap music as an art form in support of an argument that it cannot be understood as definitively autobiographical or factual and is indeed subject to First-Amendment protections.
Rap music is political critique
M. K. Asante defines the ghetto as a place where people are forced to live.[6] More than a century of racist policies, such as deindustrialization, redlining, racial restrictive covenants, education funding, and zoning laws, have created areas in which many people of color are forced to live. These communities are subject to surveillance and overpolicing; they suffer from poor nutrition and limited health care availability; they have limited educational and employment opportunities; they have liquor stores and check-cashing stores instead of produce markets and banks. It is from these conditions that rap music emerged. Rapper KRS-One says: “Rap was the final conclusion of a generation of creative people oppressed with the reality of lack”; it is a political critique cast in musical form.[7]
Since its origins, hip hop culture generally and rap music in particular have spoken truth to power. Professor Tricia Rose writes that rap music “gives voice to the tensions and contradictions in the public urban landscape … and attempts to seize the shifting urban terrain, to make it work on behalf of the dispossessed” (22). Rappers have used their platform to call attention to gentrification, poverty, police brutality, mass incarceration, and the impact that the War on Drugs has had on their communities. When Brian Turner signed N.W.A. to his record label, he said that he was tired of only hearing one side of the story: “All I was hearing on the news was the perspective of the police and outsiders--you never get the perspective of the actual guy they’re talking about. When I saw what these guys wrote, it really hit me that their side of the story was important to tell.”[8] Counterstorytelling is a crucial component of antiracism efforts […]
Lyrics are often incorrectly presented as autobiographical, and are often presented out of context.
Many songs are written from a first-person perspective, but that does not make them factual or autobiographical. Rap music’s insistence on authenticity (“keepin’ it real”) encourages listeners to believe what they are hearing constitutes the lived experience of the rapper. First-person narrative creates the illusion that the stories are true and makes them believable. Jelani Cobb writes that “all autobiographies contain a quotient of fiction if only because memory is imperfect and in saying ‘I’ the MC is speaking for the invisible masses of his own [neighbor]hood.”[9] In general, pronouns (“I,” “you,” “we”) and many adverbs (“here,” “now,” “this”) appear to convey factual information, but are heavily dependent on context for their meaning. Ice-T describes his blending of fact and fiction: "I couldn't possibly have lived all the things that Ice-T on the records lived [...] I did what I called 'faction.' It was like factual situations--not always from me--put into fictional settings.”[10] When Slick Rick starts his song “Children’s Story” with the line “Once upon a time not long ago”--a clear example of a stock opening--we must consider if “once upon a time” means 1989 (the year the song was released), the moment in which we are listening to the song, or some other point in time entirely. And just how long ago is “not long ago?” Such language choices simultaneously reinforce and challenge the rapper’s credibility.[11]
In criminal cases, excerpts of song lyrics are often presented--often as little as a single line or pair of lines. Doing so deprives the jury of the overall context of the lyrics, which is crucial to an honest appraisal of their potential meanings. It could be that the lyrics are only excerpts, or perhaps drafts of work in progress. In the absence of the appropriate context, jurors rely on stereotypes to make judgements.
Consider the spoken dialogue that serves as the intro to “It’s On,” the first song on Ice-T’s 1993 album Home Invasion:
[male speaker]
Yo, Ice--the organization say they can't stay in business with us any longer. What you gonna do?
[Ice-T]
We always knew we were gonna come to this point sooner or later. We have absolutely no option but to move forward. We'll have to set up our own distribution, manufacturing… run a totally independent organization and operation. We still got our connections in Texas, Miami, New York, Chicago, Detroit, and soldiers on the street willing to die. I can't put any cut on the product. I just can't live like that.
Most listeners immediately jump to the conclusion that the two are talking about drug dealing; however, this was the first album released on Ice-T’s own independent record label after Warner Brothers released him from his contract following the “Cop Killer” incident. Knowing this, it becomes clear that Ice-T is using the drug game as a metaphor for the music industry. The album’s title suggests a violent burglary; however, the album’s cover art reveals a more figurative meaning. On the cover, a young white man is seated on the floor and wearing headphones, surrounded by cassette tapes of Public Enemy and Ice Cube, and books by Malcolm X, Donald Goines, and Iceberg Slim. The real home invader in this case is the version of history that the young man is being exposed to--a version not typically taught in predominantly white schools.
The role of the persona, and character types
Just like actors, rappers often play different characters in order to tell more compelling stories. And as with actors, it would be wrong to conflate the thoughts and deeds of the character with the thoughts and the deeds of the actor: no one has arrested Al Pacino for the many gangster roles that he has played over the years.[12] Many rappers avoid using their given name and use a persona when they perform. Some artists have multiple personae: Marshall Mathers performs using his given name, but also raps as Eminem and Slim Shady, occasionally navigating all three characters in the course of a single song. Daniel Dumile began his career as Zev Love X; after the group to which he belonged disbanded, he returned after a hiatus as a solo artist, MF DOOM. Rappers may adopt more generic characters for a particular song: in “I Gave You Power,” Nas raps from the point of view of a pistol that jams in the heat of the moment, preventing the shooter from taking a life; J. Cole tells the story of a young couple in “Lost Ones,” rapping from the perspective of the young man in the first verse, his girlfriend in the second, and an omniscient figure that provides an external perspective on the story in the third.
As a direct result of the commercialization of rap music in the early 1990s, a few stock character types have come to dominate the genre. These archetypes--the gangsta, pimp, and ho--have their origins in badman and trickster figures that can be found in Black art forms going back centuries.[13] I will address the significance of these figures to the present argument in more detail below.
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[1] McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987). Bowman (2020, p. 2) indicates that this mention appears in a footnote to the case, and that SCOTUS has never directly addressed the issue of race-based prosecutorial misconduct.
[2] For an overview of the use of rap lyrics in criminal trials, see Nielson and Dennis (2019).
[3] For a concise overview of the “Black Brute” stereotype, see the Jim Crow Museum’s online exhibition at https://www.ferris.edu/jimcrow/brute/. A more detailed account of the emergence of this stereotype appears in George M. Fredrickson’s The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914. New York: Harper Torchbooks, 1971, and Plous and Williams [cited in Alford, note 74]
[4] Because rap music is both a form of artistic expression and political critique, it should be considered protected speech under the First Amendment; however, in the majority of the cases that have introduced rap lyrics as evidence, only in very few instances have the lyrics been excluded on First-Amendment grounds: see Nielson and Dennis, chapter 4 for a discussion of this issue.
[5] See, for example, Rose (1994), Krims (2000), Kajikawa (2015).
[6] M. K. Asante, It’s Bigger Than Hip Hop: The Rise of the Post-Hip-Hop Generation (New York: St. Martin’s Press, 2008), 39-41.
[7] KRS-One, Ruminations (New York: Welcome Rain, 2003), 127.
[8] Alex Henderson, “Active Indies,” Billboard (December 24, 1988), R-16.
[9] Cobb 112-3. See also Imani Perry, Prophets of the Hood (Durham, NC: Duke University Press, 2004), 38-9.
[10] https://www.npr.org/2011/04/27/135771115/ice-t-from-cop-killer-to-law-order
[11] Berry 2018.
[12] It is worth noting that the film Scarface (1983) was based on a 1932 film of the same name, which was inspired by the real-life exploits of Al Capone and his men. The film has inspired countless rappers, most notably Brad Terrence Jordan, who raps under the name Scarface.
[13] See for example, Jelani Cobb (2007), Eithne Quinn (2004), Henry Louis Gates (1989); Cheryl Keyes (2002) suggests a distinct set of categories for women rappers.