(CN) – This may have been the last music that Texas Trooper Bill Davidson heard before he was shot alongside a highway in 1992:
“I got a nine-millimeter Glock pistol/I’m ready to get with you at the trip of a whistle/So make your move and act like you wanna flip/I fired 13 shots and popped another clip.”
Ron Howard, whose tape of rapper 2Pac Shakur was said to be playing when he shot Davidson in the neck, was convicted and executed by lethal injection in 2005.
Should those lyrics, or ones like them, though, have anything to do with proving the guilt of someone on trial for a violent criminal offense?
Sociologist Charis Kubrin doesn’t think so, and said she’s seeing an alarming trend of prosecutors using rap music lyrics in prosecution of violent crimes. In fact, she said, she has encountered one prosecutor who had a handbook that said using rap lyrics in criminal prosecution should be a “go-to” option.
Kubrin, a professor in the Department of Criminology, Law and Society at the University of California, Irvine, has been studying the issue of crime and race for nearly 20 years.
When she started getting calls a few years ago to provide expert testimony or consultation about rap music in criminal prosecution, she figured the burst in activity would be short lived. It wasn’t.
She started testifying in criminal cases involving defendants who were young, black rap musicians or writers of rap lyrics in 2011.
“It’s been pretty much nonstop since then, which is pretty sad,” Kubrin said. “I thought it would be a one-off, but since then I have identified hundreds of cases, and testified and consulted in about 40 cases.”
Kubrin said attorneys now contact her to help craft pretrial motions in prosecutions or defense appeals. “I am just shocked at how frequently this is occurring,” she said.
When using rap music or lyrics in criminal prosecutions, Kubrin said, strategies seem to develop that the music is either evidence of a motive for a crime or represents an actual threat.
In instances like these, what should be seen as art or a First Amendment right to expression is now being used as an autobiography of the suspect or even a confession to the crime in the lyrics. Prosecutors using these tactics, Kubrin said, seem to think that “if they’ve said it in their lyrics then it must be true. They’re taking the lyrics as face value,” she said.
What prosecution and juries may be missing, though, are the nuances of rap culture, specifically the style of rap known as “gangsta.”
The trend of using rap music in criminal prosecution is growing in Canada and the United Kingdom where the “grime” music genre has emerged, according to Kubrin, who studies the connections of music and culture – specifically hip-hop and minority youth.
She tries to explain to juries the culture of rap music and how violence, sex, drugs and misogyny are rampant lyrical themes and marketing ploys, especially for aspiring rappers.
The phrase “I’ma pop a cap in his ass” is a well-worn trope and appears often in rap music, Kubrin said. That doesn’t mean the lyricist or rapper will shoot someone, she said.
“What I don’t like is the very sloppy way the lyrics are thrown in, and prosecution making claims that are patently false,” Kubrin said. “You get a jury who knows nothing about rap music, you have no context, and it’s easy to see how a jury can be completely taken aback by the lyrics.
“It’s like someone who has never seen a horror movie, then taking them to see ‘Texas Chainsaw Massacre.’ Jurors need to understand the artist and the person, and that the one and two are not the same. I’m not asking jurors or prosecutors to like it or be fans of rap music, I’m just asking them to put this in context. Without that it can horribly prejudicial. It’s still up to the jury to decide the facts of the case.”
John Hamasaki, a defense attorney in the San Francisco Bay Area, said just this week he received pretrial information from prosecutors who seek to admit five gangsta rap songs in a case he’s defending.
Hamasaki has been a criminal defense attorney in the Bay Area for nine years, and has seen how rap music as evidence has exploded recently.
“The use has really skyrocketed to a dangerous proportion,” Hamasaki said. “It’s a really interesting but challenging form of evidence.”
In California, a gang enhancement on a criminal charge can add 15 to 25 years to a sentence.
Hamasaki said the themes that are prevalent in rap music – guns, life in the inner city and gangster lifestyle – have similar parallels in country music, with its guns, women, drinking and trucks. Like Kubrin, he tries to make that connection with juries and to help keep rap from being admitted as evidence in most cases.
“You have to know the historical background of rap and hip hop,” he said.
Defendants in cases where prosecutors want rap admitted as evidence tend to be inner city young men of color. Juries, at least where Hamasaki works in California, tend to be suburban, white and middle class. When rap music is played for them or read to them, “it can difficult for juries to understand this. It kind of terrifies them,” Hamasaki said.
Rap music in criminal trials is often used as a last resort when solid evidence is not available, Hamasaki said.
“I find it pretty outrageous the way they are being used and overused. It’s backdoor character evidence,” he said.
“I’m not saying there should be a blanket prohibition on rap music as evidence,” he added, “but there needs to be a degree of specificity in the evidence. A lot of evidence is prejudicial. That doesn’t mean it can’t be admitted.”
A New Jersey Supreme Court case in 2014 overturned a trial court’s verdict on attempted murder charges. The lower court had used rap lyrics in the prosecution. In that case, a state’s witness against Vonte Skinner was permitted to read violent rap lyrics Skinner wrote which the state maintained showed motive and intent on defendant Skinner’s part.
The high court overturned the conviction, saying the prejudicial impact of the defendant’s rap lyrics outweighed any evidentiary value.
“What we need to do now is use experts and build up social science to show the danger of using music as evidence,” Hamasaki said. “We have work to do as a community, to try to allow it only in cases where it’s absolutely justified and does not unduly prejudice our clients.
“It’s up to the defense community to educate the courts of the prejudice that exists, and I don’t think we’re doing as good of a job as we could. We’re in a moment where the pendulum has swung against us and we need to kind of swing it back to the middle.”
In the lab
One of Kubrin’s earliest experiments at UC Irvine set out to determine how people view music lyrics and how those lyrics might be prejudicial.
She took a set of lyrics from a song released by the folk group The Kingston Trio in 1960 called “Bad Man’s Blunder,” and asked her study participants to decide if it was a rap lyric or folk song:
“Early one evening I was roaming around, I was feeling kind of mean … I shot a deputy down.”
Kubrin’s analysis showed that people who thought they were reading rap took the lyrics very literally, compared to the very same lyrics that were identified as being country music lyrics.
“Simply changing the label to rap makes them immediately offensive” to some people, Kubrin said.
Her work in rap music has been gratifying, she said, because she feels she’s starting to make headway in criminal defense and education.
“It’s been very helpful to defense attorneys,” she said. “I’ve made it my mission to bring attention to this.”