First Amendment advocates slam use of rap lyrics as evidence

"There is experimental research that shows as soon as you bring in that kind of evidence, the jury is prejudiced immediately against the defendant. In those types of cases, prosecutors are leveraging misconceptions about rap music and anti-Black bias to make an end-run around the rules of evidence," said Lerner.

These misconceptions about the genre have existed since it's very beginnings. Since its emergence in the 80s, hip-hop has been under fire for its expression of societal issues that affect Black communities such as inequality, poverty, violence, tough-on-crime policies, hyper-policing and police brutality.

Law enforcement attempted to interrupt distribution of hip-hop group N.W.A.'s song "Fuck Tha Police" in 1988 and rapper Tupac Amaru Shakur's "2pacalypse Now" album in 1992 based on claims the music incited violence, and lyrics were cited as murder confessions in accusations against Snoop Dogg in 1993 and Lil' Boosie in 2012.

According to research by Andrea Dennis from the University of Georgia's School of Law, prosecutors may try to use defendant-authored music lyrics as an autobiographical depiction of actual events, so that they'll be treated as inculpatory statements or a confession. The lyrics may also be offered as evidence of the defendant's intent, knowledge, motive, or identity respecting the crime charged. In addition, prosecutors use lyrics to construct a narrative framework or theory of the case, to paint a picture of the defendant at the time of the crime that is consistent with the prosecution's evidence.

"As long as there has been Black people on American soil, the institutions of power in the U.S. have always sought to contain and often punish Black expression," said Erik Nielson, liberal arts professor at the University of Richmond, who wrote "Rap on Trial; Race, Lyrics, and Guilt in America" along with Dennis.

According to statistics the NAACP examined, although Black people make up 13.4% of the U.S. population, they make up 22% of fatal police shootings, 47% of wrongful conviction exonerations and 35% of inmates executed by the death penalty. They are incarcerated in state prisons at five times the rate of whites and Black men statistically receive harsher prison sentences than white men who commit the same crimes, according to the U.S. Sentencing Commission.

After the "The Message" of the impoverished conditions of urban housing projects from the pioneering rap group Grandmaster Flash and the Furious Five in 1982 was ignored by those in power, the pain of civil rights struggles grew darker and hip-hop music became more aggressive over time.

These conditions are still reflective in Atlanta where the alleged crimes of the YSL gang took place. It has been repeatedly ranked as the top city for income inequality in America by the Brookings Institution, with about 30% of Black households living in poverty.

"When I testify in some of these cases, my goal is really to explain rap music as an art form because I think what underlines this practice is the sense that rap isn't real music and that the young Black and Hispanic men who are producing it are not intelligent enough to create something complex and sophisticated, and so its much easier to just read it or listen to it as autobiography," said Neilson, whose research focuses on the relationship between Black artistic expression in the U.S. and the law. "So when I'm talking to a jury, one of the things I try to point out is all of the artistry that's involved, and also the industry pressures that often motivate amateur artists to adopt these sort of violent personas."

He likened violent lyrics to other things in popular culture, like horror novels and gangster movies.

"So what I try to explain is, 'hey I know these lyrics may seem shocking to you, but its actually part of a genre and has helped fuel a multi-billion dollar industry.' You've got Kendrick Lamar winning a Pulitzer prize and there are hip-hop archives at Harvard. To criminalize it has a chilling effect on speech, particularly because a lot of rap music is political in nature, which is the type of speech that should be entitled to the most protection in this country, but we're seeing the opposite," said Neilson.

The rise of more violent music increased hip-hop’s popularity, and in 2017 it officially became America’s number one music genre, with the entertainment industry further fueling a culture reflective of the real world violence driven by lack of economic opportunity.

"America's preoccupation with violent activity is pervasive and can be found, for example, in virtually all of the entertainment industry. As a result, of the prevalence of violence in music, movies, television and video games, America has nurtured an environment that some have come to call a culture of violence," wrote Jeanita Richardson, senior policy analyst of the State Council of Higher Education for Virginia, and Kim Scott, assistant professor of Hofstra University, in a 2002 journal article.

They added, "If there is in fact a culture of violence, the true parent of rap lyrics is America herself, who financially rewards the glamorization of behaviors deemed socially unacceptable. America's urban centers in general and low-income minority communities in particular, are replete with poverty, police brutality, drug abuse, educational inequality, high dropout rates and violence. The very governmental and social systems theoretically established to protect the poor, have engendered distrust. Rap music became a cathartic outlet."

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