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Tuesday, October 27, 2020

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Music Mondays | Five key points from "Rap On Trial"

<p><em>Graphic by YounHee Oh</em></p>

Graphic by YounHee Oh

Editor's note: This article is part of the University of Richmond Parson's Music Library staff blog series, Arachnophonia.  

In their new book, “Rap On Trial: Race, Lyrics and Guilt in America,” University of Richmond professor Erik Nielson and Andrea Dennis, Chair of Law at the University of Georgia School of Law, rebuke prosecutors' use of rap lyrics as evidence of a defendant’s guilt in U.S. criminal trials. 

In doing so, they document how the U.S. criminal justice system's policing of hip-hop and rap music has evolved, and elucidate the dire consequences and First Amendment concerns of using rap lyrics to convict and incarcerate young men of color. 

Here are five deeply concerning takeaways:  

1. Rap lyrics are almost always permitted as evidence to prosecute serious crimes like murder, robbery and drug trafficking 

Throughout their research, Nielson and Dennis have identified more than 500 cases across the U.S. in which rap lyrics were used as evidence in a criminal trial. In some cases, the prosecution introduced a defendant’s lyrics as substantiating evidence of the defendant’s guilt in some crime. Other times, the lyrics were the crime. 

According to the New Jersey ACLU, rap lyrics were permitted as evidence in 80% of cases that considered their admissibility. But Nielson and Dennis say the number, according to their research, is significantly higher. 

2. Police and prosecutors target amateur rappers who are almost always young men of color

In roughly 95% of cases involving rap lyrics, the defendant is a young, black or Latino aspiring rapper with a local fan base, if any fan base at all. Dennis and Nielson leave no doubt that the defendant's economic and social background is critical to whether prosecutors will use the defendant's lyrics as evidence against them. 

Famous and professional rappers get a pass when it comes to lyrical content. Police and prosecutors wouldn't pursue a rap on trial case against Eminem, for instance. But if the defendant isn't wealthy or famous, which they rarely are, prosecutors do whatever they can to delegitimize the artistic expression of the defendant's lyrics, according to "Rap On Trial." 

3. Prosecutors use rap lyrics to convince jurors of the defendant’s “true character”

By Dennis and Nielson's analysis, police and prosecutors nationwide interpret and present to jurors rap music as autobiographical. A training manual written by a California prosecutor says that, through music lyrics, prosecutors "can invade and exploit the defendant's true personality." The manual tells prosecutors not to be fooled by the defendant's nice courtroom attire. 

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"The real defendant is a criminal wearing a do-rag and throwing a gang sign," according to the manual.  

In the hands of prosecutors, rap lyrics are taken out of context and construed as accurate depictions of the defendant’s real life, despite the art form's well-known tradition of hyperbole. Because of this, defendants will often plead guilty in exchange for a lesser sentence, knowing that their lyrics, presented by prosecutors, might bias the jurors. 

To introduce lyrics as evidence, prosecutors often argue that the lyrics they wish to introduce are evidence of the defendant's confession, motive, knowledge or ability to commit the crime in question. If a defendant is being accused of murder, for instance, prosecutors will cherry pick from the defendant's rap lyrics those most evocative of murder.

Prosecutors have also used rap lyrics to argue for harsher sentences. Nielson and Dennis have identified thirty cases in which prosecutors used a defendant’s lyrics to argue that the defendant’s “true character,” as exposed in his lyrics, was so beyond any hope of rehabilitation that he should be sentenced to death.

In at least one case, prosecutors used a defendant’s lyrical abilities to argue that he was mentally stable and intelligent enough to be executed. 

4. Rap lyrics and videos are used to warrant “gang enhancements”

If prosecutors can show that the crime the defendant is standing trial for was committed on behalf of or in association with a gang, prosecutors can request a “gang enhancement,” which can double a defendant's sentence. In some states, gang enhancements allow for juveniles to be charged as adults. 

Prosecutors regularly use rap lyrics to seek gang enhancements. If a defendant references gang themes in his lyrics, or even just mentions certain neighborhoods, prosecutors will use those rap lyrics to connect the defendant's crime to gang activity. 

Increasingly common is the use of rap music videos to justify gang enhancements. Dennis and Nielson have identified cases in which prosecutors used rap music videos to justify a gang enhancement for defendants who were seen in the background of a music video. 

5. "Gang experts" routinely use rap music and videos to surveil communities 

Dennis and Nielson make clear that, although “Rap On Trial” is focused on the use of rap lyrics as evidence in criminal trials, police and so-called "gang experts" nationwide use hip-hop, rap music and videos to surveil communities, identify suspects and justify arrests, all before rap enters the courtroom. 

Michael Render, also known as “Killer Mike” from the Atlanta, Georgia hip-hop duo “Run The Jewels,” is a close friend of Nielson’s and wrote the foreword to “Rap On Trial.” 

“Right now, aspiring rap artists need to know they are being targeted by the authorities,” Render wrote, “and they need to balance their right to free speech -- and their desire to push the envelope of free speech -- with the reality that police are watching.” 

Contact features writer William Roberts at william.roberts@richmond.edu. 

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