Rappers’ Rhymes Are not Admissions to Crimes: Eliminating the Unlawful Use of Rap Lyrics against Rappers in Criminal Proceedings

Abstract

Rap is well-established as a predominantly black genre. Among the 500 readily identifiable criminal cases where courts admit rap lyrics against rappers, an overwhelming majority led to young black men’s convictions. Because society believes rap is “more literal, offensive, and in greater need of regulation” than country, punk rock, or heavy metal, most rap lyrics contain unfair prejudice which substantially outweighs the probative value of the lyrics in the eyes of a jury. Therefore, courts often misapply Federal Rule of Evidence (FRE) 403 to rap lyrics when they admit rap lyrics into evidence. \n \nJudges also participate in discrimination against young black male rappers because rap is so inextricably linked to black men and judges usually admit unfairly prejudicial rap lyrics into evidence against the rapper defendant, even though rap lyrics are usually unreliable sources of literal admissions of guilt. This discrimination is so prevalent today that it violates the Fifth Amendment Due Process Clause under Bolling v. Sharpe because it results in grossly unfair outcomes in the American justice system against young black men. \n \nAdditionally, prosecutors commonly use rappers’ lyrics against rappers as evidence of literal admissions of guilt even though the First Amendment is intended to protect artistic expressions and rappers’ lyrics are usually not specific enough to be literal admissions. Therefore, judges also violate rappers’ First Amendment right to free speech when they admit lyrics that are not literal admissions of guilt. Unfortunately, the Supreme Court of the United States’ majority opinion did not discuss in depth the issue of the First Amendment on the most recent criminal rap case, Elonis v. United States. By avoiding the First Amendment issue, the Supreme Court left addressing rappers’ plight until another day. \n \nAccordingly, this Article is the first to propose that the Supreme Court adopts this Article’s unique and new stringent factor test into the Federal Rules of Evidence. This Article also proposes additional safeguards. For instance, the jury must be given jury instructions limiting the scope of the rap lyrics and providing a background on the realities of rap and its negative treatment in society. Lastly, defendants should be highly encouraged to hire an expert in rap to explain their prejudicial value if the prosecution wants to admit those lyrics into evidence. These new safeguards will serve to lower the chance of a court wrongfully admitting a rapper’s unfairly prejudicial lyrics into evidence against him in a criminal trial, give young black men a better chance at a fair trial, and allow for a broader right to freedom of expression. If this is not immediately remedied, other entertainers including comedians, horror story novelists, painters, and more could be convicted of crimes they did not commit simply for their artistic expressions.