Research
Research
Rhyme and Reason: How Intellectual Property Law Can Inform the Use of Rap Lyrics as Evidence in Criminal Trials Download
Amanda Wang (2024)
Over the past two decades, the use of rap lyrics as evidence in criminal prosecutions in the United States has become increasingly common. The introduction of these rap lyrics into evidence proves uniquely problematic and dangerous, specifically for Black and Latino boys and men who already face systemic oppression, bias, and incarceration. Common objections to the use of these rap lyrics as evidence include a First Amendment Constitutional argument, as well as those grounded in existing evidence rules. Proposed solutions are also divergent and include: the categorical exclusion of rap lyrics as evidence, the mandated use of expert witnesses to dissect the rap lyrics in the context of the genre more generally, and the lyrics’ admission only when they explicitly discuss the crime at issue at trial. However, because this is such a new and evolving area of the law, what these solutions often lack is solid doctrinal foundations, which make it harder for consistent legislation and adjudications to follow.
This Note proposes two solutions for the admission of rap lyrics as evidence grounded in two existing Intellectual Property (“IP”) frameworks. The first solution addresses, as a threshold matter, how to determine whether rap lyrics in any given case should be admissible at all. Borrowing from trademark law’s spectrum of distinctiveness, this Note creates a similar spectrum of distinctiveness based on the proximity of the rap lyrics to the specific crime at issue in the trial. This spectrum of distinctiveness in many ways encompasses the evidence rule against unfair prejudice and should be used by judges, who themselves are subject to implicit biases and are not qualified to dissect rap lyrics. Second, for situations where rap lyrics are deemed admissible, this Note propose a solution that requires judges to, at the defendant’s request, either (1) provide a court-appointed expert to testify and contextualize the lyrics or (2) allow the defense to bring forth their own expert witness. This solution is based on a cautionary tale from copyright law: the infringement by reproduction doctrine, famously and confusingly codified in the 2nd Circuit case of Arnstein v. Porter. The Arnstein court’s categorical exclusion of expert testimony during the improper appropriation stage of analysis, relying instead on the response of the ordinary lay hearer (i.e., the jury) is “universally repudiated” by legal copyright scholars. Thus, especially when transferred to the criminal context where the stakes are much higher, the aftermath of Arnstein emphasizes the importance of always permitting, and perhaps even mandating, the use of expert testimony.
Lyrics in Limine: Rap Music and Criminal Prosecutions Download
Kelly McGlynn, Jacob Schriner-Briggs, and Jacquelyn Shell (2023)
This article will discuss the constitutional and evidentiary issues that are prompted by the use of rap lyrics as evidence in criminal trials, evaluate legislative approaches to address the issue, and ultimately propose a new framework for courts to use in evaluating whether lyrics should be admissible in a criminal trial. Ultimately, while we would not argue that rap lyrics should never be introduced as evidence, we believe that the practice is deeply problematic and must be severely curtailed.
The 0161 Rap Gap: The Marginalisation of Black Rap Musicians in Manchester’s Live Music Scene Download
LaToya Reisner and Kamila Rymajdo (2022)
Focusing on Manchester, the largest city in the north of England, this paper explores why and how Black rap practitioners have been excluded from performing and promoting rap music in its city centre during the last 20 years. Discussing the intersecting factors of policing of venues and racial bias and class stigma among Manchester’s venue owners and promoters, while also scrutinising the city’s neoliberal urban expansion and gentrification, the paper analyses the ways in which Black rappers and practitioners have been marginalised but also how they have attempted to resist and overcome these conditions. Drawing on cultural studies, critical race theory and urban geography, while employing qualitative research methods of in depth interviews, this paper builds on existing research on the marginalisation of Black rap musicians and promoters. It builds on and moves beyond the scholarly emphasis on the policing of rap genres in London to argue that discrimination faced by Black rap practitioners extends far outside the capital and is part of a wider problem of racial capitalism of which policing is but one agent.
Rap on Trial Legal Guide for Attorneys Download
Charis E. Kubrin and Jack Lerner (2022, V. 1.1)
Rap On Trial: A Legal Guide for Attorneys is a legal guide to help attorneys defend against the use of rap lyrics in criminal proceedings. This manual, co-authored by Jack Lerner and Charis Kubrin with members of the IPAT Clinic, is a comprehensive resource for attorneys dealing with rap lyrics introduced at any stage of criminal proceedings — from initial discovery to trial to sentencing. The guide includes explanations of common rap conventions that may be unfamiliar to lawyers and jurors, an overview of empirical research on rap and bias, legal grounds for evidentiary and First Amendment challenges to admitting lyrics into trial, and suggestions for jury selection.
Expert or Advocate? The Role(s) of the Expert Witness When Rap is on Trial Download
Erik Nielson (2022)
This paper considers the role of the rap music expert in criminal cases involving the use of rap as evidence. In addition to describing ways that an expert can help the defense challenge the use of rap, both before and during trial, it also offers strategies for intervening beyond the criminal justice system. These strategies may require an expert to balance the roles of objective observer on the one hand and criminal justice advocate on the other, but whatever the risks or challenges associated with this balancing act, this paper argues that doing so opens up important avenues for intervention and impact that can more effectively end the racially motivated and unjust practice of ‘rap on trial’.
R. v. Campbell: Re-thinking the Admissibility of Rap Lyrics in Criminal Cases Download
David M. Tanovich (2016)
R v Campbell is one of the few cases in North America to exclude rap lyrics as evidence of guilt in criminal cases. Unlike in Canada, the issue of criminalizing rap has received considerable attention in the United States. This article begins by documenting the Canadian experience. It is a response to the call for research by two leading American scholars on the phenomenon of putting rap on trial, Professors Charis Kubrin and Erik Nielson. After documenting and discussing 36 Canadian cases, the article examines the Supreme Court of Canada decision in R v Simard and the two leading trial decisions R v Campbell and R v Williams. Generally speaking, the Canadian cases have failed to apply a culturally competent lens when assessing probative value and, to address the relevance of race and bias, when assessing prejudicial effect. The article urges our courts to put the rap back in rap by taking a culturally competent and critical race approach to admissibility.
Rap as Threat? The Violent Translation of Music in American Law Download
Lily E. Hirsch (2014)
In Commonwealth of Pennsylvania v. Jamal Knox and Rashee Beasley (2013), the defendants were charged with making “terroristic threats” after their rap song “F* the Police” appeared on YouTube. This unique case (similar only to U.S. v. Elonis of the same year) exposes significant issues within the law: ambiguity surrounding the law’s definitions of threat and the problematic assumption at court that rap as evidence is a literal text or confessional. It also, however, reveals a certain consistency in the court’s treatment of music: general dismissal. That mishandling of music, in this case, allowed for a rather drastic translation of “F* the Police” – a court-constituted violence credited to the defendants alone.
Rap on Trial Download
Charis E. Kubrin and Erik Nielson (2014)
In criminal proceedings across the United States, rap music lyrics are being introduced as evidence of a defendant’s guilt. In this article, we draw attention to this disturbing practice, what we call ‘‘rap on trial,’’ and explore its context, describe its elements and contours, and consider its broader significance. We first offer historical context, demonstrating that although the widespread use of rap lyrics in criminal trials may be a relatively recent phenomenon, it resides within a long tradition of antagonism between the legal establishment and hip-hop culture, one that can be traced back to hip-hop’s earliest roots. We then offer examples of recent cases in which rap music has been used as evidence in trials against amateur rappers, almost all of whom are young men of color, in order to illustrate the specific ways that prosecutors present the music to judges and juries, as well as to highlight the devastating effects it can have on defendants. In the final section, we consider the elements of rap music that leave it vulnerable to judicial abuse and the artistic, racial, and legal ramifications of using this particular genre of music to put people in jail. We conclude with recommendations for further research in this area, pointing out specific areas where scholarship would most effectively expose what it means to put rap on trial.
Rap Music and the True Threats Quaqmire: When Does One Man’s Lyric Become Another’s Crime? Download
Clay Clavert, Emma Morehart, and Sarah Papadelias (2014)
This Article examines the complex and unsettled state of the true threats doctrine through the lens of the equally complicated, controversial and multi-faceted musical genre of rap. Rap, although generally protected by the First Amendment, is frequently caught in the crosshairs of criminal prosecutions focusing on whether or not it constitutes a true threat of violence. Ultimately, this Article offers suggestions for how to clarify the doctrinal issues, with rap illustrating and supporting those ideas.
When Music Takes the Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases Download
Erin Lutes, James Purdon, and Henry F. Fradella (2019)
Hip-hop’s popularity has steadily increased since the late 1980s, with it becoming the most streamed genre of music in 2017. This rise in popularity is matched by an increase in the number of criminal court cases which implement one of hip-hop culture’s primary features, rap music, as evidence. In order to build upon prior research regarding rap’s implications in legal proceedings and begin to understand what impact this phenomenon might be having, this study systematically examines how rap lyrics were used in 160 state and federal criminal cases over a five-year period of time. Using qualitative content analysis, we found that rap evidence was proffered in these cases in one or more of five distinct ways: (1) to prove gang affiliation for sentencing enhancement purposes; (2) as circumstantial evidence of the commission of a crime; (3) as direct evidence of having communicated a threat; (4) to prove motive, knowledge, intent, identity, or character; or (5) to establish what incited the commission of a crime. Each of these themes was examined and analyzed with respect to the function of rap evidence within each case. The analyses demonstrate that rap evidence is routinely admitted against defendants in criminal proceedings, even in cases in which the prejudicial effect of such evidence clearly outweighs its probative value. Conversely, courts fail to consider rap lyric evidence when offered by defendants to exculpate themselves or mitigate their potential criminal liability. We offer several public policy recommendation to address these concerns.
Bad Rap for Rap: Bias in Reactions to Music Lyrics Download
Carrie B. Fried (1996)
This research examines the recent public outcry against violent rap songs such as Ice T's “Cop Killer.” It was hypothesized that rap lyrics receive more negative criticism than other types of lyrics, perhaps because of their association with Black culture. Two experiments were conducted to examine the effect of musical genre and race of singer on reactions to violent song lyrics. The results support the hypothesis. When a violent lyrical passage is represented as a rap song, or associated with a Black singer, subjects find the lyrics objectionable, worry about the consequences of such lyrics, and support some form of government regulation. If the same lyrical passage is presented as country or folk music, or is associated with a White artist, reactions to the lyrics are significantly less critical on all dimensions. The findings are briefly discussed in terms of various models of racism and stereotyping.
Gangsta’ Rap and a Murder in Bakersfield Download
Stuart P. Fischoff (1999)
The present study explores the biasing effects of "gangsta"' rap music lyrics on S perceptions of a murder trial defendant's personality. The lyrics were those actually authored by a defendant in a murder trial on which the present author was a psychological consultant for the defense. Ss were college students with an age range of 18–56 yrs. Results strongly indicate that the defendant was seen as more likely to have committed a murder than would have been true if he had not been presented as authoring such lyrics. Surprisingly, results also show that the writing of such rap lyrics was more damning in terms of adjudged personality characteristics than was the fact of being charged with murder.
Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence Download
Andrea Dennis (2007)
Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and the use of poetic devices such as metaphor, boasting, perspective, and narrative. Likewise, jurors must be informed of such information when tasked with evaluating the weight of such lyrical evidence. Factoring this information into the admissibility analysis reveals that courts are admitting artistic evidence masquerading as real-life events, impermissible evidence of character and propensity, and unfairly prejudicial evidence. To avoid these problems, I suggest that courts considering admission of rap music lyrics written by defendants should determine the meaning of the lyrics from the artistic perspective of the defendant-lyricist as well as permit the defense to offer judges and jurors expert testimony respecting the composition of rap music lyrics. This approach can operate within the current system of evidence rules and balances the interests of defendants, the prosecution, and society.
Schoolhouse Rap Download
Andrea L. Dennis (2022)
Rap on Trial, the treatment of rap music as evidence in the American criminal legal process, is well documented and increasingly scrutinised. Research has shown that – with little restraint – police, prosecutors, probation officers and judges use rap lyrics to investigate, prosecute and punish individuals. Less noticed is that a similar phenomenon is occurring in the American K–12 educational system, which disciplines school-age youth who participate in rap culture and sometimes refers them to the juvenile or criminal legal systems for additional punishment. This article describes and analyses a small set of identified cases of this scenario, demonstrating that rap music is used to funnel youth, including vulnerable Black and Brown youth, into what has been coined the school-to-prison pipeline and exposing the extreme dissonance between hip hop and the educational system.
The Threatening Nature of “Rap” Music Download
Adam Dunbar, Charis E. Kubrin, and Nicholas Scurich (2016)
Rap music has had a contentious relationship with the legal system, including censorship, regulation, and artists being arrested for lewd and profane performances. More recently, rap lyrics have been introduced by prosecutors to establish guilt in criminal trials. Some fear this form of artistic expression will be inappropriately interpreted as literal and threatening, perhaps because of stereotypes. Only a handful of studies have examined whether rap lyrics are evaluated using stereotypes, yet these studies were conducted in the 1990s—a period of heightened scrutiny for rap—and used nonoptimal methods. This study presents 3 experiments that examine the impact of genre-specific stereotypes on the evaluation of violent song lyrics by manipulating the musical genre (rap vs. country) while holding constant the actual lyrics. Study 1, a direct replication of previous research, found that participants deemed identical lyrics more literal, offensive, and in greater need of regulation when they were characterized as rap compared with country. Study 2 was a conceptual replication (i.e., same design but different stimuli), and again detected this effect. Study 3 used the same approach but experimentally manipulated the race of the author of the lyrics. A main effect was detected for the genre, with rap evaluated more negatively than country or a control condition with no label. However, no effects were found for the race of the lyrics’ author nor were interactions were detected. Collectively, these findings highlight the possibility that rap lyrics could inappropriately impact jurors when admitted as evidence to prove guilt.
Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments Download
Adam Dunbar and Charis E. Kubrin (2018)
In criminal cases, prosecutors treat defendant-authored rap lyrics as an admission of guilt rather than as art or entertainment. Do negative stereotypes about rap music shape jurors’ attitudes about the defendant, unfairly influencing outcomes? We find that writers of violent “rap” lyrics are perceived more negatively than writers who pen identical country and heavy metal lyrics. We also find that songwriter race matters; no differences in judgments were detected between the White and Black songwriters; however, when race information was not provided, participants who inferred the songwriter was Black judged him more negatively than participants who inferred he was White.
Rap Lyrics as Evidence: What Can Music Theory Tell Us? Download
Nicholas Stoia, Kyle Adams, and Kevin Drakulich (2018)
Recent scholarship has shed light on the troubling use of rap lyrics in criminal trials. Prosecutors have interpreted defendants’ rap lyrics as accurate descriptions of past behavior or in some cases as real threats of violence. There are at least two problems with this practice: One concerns the interpretation of art in a legalistic context and the second involves the targeting of rap over other genres and the role of racism therein. The goal of the present work is translational, to demonstrate the relevance of music scholarship on this topic to criminologists and legal experts. We highlight the usage of lyric formulas, stock lyrical topics understood by musicians and their audiences, many of which make sense only in the context of a given genre. The popularity of particular lyric formulas at particular times appears connected to contemporaneous social conditions. In African American music, these formulas have a long history, from blues, through rock and roll, to contemporary rap music. The work illustrates this through textual analyses of lyrics identifying common formulas and connecting them to relevant social factors, in order to demonstrate that fictionalized accounts of violence form the stock-in-trade of rap and should not be interpreted literally.
The Irrelevance of Rap Download
Abenaa Owusu-Bempah (2022)
This article explores the question of whether (and when) rap music is relevant evidence of a crime, and how this has been assessed by the courts in England and Wales. Particular consideration is given to the courts’ assessment of factors which can affect the probative value of rap, as well as the way in which one’s views and experiences may inform determinations of relevance. It is argued that, if rap is to be admissible evidence, a more rigorous approach is required.