Jeffery Lamar Williams, known professionally as Young Thug, is standing trial for multiple charges, including conspiring to violate Georgia's Racketeer Influenced and Corrupt Organizations Act (RICO), participating in street gang activity, violating the Georgia Controlled Substances Act and possession of a firearm, amongst other felony charges. Williams has pleaded not guilty on all counts. Prosecutors cited several of Williams’ song lyrics in the lengthy 88-page indictment. The prosecution is using lyrics from hit songs such as “I killed his man in front of his momma, like f*** lil bruh, sister and his cousin,” “I shoot out,” and “kill em, not leaving a trace,” as evidence of Williams’ involvement in criminal activity. When asked about the questionable practice of utilizing song lyrics as evidence, the Fulton County District Attorney prosecuting the case said, “I have some legal advice. Don't confess to crimes on rap lyrics if you don't want them used.”
The problem with this mindset lies in a dangerous misunderstanding of rap music that further exacerbates the racial disparities in the United States criminal legal system. Prosecutors have introduced rap music, in the form of lyrics, music videos and album covers, as evidence in hundreds of cases, including cases where the prosecution had little evidence otherwise linking them to the crime.
The use of rap lyrics as evidence in criminal trials increased in the 2000s when law enforcement officers began investigating the social media of amateur rappers to aid in prosecuting gang activity. Erik Nielson, the co-author of “Rap on Trial,” explained that prosecutors often “cherry-pick” song lyrics to characterize the defendant in a certain way and present the lyrics without providing any greater context.
Federal Evidence Rule 403 allows federal courts to exclude evidence when its “probative value is substantially outweighed by a danger of . . . unfair prejudice.” This standard provides judicial discretion in allowing evidence despite its potential to prejudice the jury against the defendant. Giving judges this high level of discretion regarding the admissibility of song lyrics opens the door to further racial bias. Researchers have found that courts have often admitted rap lyrics as evidence despite acknowledging that they would be prejudicial because judges deemed the probative value of the lyrics as more significant.
What the legal system is getting wrong is that the probative value of rap lyrics is low and the risk of unfair prejudice is high. Rap artists frequently utilize lyrical hyperbole, reference crimes publicized in the news and write under fictional personas. Subsequently, the lyrics of a rap song can have little to no correlation with artists’ actual actions. This context around rap music is often not provided and pre-existing biases surrounding rap music have resulted in jury pools and judges predisposed to take lyrics from a rap song literally.
In 1996, social psychologist Carrie Fried conducted a study where individuals were presented with lyrics from the folk music group Kingston Trio’s song “Bad Man’s Blunder.” The song is about a man who kills a police officer, and the lyrics reflect this story. Fried told a third of the study’s subjects that the lyrics were from the Kingston Trio, a third that the lyrics were from a country singer and the remaining third that the lyrics were from a rap song. The results showed that when the lyrics were associated with a rap song or a Black artist, the subjects worried about the consequences of the lyrics and supported government regulation of the song. The same lyrics attributed to country or folk music fielded significantly less criticism.
In 2016, criminologists at the University of California, Irvine, conducted a study that yielded similar results. Researchers provided the same set of lyrics to two groups. They then told one group that the lyrics were from a country song and the other group that the lyrics originated from a rap song. When asked to rate how offensive the lyrics were and whether they believed the lyrics to be factual or fictional, participants found the lyrics to be more offensive and more likely to be true when told they came from a rap song.
This bias towards rap music is reflected by the fact that rap lyrics have been used in hundreds of criminal trials in the last 30 years, but lyrics from other genres of music have only been used in a “handful” of cases. This disparity is especially concerning, considering rap artists are predominantly Black.
California has restricted the use of rap lyrics as evidence in criminal trials to address the racial bias that the use of rap song lyrics injects into court proceedings. In 2022, California Governor Gavin Newsom signed The Decriminalizing Artistic Expression Act, which prevents using rap lyrics as evidence when it is the sole basis for prosecuting a case. New York state Senators Jamaal Bailey and Brad Hoylman introduced similar legislation through the “Rap Music on Trial” bill, which would prohibit the use of rap lyrics in court unless a judge can determine through “rebuttable presumption that there is clear and convincing evidence that the lyric has a factual nexus linking it to an alleged crime.”
Sen. Hank Johnson introduced the Restoring Artistic Protection (RAP) Act in the 117th Congress. The bill would prohibit prosecutors from using a defendant’s creative or artistic expressions against them in a criminal case, barring a few exceptions. While these pieces of legislation represent a step in the right direction, much work remains to limit the use of lyrics as evidence in criminal trials. Furthermore, there are individuals currently incarcerated after courts admitted their song lyrics as evidence whose cases should be re-examined.
In her song “Getaway Car,” Taylor Swift sings, “I'm in a getaway car … Put the money in a bag and I stole the keys.” Based on judicial history, these lyrics may have been treated differently if Swift were a rap artist. Musicians should be free to express themselves through their art without fear of it being used against them in a criminal trial, regardless of what genre of music they produce.