Should Rap Lyrics Be Used as Evidence in Criminal Trials?

Rap lyrics and other forms of “creative expression” would have to meet steep criteria to be used as evidence in court under legislation introduced this month in New York.

“Art is creative expression, not a blueprint of criminal plans. Yet we’ve seen prosecutors in New York and across the country try to use rap music lyrics as evidence in criminal cases,” New York state Sen. Brad Hoylman, a Democrat from Manhattan and the bill’s co-sponsor, said in a statement. “It’s time to end the egregious bias against certain genres of music, like rap, and protect the First Amendment rights of all artists.”

If enacted, the bill would make New York the first state with a law that explicitly addresses the use of rap lyrics as evidence, though courts in other states have taken different views on the matter for years. For example, the New Jersey Supreme Court ruled in 2014 that “one cannot presume that simply because an author has  chosen to write about certain topics, he or she has acted in accordance with those views.” 

​​“One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story ‘The Tell–Tale Heart,’ simply because of their respective artistic endeavors on those subjects,” the justices wrote. “Defendant's lyrics should receive no different treatment.”

But other states have admitted rap lyrics as evidence, usually when their content consists of what a court deems a strong link to the crime in question. In a 2012 murder case in Indiana where the defendant was charged with killing his stepmother after her body was found in his car, the court allowed prosecutors to introduce lyrics he penned about pulling a dead body “from the trunk of my car.”  In January, a Maryland appeals court allowed prosecutors to use a defendant’s lyrics against him as evidence at trial because their content bore “a close nexus to the details” of his alleged crime.

The proposal in New York, titled “Rap Music on Trial,” would amend the state’s criminal procedure law to limit the “admissibility of evidence of a defendant’s creative expression,” including “music, dance, performance, art, visual art, poetry, literature, film and other such objects or media.”

Such work could still be introduced in court, but only if prosecutors can “prove by clear and convincing evidence” that the defendant intended it as “literal, rather than figurative or fictional.”

The sponsors, both Democrats, said the bill aims to prevent the advancement of a legal precedent they said has expanded to include “the mere appreciation of others’ music.” 

“Unchecked, these practices chill free expression, transform the figurative into fact, and warp criminal courts into instruments for suppressing provocative speech,” they said in a joint statement. “Moreover, these practices ignore the foundational principle that a criminal case should be tried on the facts and not on a person’s “propensity” to commit the crime.”  

A ‘Heightened’ Standard For Art Forms

The American Civil Liberties Union has objected to the practice of using lyrics as evidence since at least last fall, when a Tennessee court used an aspiring rapper’s words to help convict him of murder. The nonprofit argued that the action violated a precedent established by the Supreme Court in 2012, when it rejected another state’s attempt to introduce a white supremacist tattoo as evidence in a murder trial. 

The Constitution, the court said then, may allow the admission of evidence “concerning one’s belief and associations at sentencing” even if they are protected as free speech, but the “narrowness of the stipulation admitted here left the evidence totally without relevance to the sentencing proceeding because the evidence had no relevance to the issues being decided in the proceeding.”

That ruling, the ACLU said, “set a heightened evidentiary standard when it comes to art forms and other protected speech, whether a tattoo or a song.”

Ultimately, the New York proposal is about protecting the “fundamental right” of free speech, state Sen. Jamaal Bailey, a Democrat from the Bronx and the bill’s co-sponsor,  said in a statement.

“The admission of art as criminal evidence only serves to erode this fundamental right, and the use of rap and hip-hop lyrics in particular is emblematic of the systemic racism that permeates our criminal justice system,” he said. “In many cases, even the mere association with certain genres, like hip-hop and rap, leads to heightened scrutiny in the courtroom and is used to presume guilt, immorality, and propensity for criminal activity. This bill will finally put an end to this grossly discriminatory practice by ensuring that there is a valid nexus between the speech sought to be admitted into evidence and the crime alleged.”

The bill is awaiting a hearing before the state Senate Rules Committee. If enacted, it would take effect immediately.