Rap on Trial 

Can singing or writing violent song lyrics be used as evidence that a person has committed a violent crime? Over and over again, in state courts across the country, prosecutors are trying to do just that. The question for courts, including in a recent case in Iowa, is whether this tactic risks convicting people not because of what they did or didn’t do, but because of how jurors react to their taste in music.

But it’s not all musical genres that have the attention of prosecutors. They aren’t trying to prove that defendants, at some point, sang along to or wrote country lyrics comparable to Johnny Cash crooning, “I shot a man in Reno just to watch him die.” Or rock songs, like Freddie Mercury’s lyrical confession that he “just killed a man, put a gun against his head, pulled my trigger, now he’s dead.” Or pop hits like Taylor Swift’s song “no body, no crime,” where she sings about murdering her friend’s husband.

Instead, in case after case, when prosecutors introduce music as evidence, it’s rap music.

One study identified almost 700 cases since the late 1980s where rap lyrics have been used as evidence, usually against criminal defendants. For instance, in the highly publicized trial of the rapper Young Thug in Georgia, the court allowed 17 sets of the rapper’s lyrics into evidence. A California appellate court is currently considering the same issue in People v. Sullivan, in which six rap videos and 12 pages of rap lyrics were used at trial.

Last month, the Iowa Supreme Court considered the admissibility of rap music in State v. Canady, in which the defendant was convicted of involuntary manslaughter following a deadly shooting outside a bar. Lawrence Canady had initiated a fistfight with the victim, Martez Harrison. A friend of Canady’s, Dwight Evans, shot Harrison while Canady was punching him. At trial, the prosecution offered, and the judge allowed, a video showing Canady and Evans rapping along to a “diss track” by a Chicago rap group. Although neither Canady nor Evans had written the track, the prosecution argued that it was relevant because one of the names in the lyrics sounded like Harrison’s alleged nickname.

Canady appealed, and the case eventually reached the Iowa Supreme Court. The American Civil Liberties Union, where we work, as well as the ACLU of Iowa, submitted an amicus brief arguing that rap is an art form that relies on hyperbole — not a factual account of violent conduct — and that admitting the video into evidence unfairly prejudiced Canady.

The Iowa Supreme Court upheld the admission of the rap video, but for narrow and fact-specific reasons. Canady’s involvement in the violent assault was undisputed, the court observed. Thus, from the court’s perspective, the key issue was whether “Canady knew or intended that Evans would kill Harrison.” According to the court, the video of Canady and Evans rapping together was relevant because it tended to “rebut the notion that Evans acted alone . . . without Canady’s knowledge or approval” when he shot Harrison while Canady was punching him — not because it could convince a jury that Canady was involved in the altercation in the first place. As a result, applying a deferential standard of review for appellate challenges to evidentiary rulings, the Iowa Supreme Court held that the trial court had not abused its discretion in admitting the rap video in Canady’s case.

But the Iowa Supreme Court acknowledged that, in cases not involving the peculiar facts of Canady’s case, other courts had expressed concerns about the risk that a jury will find that “someone committed a particular act of violence because that person rapped about acts of violence.” To address these risks, the court went on, some decisions “have insisted on evidence tying the rap music to the specific circumstances of the charged crime.” Others, the court continued, “have concluded that rap music evidence should be excluded when the link to the defendant or charged crime is attenuated.”

For at least three reasons, courts are right to be wary of allowing this evidence.

First, rap and hip-hop are ubiquitous, and treating someone’s enjoyment of those genres as though it carries some evidentiary value is likely to have an undue impact on criminal trials, particularly trials of people of color. Rap is arguably the most popular genre in the United States and across the world. Hip-hop is a music genre and cultural movement born out of the South Bronx in the 1970s. It is inextricably connected to Black Americans and Black culture. Rap music, the musical element of hip-hop, is a sophisticated and poetic art form.

Second, rap is not journalism; it relies on exaggeration, hyperbole, and clever manipulation of language. As University of Georgia School of Law’s Andrea Dennis has explained, rap lyrics consist of “constructed images, metaphor, braggadocio, or exaggerated storylines.” For example, in 1992, rapper Ice-T’s rap metal band Body Count released “Cop Killer,” with lyrics about murdering police officers and protesting police brutality. But Ice-T has made clear that he is “singing in the first person as a character who is fed up with police brutality.” More recently, in her hit song “Kill Bill,” SZA sings about murdering her ex-boyfriend and his new girlfriend. But the murders are fictional; the song alludes to the Quentin Tarantino film of the same name.

Third, using rap lyrics in criminal trials risks undermining free speech protections. Music and lyrical expression — including rap music and lyrics — are protected by the U.S. Constitution and state constitutions, which are often interpreted to provide stronger protection than the First Amendment.

Finally, allowing rap lyric evidence in criminal trials creates a high risk of unfair prejudice in a defendant’s case, because it can trigger negative stereotypes about rap or about Black people. Social science research shows that juries are more likely to form negative perceptions of defendants who are associated with rap music. In one study, researcher Carrie Fried asked participants to read a set of violent lyrics taken from a 1960 folk song and falsely told them that the lyrics were from either a rap song or a country song. The participants who were told that the lyrics were from a rap song were significantly more likely to say that the song was offensive, dangerous, likely to incite violence, and in need of regulation.

In 2016, researchers from the University of California, Irvine, replicated Fried’s experiment and findings. In a 2018 study, two of those same researchers found that people who read the same set of lyrics were more likely to assume that the songwriter was involved in gang or criminal activity when they were told that the lyrics were from a rap song rather than a country or heavy metal song.

The Iowa decision will not be the last word on these questions. Indeed, a new documentary on Paramount+, As We Speak: Rap Music on Trial, shows just how widespread the use of rap lyrics in criminal cases has become. But this is wrong. Artists across many genres invoke violence — from Quentin Tarantino to Stephen King — without having their art used against them. Rap songs should be no different. And so the ACLU will be on the lookout for cases raising this important issue at the intersection of criminal justice, race, and free speech.

Bridget Lavender is a Skadden Fellow with the ACLU’s State Supreme Court Initiative (SSCI). 

Matthew Segal is a senior staff attorney with the SSCI. 

The ACLU filed an amicus brief in State v. Canady.