Rap lyrics as evidence? New York legislators want to stop the practice

Here’s something you don’t see every day: Two state senators in New York have introduced a bill to stop the use of rap lyrics as evidence in trials. 

Brad Hoylman and Jamaal Bailey, both Democrats from the New York City area, introduced the Rap Music on Trial bill last Wednesday, which would “limit the way all art, including rap lyrics, can be used in trial, unless it can be proven that the art is literal, factual and relevant, in addition to providing a ‘distinct probative value’ to the case,” Vulture reports. 

They cited, as precedent for the matter, a 2019 case against the Nine Trey Gangsters, in which lyrics from Tekashi 6ix9ine were “used to compel (a defendant) into becoming a government witness to avoid harsher sentencing,” and a ruling from earlier this year in Maryland, which which lyrics were upheld by an appeals court as evidence worth considering in a murder trial against Lawrence Montague.

Vulture points to the case of Drakeo the Ruler, a California rapper whose lyrics were used in a 2016 murder trial that saw him first convicted and later acquitted after years in prison. But others, including Killer Mike, Chance the Rapper, Meek Mill, 21 Savage and Fat Joe have all spoken out about using rap lyrics as evidence in trials since at least 2019, with all of them signing to an amicus brief on behalf of Jamal Knox, better known as Mayhem Mel, who was sentenced to two years in prison during a trial in which his lyrics were presented as evidence. 

“Art is creative expression, not a blueprint of criminal plans,” Hoylman says. “Yet we’ve seen prosecutors in New York and across the country try to use rap music lyrics as evidence in criminal cases, a practice upheld this year by a Maryland court. It’s time to end the egregious bias against certain genres of music, like rap, and protect the First Amendment rights of all artists.” 

Adds Bailey, “The right to free speech is enshrined in our federal and state constitutions because it is through this right that we can preserve all of our other fundamental rights. 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. 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,” All Hip Hop reports. 

There’s precedent for considering such a change to the New York state law: in 2014, the New Jersey Supreme Court granted a new trial for a man whose lyrics were used as evidence to convict him of attempted murder. Vonte Skinner was charged with first-degree attempted murder in 2006 for a 2005 shooting that left a man paralyzed from the waist down. The victim said he was shot by Skinner because the victim owed money to a drug dealer both men worked for and a search of Skinner’s car uncovered graphically violent lyrics in notebooks. The jury in the first trial failed to reach a unanimous verdict, but the lyrics were read out loud during a second trial even though they did not specifically refer to the victim’s shooting. Skinner was found guilty and sentenced to 30 years in prison for attempted murder, aggravated assault and aggravated assault with a deadly weapon, but an appeals court later overturned the conviction. Eventually, the New Jersey Supreme Court ruled that the admission of “inflammatory rap verses, a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against (Skinner).”

These kinds of questions went all the way to the Supreme Court but the judges fell short of answering whether lyrics were considered protected speech under the First Amendment. In that case, Anthony Elonis was arrested in December 2010 and charged with violating a federal anti-threat statute for allegedly threatening his ex-wife, coworkers and a kindergarten class with violence after he posted lyrics on his Facebook page that appeared to promise violent action against those people and entities. Elonis even noted in comments to his own posts that the lyrics were not threats, but others disagreed. In 2015, the court ruled not on the First Amendment merits of the case but instead that prosecutors needed to show that the language posted a clear, direct and actionable threat against a person, rather than that a “reasonable person” would find them threatening. 

Back in New York, it was unclear whether and when the proposed bill would be considered, but there is not currently a companion bill introduced in the New York State Assembly.