As district attorneys across the country have used rap lyrics to build criminal cases against artists with growing frequency since the early 2000s, state lawmakers are looking to implement a legal standard that would make it harder to use lyrics as evidence.
The Rap Music on Trial bill – sponsored by state Sen. Brad Hoylman-Sigal and Assembly Member Catalina Cruz – would limit when prosecutors can cite song lyrics and other forms of creative expression as evidence in court. Specifically, the law would only allow prosecutors to cite lyrics as evidence if they can demonstrate that the defendant meant the lyrics literally and that the lyrics refer to specific facts of an alleged crime. Prosecutors would also have to convince the judge of the distinct value of using the lyrics. While the legislation would apply to all genres of music, it was crafted in response to rap lyrics being used to indict and convict individuals as well as police’s historic targeting of Black communities.
In an interview with City & State, Hoylman-Sigal pointed to recent studies showing a “troubling pattern” showing that the use of lyrics in court is often racially motivated. “They’re not targeting white artists. They typically zero in on Black artists, and hip-hop, specifically,” he said.
State Sen. Jamaal Bailey, who is co-sponsoring the bill, told City & State that colloquialisms can often be misconstrued when rap lyrics are cited in court. “Every time somebody says ‘cool,’ they certainly aren’t talking about the temperature. If somebody says ‘they killed it,’ they certainly aren’t always talking about a homicide,” Bailey said.
When lawmakers first introduced an earlier iteration of the bill in 2021, it was met with an outpouring of support from people in the music and criminal justice spaces. Several high-profile artists, including Jay-Z, Meek Mill, Kelly Rowland and Big Sean, wrote a letter affirming their support just before the measure passed the state Senate last year. But the bill never passed the Assembly and with just a few days to go before the legislative session ends on June 8, Hoylman-Sigal and Cruz’s bill – which passed the state Senate on May 15 – seems poised to meet a similar fate. Still, despite the dwindling time, lawmakers remain hopeful that the bill might make it over the finish line.
Many hurdles remain. The bill has unsurprisingly garnered a wave of opposition from district attorneys. “The reality is if district attorneys can’t pass a test that shows that the lyrics are specific enough that they have a nexus to the alleged crime, then they probably shouldn’t be using the lyrics,” Cruz said.
While federal and state laws rule that evidence needs to be considered “reliable” and “relevant” to the crime before it can be shown to a jury, it often comes down to interpretation – in this case, whether the lyrics are proof that a criminal act occurred or if they are simply an artist expressing themselves creatively. The reality is that rap is far more likely than any other musical genre to be presented in court and interpreted literally. Lyrics have been weaponized to convict and incarcerate several rappers.
One notable case in Manhattan Criminal Court is that of Daniel Hernandez, known as rapper Tekashi 6ix9ine, who was sentenced in 2019 to two years in prison. Prosecutors played several of his songs, including “GUMMO”, “KOODA” and “BILLY” as well as his music videos, arguing that they were evidence of gang activity. Hoylman-Sigal and Bailey pointed to the case when they introduced an earlier version of the Rap Music on Trial bill.
“Right now, it’s almost like there’s an expressway if a prosecutor wants to offer rap lyrics against somebody,” said Megan Byrne, supervising attorney and director of the Racial Justice Project at the Center for Appellate Litigation. “There are no real big hurdles to overcome.”
Byrne, whose office was involved in crafting the bill, said it provides a legal framework on when rap lyrics should or shouldn’t be considered reliable and relevant evidence.
“I think this is a great model, and it’s going to be really helpful,” she said. “It’s definitely a subject that people (nationwide) are opening up to and realizing it has been an issue. It just seems like there’s all these lyrics and things that are called imaginative or creative if it’s another medium, but if it’s rap, it’s factual and indictable.”
In the absence of legislation, prosecutors are likely to continue citing rap lyrics in court. Researchers at the University of Richmond identified at least 500 cases in which prosecutors used rap lyrics as evidence in criminal trials between the early 1990s and 2019 in their book “Rap on Trial: Race, Lyrics, and Guilt in America.” The practice has become increasingly common since 2005, according to a New York Times investigation published last year.
Roger Caruth, an assistant professor in the Department of Strategic, Legal and Management Communication at Howard University, said that prosecutors increasingly began introducing lyrics in criminal trials as local artists started sharing more of their music on social media.
While he didn’t think public awareness about the practice would have risen to the height it has today without the advocacy of artists like Jay-Z and Meek Mill, Caruth said many of the questions that the issue raises have been around for a long time.
“It’s always been there in terms of the idea of artistic expression, free speech, and how do we not criminalize it or not necessarily put everybody in one blanket and look at individual accountability rather than pigeon-holing an entire genre based on some bad actors,” he said.
The practice gradually gained more national recognition, especially as law enforcement started in some areas assigning special units to use hip-hop or “social media tactics and platforms” to track down alleged crimes connected to hip-hop. NYPD detectives investigating youth gangs now spend their time monitoring amateur rappers’ music videos. “The police are obsessed with drill rappers,” said Dana Rachlin, executive director of violence interruption group We Build the Block. “They’re fans. And it translates to power and control and flexing. … There’s a real obsession to have proximity to these guys, and then control them.”
New York is far from the only state questioning the use of lyrics as evidence in criminal trials. Last year, California passed similar legislation known as the Decriminalizing Artistic Expression Act. And on the federal level, Rep. Jamaal Bowman is sponsoring a measure called the Restoring Artistic Protection Act, also known as the RAP Act. While there’s been little movement on the bill so far, he said, its passage isn’t “inconceivable,” since many of the artists who support it have been trying to garner Republican support by framing it as an issue of free speech. “The introduction of rap lyrics is often interpreted by juries as being documentary, and nonfiction in their essence, versus the storytelling and fiction that is more accepted in other genres of music, like heavy metal, rock or country music,” he said.
Like Bowman, Cruz believes this kind of legislation is necessary to prevent prosecutors from using artists’ creative storytelling against them. “We’re trying to get ahead of the game and make sure that we are protecting the First Amendment rights of urban artists to create how they want to create,” she said.
– with reporting by Jeff Coltin