Use of Rap Lyrics at Trial

Whether the prosecution can use rap lyrics as evidence of a defendant’s guilt comes up regularly in criminal cases. Researchers have found evidence of rap lyrics being introduced in hundreds of criminal cases nationwide. In North Carolina, the use of rap lyrics was upheld in the unpublished Court of Appeals decision, State v. Allen, NC COA05-1480 (2006). The Court of Appeals affirmed the trial court’s finding that the lyrics were sufficiently similar to the facts of the case to be admissible over Rule 401 and Rule 403 objections. The UNC School of Government Criminal Law Blog addressed the issue here.

However, other courts have struck down convictions based on rap lyrics, including the Supreme Court of New Jersey which found in 2014 that lyrics had little connection to the case and risked prejudicing the jury in State v. Skinner, 218 N.J. 496 (2014). The opinion and an ACLU Amicus Brief in the case are available here. An additional 2020 amicus brief on the admissibility of rap lyrics by the ACLU in a Tennessee case is available here.

Dr. Charis Kubrin, a Professor of Criminology, Law and Society, has researched prosecutorial use of rap lyrics and mistreatment of the lyrics as autobiographical. Dr. Kubrin’s TEDx talk, The Threatening Nature of…Rap Music? describes her research on the misuse of rap lyrics in criminal trials and a study showing that mock jurors view lyrics as more threatening and dangerous when the same words are described as rap lyrics versus when jurors are told they are country music lyrics.

Kubrin and Dr. Erik Nielson of the University of Richmond published an article, Rap on Trial in the journal Race and Justice in 2014. Kubrin and UCI Clinical Professor of Law Jack Lerner have a website dedicated to shedding light on this issue and includes a Rap on Trial Legal Guide for Attorneys, Brief Bank, and Case Compendium. The Legal Guide covers evidentiary and First Amendment challenges to admitting lyrics at trial and suggestions for jury selection.

Counsel seeking to introduce expert testimony on rap music should offer it under the “or otherwise” portion of 702. Rule 702 specifies, “[i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion, or otherwise.” The “or otherwise” was added when Rule 702 was amended in 2011 and allows for testimony of an education or background expert who didn’t do testing in the case, but has expert information to provide to the fact finder. This type of expert can “assist the trier of fact” by explaining common rap conventions that may be unfamiliar to judges, lawyers, and jurors. This testimony might help the court understand the likelihood of jurors misunderstanding the meaning of the lyrics and assuming them to be more relevant and threatening than they actually are.