‘If You Decide To Admit Your Crimes Over A Beat, [We’re] Going To Use It’

Crime and Justice News

Shannon Johanni, Research Director, National Criminal Justice Association – September 13, 2022

The conversation surrounding use of rap lyrics in criminal prosecution has resurfaced after a second indictment for gang-related criminal activity relying in part on rap lyrics. Fulton County District Attorney Fani Willis spoke about the indictments, and addressed the critics, saying, “if you decide to admit your crimes over a beat, [we’re] going to use it.”

A May 2022 indictment charged Young Thug (Jeffery Lamar Williams) and Gunna (Sergio Giavanni Kitchens) –alleged members of Young Slime Life – with 56 counts including racketeering and criminal street gang activity; an additional six counts for guns and drugs were added in August. The lyrics cited in the indictment identify Williams and Kitchens as members of YSL and allegedly mention Donovan White, Jr., a rival Atlanta gang member murdered in 2015 in a drive-by shooting from a car rented by Young Thug.

In August, a 220-count indictment of 26 alleged members of the Drug Rich gang for racketeering, criminal street gang activity, kidnapping, armed robbery, assault, home invasions, auto theft, and others, also relied in part on rap lyrics.

On the home invasion counts, Willis cited lyrics from a YouTube rap video involving Drug Rich gang members that stated “me and my crew striking out/Striking in all black/Send me the drop, we’ll kick in the house.”

Courts have been grappling with prosecutors’ use of lyrics, primarily rap lyrics, for several years. Most often, appellate courts have affirmed a trial court ruling admitting lyrics. When lyrics are rejected, the explanations vary.

The most common reason is that prosecutors offered them as character evidence. With little room in state and federal rules of evidence for the use of character or prior bad acts evidence, this is a difficult strategy for prosecutors to navigate.

Another emerging challenge for prosecutors in introducing lyrics is when the expressions themselves are the charged criminal conduct. In the United States Supreme Court case of Elonis v. United States.

Anthony Douglas Elonis (“Tone Dougie”) was charged with threatening for a series of posts on social media involving “crude, degrading, and violent” rap lyrics about his ex-wife, co- workers, a kindergarten class, and an FBI agent who’d visited Elonis at his home. In 2014, the court held that Elonis’s convictions were based on an incorrect jury instruction as to Elonis’s culpable mental state – negligence, a standard which “lacks awareness of wrongdoing” – and overturned Elonis’s conviction.

The court mentioned the First Amendment only to note that it need not address it as the culpability analysis resolved the issues.

Justices Samuel Alito and Clarence Thomas dissented separately. Both argued that the majority’s conclusion that negligence was not the correct culpable mental state announced what the “law is not” rather than “what the law is.” Thomas predicted a resulting confusion about what is criminal conduct for “everyone from appellate judges to everyday Facebook users.”

The courts have found it far less problematic where, as DA Willis intends, lyrics are offered by the state as defendant’s admissions to the charged conduct. An oft cited case by critics, is Tommy Canady’s.

Canady was sentenced to life at 17-years-old for a murder two years earlier. In Canady’s trial, the prosecutor introduced a rap song that Canady released on Soundcloud within days of Semar McClain’s murder.

With little direct evidence, and some circumstantial evidence, the prosecution argued that certain lyrics were consistent with the details of the crime including a mention that victim Semar had been “caught slipping.” Canady argued that the lyrics were not autobiographical and that they did not name Semar, and instead referenced the slang term “a mawg.”

Legislators in California, New York, and the U.S. House of Representatives have introduced bills to amend the state and federal rules of evidence by adding a rule specifically focused on trial courts evaluating the admissibility of creative or artistic expression.

The three bills would essentially impose a heightened relevance inquiry for courts considering admission of a variety of mediums where there is “creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols.”

Instead of the trial court simply evaluating whether the danger of unfair prejudice outweighs the probative value, they suggest varying degrees of additional analysis. The federal and New York bills start with a presumption of inadmissibility of creative or artistic expression, placing the burden on the State to overcome that presumption.

The bills detail methods for trial courts to constrain how evidence of creative expression is admitted after admissibility has been determined. New York’s pending bill demands that the court “consider the least prejudicial mean of presenting the creative expression to the fact finder.” None of the bills has been signed into law.

The proponents of the bills, and critics of this prosecution tactic, raise both First Amendment and racial targeting concerns. They argue that use of an artist’s work against them in a criminal proceeding would have a chilling effect, reducing freedom of expression.

They also point to the prolific “weaponization” of rap lyrics – primarily “Black and brown creativity” – compared with other music genres or forms of expression, as evidence of racial targeting and bias in the criminal justice system.

When challenges to the First Amendment, rules of evidence, interests of justice, and racial biases intersect, resolution is unlikely to come quickly.