YOUNG THUG ON TRIAL: THE CONTROVERSY OF USING RAP LYRICS AS EVIDENCE

Author: Morgan Porter, Associate Editor

Popular rapper, Young Thug (whose birth name is Jeffrey Lamar Williams), was indicted in May of 2022 along with 27 other defendants associated with YSL record label. The defendants were indicted for conspiracy to violate the Racketeer Influenced and Corrupt Organizations (RICO) Act and participation in related criminal activity.[i] The 88-page grand jury indictment refers to YSL as a “criminal street gang” and lists 182 different overt acts that the State of Georgia argues were in furtherance of this conspiracy.[ii] Among these acts are lyrics from Young Thug’s popular songs.[iii] The rapper’s defense attorney, Brian Steel, moved to exclude these lyrics on the basis that they are constitutionally protected speech and would be unfairly prejudicial if admitted into evidence.[iv] Fulton County Superior Court Chief Justice, Ural Glanville, ruled in opposition, thus allowing the prosecutors to introduce 17 sets of lyrics so long as relevance is established.[v]

The admissibility of rap lyrics as evidence is determined by both constitutional principles and the applicable rules of evidence.[vi] Constitutional objections to the admission of such evidence are often unsuccessful because the First Amendment does not prohibit the use of speech to either (1) establish the elements of the charged crime, or (2) prove motive or intent of such crime.[vii] In the case of Young Thug’s lyrics, prosecutors were successful in arguing for their admission based on these permissible purposes.[viii] Fulton County Prosecutor, Fani Willis, defended the use of rap lyrics in criminal trials, stating, “I think if you decide to admit your crimes over a beat, I’m going to use it.”[ix] Critics argue that while this approach is intuitive for literal, testimonial confessions, it differs when applied to creative expressions such as rap, where lyrical hyperbole is used.[x] Rap lyrics can be easily misinterpreted when the origin of such music is disregarded.[xi] Rap music was and remains an avenue to document the conditions of urban life, portraying violence, crime, and protesting social injustice.[xii] The lyrics are rarely meant to be taken literally, which is particularly relevant today as artists are increasingly pressured by their labels to release more violent and provocative works.[xiii]

The rules of evidence allow for additional protection from the admission of rap lyrics in criminal proceedings. The Federal Rule of Evidence 403 and the Georgia equivalent, Georgia Code 24-4-403, permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.[xiv] While this evidentiary argument sometimes leads to the exclusion of rap lyrics, courts often hold that such evidence is probative enough to outweigh any unfair prejudice, including the Fulton County Court in Young Thug’s case.[xv]  Critics argue that this rule fails to account for the unfair prejudice that can occur due to the bias against rap music and its artists.[xvi] Researchers have discovered that the admission of lyrics from rap music, a historically Black genre, can infect jurors with anti-Black racism regardless of whether the defendant themself is Black.[xvii]

State and federal legislatures have acted to remediate the ineffectiveness of both constitutional and evidentiary protections against the admission of rap lyrics into evidence in criminal proceedings. In 2022, California signed into law the Decriminalizing Artistic Expression Act, which amended its rules of evidence to require courts to consider specific factors when balancing the probative value of such evidence against the danger of unfair prejudice.[xviii] The rule establishes that the probative value of such creative expression is minimal unless it is created near in time to the charged crime, bears a sufficient level of similarly to the charged crime, or includes factual detail not otherwise available.[xix] The rule also clarifies that undue prejudice includes the possibility that a trier of fact may treat the expression as propensity for criminality and inject racial bias into the proceeding.[xx] In the same year, Congress introduced the Restoring Artistic Protection (RAP) Act which seeks to amend the federal rules of evidence to limit the admissibility of a defendant’s creative expression in criminal proceedings.[xxi] The bill requires the government to show by clear and convincing evidence that the defendant intended the literal meaning of the expression.[xxii] If this threshold is met, the government must then prove by clear and convincing evidence that the creative expression refers to the specific facts of the crime alleged, is relevant to a disputed issue of fact, and has distinct probative value not provided by other admissible evidence.[xxiii]

Artists and industry stakeholders have applauded the legislative reform as a step in the right direction towards protecting artists and continue to pressure lawmakers to enact limits on the admissibility of rap lyrics in court proceedings.[xxiv] Hip hop executive and creator of the #ProtectBlackArt movement wrote, “This practice isn’t just a violation of First Amendment protections for speech and creative expression. It punishes already marginalized communities and silences their stories of family, struggle, survival, and triumph.”[xxv] Without further intervention from state and federal legislatures, the evidentiary use of rap lyrics in Young Thug’s trial threatens to set a dangerous precedent for how other prominent artists will be tried in the future.

[i] Indictment, The State of Georgia v. Kahlieff Adams, et.al., Case Number 22SC182273 (Fulton Super. Ct. filed May 9, 2022).

[ii] Id.

[iii] Id.

[iv] Deena Zaru, Young Thug faces trial in RICO case with rap lyrics as part of evidence. What you need to know, ABC News, Jan. 9, 2023, https://abcnews.go.com/US/young-thug-faces-trial-rico-case-rap-lyrics/story?id=96131812.

[v] Kate Brumback, Lyrics can be used as evidence during rapper Young Thug’s trial, Court TV, Nov. 9, 2023, https://www.courttv.com/news/lyrics-can-be-used-as-evidence-during-rapper-young-thugs-trial/.

[vi] Kelly McGlynn, Jacob Schriner-Briggs & Jacquelyn Schell, Lyrics in Limine: Rap Music and Criminal Prosecutions, ABA, Jan. 11, 2023, https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/2023-winter/lyrics-limine-rap-music-and-criminal-prosecutions/#ref10.

[vii] United States v. Fell, 531 F.3d 197, 229 (2d Cir. 2008).

[viii] Zaru, supra note iv.

[ix] Safia Samee Ali, Black rapper call out double standard of using hip-hop lyrics as evidence in rapper Young Thug’s criminal trial, NBC News, Jan. 13, 2023, https://www.nbcnews.com/news/us-news/black-rappers-call-double-standard-using-hip-hop-lyrics-evidence-rappe-rcna65529.

[x] McGlynn, Schriner-Briggs & Schell, supra note vi.

[xi] Amici Curiae Brief of the Marion B. Brechner First Amendment Project & Rap Music Scholars (Professors Erik Nielson & Charis E. Kubrin) in Support of Petitioner at 17-18, Elonis v. United States, 575 U.S. 723 (2015) (No. 13-983), 2014 WL 4180919, at 6-8.

[xii] Id.

[xiii] Dre’Kevius O. Huff, Rap on Trial: The Case for Nonliteral Interpretation of Rap Lyrics, 5 Savannah L. Rev. 335, 340 (2018).

[xiv] Fed. R. Evid. 403; Ga. Code §24-4-403.

[xv] See United States v, Wilson, 493 F. Supp. 2d 484, 488-89 (E.D.N.Y. 2006); United States v. Pierce, 785 F.3d 832, 841 (2d Cir. 2015); United States v. Foster, 939 F.2d 445, 456 (7th Cir. 1991).

[xvi] McGlynn, Schriner-Briggs & Schell, supra note vi.

[xvii]Adam Dunbar and Charis E. Kubrin, Imagining violent criminals: An experimental investigation of music stereotypes and character judgments, Journal of Experimental Criminology (2018).

[xviii] Decriminalizing Artistic Expression Act, A.B. 2799 (2022).

[xix] Cal. Evid. Code §352.2.

[xx] Id.

[xxi] Restoring Artistic Expression Act of 2022, H.R. 8531, 117th Cong. (2022).

[xxii] Id.

[xxiii] Id.

[xxiv] Art on Trial: Protect Black Art, https://www.protectblackart.co/.

[xxv] Id.