By: Melissa Bergmann, Senior Editor
The criminal trial of 31-year-old Atlanta rapper, Jeffrey Lamar Williams (“Young Thug”), as well as over two dozen of his co-defendants, began in February 2023 and is currently still in the jury selection phase. Young Thug was arrested in May 2022 and charged with conspiracy to violate Georgia’s Racketeer Influenced and Corrupt Organization Act (“RICO Act”), as well as additional gun and drug charges. Prosecutors accuse Young Thug of founding Young Slime Life (“YSL”), a street gang affiliated with the national Bloods gang. YSL allegedly committed multiple murders, shootings, and carjackings over the past decade.
The indictments of Young Thug and one of his co-defendants, Sergio Kitchens (“Gunna”), included the artists’ rap lyrics. Prosecutors allege these rap lyrics are overt acts “in furtherance of the conspiracy.” For example, Young Thug’s indictment quotes the lyrics: “I’m the VIP and I got that pistol on my hip, you prayin’ that you live I’m prayin’ that I hit” and “I never killed anybody but I got something to do with the body.”
Researchers report that over the past 30 years prosecutors used rap lyrics in more than 500 cases as evidence against criminal defendants such as Snoop Dogg, NBA YoungBoy, Bobby Shmurda, and Tekashi 6ix9ine. Prosecutors often introduce an artist’s rap lyrics as evidence of the criminal defendant’s “confession to the crime or circumstantial evidence that the defendant committed the crime,” presented as “proof of intent, knowledge, ability, [or] motive.” Prosecutors also use rap lyrics during the sentencing phase to “portray rappers as dangers to their communities.” Furthermore, like in Young Thug’s case, prosecutors used rap lyrics and music videos to show membership in a gang or connections between gang members.
The multitude of cases sparked a debate as to whether a rap artist’s lyrics should be admissible at trial. The prosecutor in Young Thug’s case, Fulton County District Attorney Fani Willis, defends the use of lyrics as evidence, stating: “I think if you decide to admit your crimes over a beat, I’m going to use it…[y]ou do not get to commit crimes in my county, and then get to decide to brag on it, which you do that for a form of intimidation and to further the gain and to not be held responsible.” A 2004 manual of the American Prosecutors Research Institute even encouraged the use of lyrics in search warrants and trials to “invade and exploit the defendant’s true personality”. It also encouraged presenting the defendant to the court as a “criminal wearing a do-rag and throwing up a gang sign.”
However, those against the use of rap lyrics argue that the use presents Constitutional and evidentiary issues. The Constitutional arguments rest in the First Amendment’s protection against government action that may chill constitutionally protected speech. Essentially, an individual may choose not to engage in constitutionally protected expressive activity for fear of punishment. This fear of unconstitutional chilling is not just theoretical— There exists contemporary instances of the chilling effect as artists such as 50 Cent and Bobby Shmurda have publicly warned artists to censor their raps in fear of their later use at trial.
Furthermore, Federal Rule of Evidence 403 allows courts to exclude evidence whose “probative value is substantially outweighed by a danger of … unfair prejudice.” Accordingly, individuals against the use of rap lyrics as evidence argue that rap lyrics should be excluded from evidence because their probative value is minimal. This is due to the idea that rap lyrics are meant to be creative expression and works of fiction. This is proven by the fact that artists often write under fictional personas and use lyrical hyperbole—The lyrics are not meant to be perceived as an autobiographical account of the artist’s life. Lyrics hold a high prejudicial value because there exists pervasive bias against rap music and a high likelihood that juries could be led to believe that the events in the rap lyrics are true. The chance of prejudice is bolstered by the fact that the use of lyrics as evidence has a history of racism, as rap artists are most commonly Black individuals and rap lyrics are used as evidence disproportionately more than any other type of art.
The United States District Court for the Eastern District of Pennsylvania adopted this line of reasoning in Bey-Cousin v. Powell, where the court denied the use of hip-hop artist Muadhdhin Bey-Cousins’ lyrics against him at trial. The court stated that the First Amendment requires courts to start with a presumption that “art is art, not a statement of fact,” which may be rebutted by the prosecution presenting that the “art is the artist’s attempt to tell a factual story.” In support of this stance, the court stated, “Freddy Mercury did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘pull[ing] the trigger.’ Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting ‘a man in Reno just to watch him die.’” Some states have also taken action against the admission of an artist’s art as evidence at trial. New York and California both passed legislation limiting prosecutors’ ability to cite lyrics in cases. At a federal level, in 2022, Reps. Jamaal Bowman and Hank Johnson introduced the Restoring Artist Protection Act, that would ban the use of lyrics from being used as evidence in legal claims.
Disclaimer: Since this trial is still ongoing at the time of publication, some details may no longer be accurate.
https://www.newyorker.com/culture/culture-desk/the-controversial-use-of-rap-lyrics-as-evidence · https://www.rollingstone.com/music/music-news/fulton-county-da-rap-lyrics-evidence-young-thug-gunna-1234584227/
Bey-Cousin v. Powell, 570 F. Supp. 3d 251 (E.D. Penn. 2021).