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Wednesday, April 16, 2008

Article of Interest: Professor Andrea Dennis' Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence

University of Kentucky College of Law Professor Andrea Dennis recently published her fascinating article, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, in the Columbia Journal of Law & the Arts (31 Colum. J.L. & Arts 1 (2007)).  In the article, Dennis notes that courts almost always allow for the admission of defendant-authored rap music lyrics as substantive criminal evidence.  Dennis contends that such rubber stamped decisions are (1) problematic because they allow the government to obtain a stranglehold on such cases, and (2) fallacious because they presume that criminal defendant-lyricists are depicting true-life, self-referential stories in their lyrics.  Dennis counters that the assessment of the admissibility and evidentiary utility of rap music lyrics requires awareness and understanding of the complexities of the art form and posits that the status quo can be ameliorated by having courts refocus their analytical perspective and allowing defendants to offer expert testimony concerning the composition of rap music lyrics to both judges and jurors.

In Part I, Dennis begins by citing a plethora of state and federal cases from across the country where courts have admitted defendant-authored rap music lyrics for a variety of purposes (cases include Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App. 2004), United States v. Wilson, No. 05-13927, 2006 WL 3083968 (11th Cir. Oct. 31, 2006), and the Taquan Neblett music store murder trial).  Dennis then proceeds to consider how judges find these lyrics admissible:  (1) as admissions of party-opponents pursuant to Federal Rule of Evidence 801(d)(2)(A) and state counterparts; (2) as "relevant" under Federal Rule of Evidence 401 and state counterparts as confessions or direct evidence of intent/motive; (3) as "other act" character evidence under Federal Rule of Evidence 404(b) and state counterparts, and (4) as non-violative of the Rule 403 balancing test based upon finding that the lyrics are prejudicial but not unfairly prejudicial.  Dennis then concludes Part I by arguing that such admissibility rulings are found upon three assumptions, all of which fail to treat rap lyrics as an art form:  (1) that understanding and interpreting rap lyrics is not a matter requiring specialized knowledge/expert testimony; (2) that rap lyrics should be literally understood, and (3) that rap music lyricists depict accurate, truthful, and self-referential narratives.

In Part II, Dennis claims that there compelling reasons to distrust these assumptions.  She begins by tracing the history of rap from its street roots to the current corporate boardroom commercialization.  Dennis claims that this commercialization has had a double edged impact:  On the one hand, it has resulted in artist images and lyrical narratives not necessarily being truthful, and on the other, the image that predominates rap music in the public eye is that of the stereotypical gangster, thug, outlaw, or criminal.  She next notes that the rap tenet of "Keep It Real" forces artists to deny that their images/lyrics are manufactured rather than authentic.  Dennis concludes Part II by indicating that, as with all art forms, rap lyrics rely on poetic/artistic devices which make it so that we should not understand them literally.  These include the use of: (1) not only personal, but also collective, knowledge in crafting lyrics; (2) metaphors and boasts, and (3) narratives, which contain facets such as role playing.

Based upon these arguments, in Part III, Dennis calls for a reconsideration of the utility of rap music lyrics as criminal evidence.  While courts treat defendant-authored rap music lyrics as inherently inculpatory, Dennis claims that when viewed in light of social constraints and artistic conventions, it is evident that rap music lyrics may falsely or inaccurately depict the occurrence of events.  She contends that rap music lyricists are not in the category of non-fiction writers but instead are akin to fiction writers, such as novelists and screenwriters.  Next, while courts treat such lyrics as permissible "other act" evidence under Federal Rule of Evidence 404(b), Dennis claims that prosecutors are impermissibly using them as propensity evidence and cites a passage from Prosecuting Gang Cases:  What Local Prosecutors Need to Know, which is inculpatory.  It exhorts prosecutors to show that "the real defendant is a criminal wearing a do-rag and throwing a gang sign.  Gang evidence can take a prosecutor a long way toward introducing that jury to that person.  Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant's true personality." (my emphasis added).  Dennis closes Part III by contending that defendant-authored rap music lyrics are unfairly prejudicial because they play on the biases of jurors against rap music.

In Part IV, Dennis concludes by presenting a two pronged approach.  First, rather than reflexively admitting  defendant-authored rap music lyrics as literal confessions, judges should begin their analysis from one or more viewpoints:  (1) from the point-of-view that rap music lyrics are metaphorical rather than lyrical; (2) from the point-of-view that rap music lyrics are fictional, abstract, and entertaining representations of life rather than truthful or accurate, and/or (3) that the information revealed or events depicted in rap music lyrics are not self-referential.  Dennis then advocates judges holding evidentiary hearings outside the presence of the jury where they determine whether such lyrics are relevant and admissible by resolving seven questions, ranging from whether the lyrics were written before or after the charged offense to whether the lyrics are internally consistent and coherent.  The second prong involves allowing defendants to offer expert witness testimony on the composition of and societal response to rap music lyrics, which Dennis thinks is consistent with Federal Rule of Evidence 702 and state counterparts.

I highly recommend the article for both its readability and the nuanced manner in which it comprehensively addresses an interesting issue which judges to this point have failed to give due consideration.  I asked Professor Dennis a couple of questions in response to the article, and she graciously provided the following responses:

What led you to write the article?

Broadly speaking, I am curious about the ways in which hip hop culture – including music, fashion, language, and persona – impact the criminal justice process.  Why hip hop culture?  Primarily because hip hop artists frequently reflect their experiences and perceptions of the criminal justice system in their music.  Many hip hop artists – whether prominent or aspiring – come from over-policed communities ravaged by crime, violence, and mass incarceration.  As well, a fair number of artists have experienced the criminal justice system themselves or through family, friends, and neighbors.  Thus, I believe hip hop provides a contemporary cultural text allowing for examination of the authority, efficacy, and equality of the criminal justice process by those communities significantly affected by the criminal justice process.

Having been a trial attorney in an earlier life, I particularly focused my attention on the impact of hip hop culture on the prosecution of criminal cases.  When I began researching, I hypothesized that I would find that prosecutors were using a defendant’s consumption or appreciation of rap music lyrics as criminal evidence.  Such use would be akin to cases admitting evidence that a defendant watched the popular movie Natural Born Killers or listened to heavy metal music before engaging in violent crime, or that a defendant consumed child pornography before engaging in child sex crimes. 

My research did reveal cases in which evidence of consumption of rap lyrics was used.  What I also found unexpectedly, however, were cases in which defendant-authored rap music lyrics were used.  As I indicate in the article, I did not find this use with other musical genres.  Additionally, I did not unearth cases utilizing other defendant created art forms.  The most closely related scenarios involved political speech or diary entries authored by defendants, and even those cases were rare.

By now, I felt like I was on to something.

Meanwhile, two rather serendipitous events occurred.  First, when talking with a colleague, I learned of the then on-going Kentucky capital prosecution of Taquan Neblett in which the Commonwealth had sought to admit the defendant’s rap lyric writings.  Second, I came across the federal capital prosecution in New York of Ronnell Wilson in which the prosecution also admitted defendant’s rap lyric writings.  I talk about both prosecutions in the article. 

Oddly enough, my research was foreshadowed years earlier.  In the early 2000s, while working in the Maryland Federal Public Defender Office, I first became aware of this litigation tactic.  Another attorney in the Office was representing a client charged with capital crimes.  In discovery, the prosecution produced a CD that included rap songs that the client had written and produced.  The CD could readily be labeled as gangsta’ rap.  My expectation was that the government would use the evidence in the sentencing phase, if the case got that far.  At the time, the strategy of using this type of evidence seemed isolated and legally tenuous.

At this point in my research, it was clear to me that the strategy was not isolated and was often successful.  I was particularly concerned about this issue because it is linked to another area of research interest. That is, the way in which law enforcement officers are routinely permitted to opine in suppression hearings and trials about such topics as drug culture and terminology, life in high-crime communities, and gang culture.  As with those topics, law enforcement officers often testify about what rap music lyrics mean and how they evidence criminal acts.  Shouldn’t such testimony be closely regulated and, if admitted, how best can defendants rebut such evidence?

What are your plans for future scholarship?

In footnotes 3 and 11 of the article, I do raise a number of issues I think worthy of future exploration.  As well, as I stated, I am interested in the issue of law enforcement “expert” testimony.   At present I am researching the law enforcement and prosecution practice of using children as criminal informants (i.e., “snitches”).  I expect to come back to the issue of hip hop culture and the criminal justice process, although I am not decided on the particular issue.

-CM

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