Lerner on Rap on Trial

Jack I. Lerner (University of California, Irvine School of Law) has posted Rap on Trial: A Brief History (27 Chap. L. Rev. 405 (2023)) on SSRN. Here is the abstract:

 

In recent years, the prosecutorial tactic, often called “Rap on Trial”—in which rap lyrics and videos associated with a defendant are used as evidence of criminal activity—has exploded into national prominence. The widely-followed prosecution of Young Thug and his labelmates, along with other high-profile rappers, has generated intense interest in the issue, but even before the Young Thug indictment, legislators in California, Washington D.C., and other states had introduced legislation to curb the practice. The Rap on Trial tactic has been around since at least 1991; hundreds of courts have issued judicial opinions permitting the use of rap evidence, despite a steady stream of peer-reviewed empirical studies demonstrating that the tactic introduces a substantial risk of unfair prejudice. In this Article, the author reflects on his work on this issue, identifies important moments in the history of the tactic, explores why it has become more well-known in recent years, and what this new prominence suggests about the state of the Rap on Trial tactic. The author concludes by offering suggestions for policymakers and courts.