Rap's Poetic License: Revoked 

East Bay prosecutors regularly use rap lyrics and music videos as evidence in criminal proceedings, a tactic that undermines a defendant's right to a fair trial and continues the legacy of stifling Black expression.

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And, counterintuitively, Nielson observed that the increased use of rap as evidence in criminal trials is occurring at a time when rap permeates pop culture. "People sometimes feel surrounded in a way that's threatening, which they didn't when [rap] was on the margins," he said. "The attack on rap is part of a larger cultural response to race relations in the United States. Rap becomes a scapegoat, a proxy for people's deeper anxieties about young men of color."


Wary of dealing with the more irrelevant and prejudicial evidence in a trial setting with a potentially conservative Contra Costa County jury, Deandre Mitchell pleaded to a lesser charge: assault with a firearm. Mitchell, who maintains his innocence to this day, said "that was the hardest decision of my life." The father of two served more than two years in prison.

"The expert in that case," Hamasaki recalled, "was qualified to give expert testimony on gangs, gang members, crimes, what kind of crimes benefit gangs — but he's not an expert on music."

Indeed, the testimony Jallepalli elicited from Detective Lopez about Mitchell's music was fraught with ahistorical statements masquerading as objective truth. "What Deep C and other rap groups or other maybe gangs would do is they'll rap about their experiences and what they have actually done," Lopez testified. "To not get caught, they keep certain parts vague."

But in the more than 150 pages of "expert testimony" in Mitchell's grand jury proceedings, there is no acknowledgment of the figurative language or poetic devices that Laz Tha Boy employs — which include neologism, hyperbole, parody, portmanteau, and allusion — presumably because the prosecution wished to avoid signaling to jurors that Mitchell deals in creative invention. Likewise, the inadequacy of semantically analyzing a lyrical form in which content and meaning hinges upon delivery and vocal style wasn't brought up, nor were Mitchell's array of past personas. Put simply, Jallepalli and Lopez ignored the distinction between author and narrator that's extended to other genres and forms of expression.

Lopez's conflation of rappers with gangs and verses with confession is indicative of the criminal justice system's lowly regard for rap, which is predominantly produced by young men of color. A number of high-profile case have brought awareness to the trend, notably the recent case of the rapper Bobby Shmurda in New York, but broadly, prosecutors nationwide regularly use rap as evidence against amateur artists who lack the name recognition and financial wherewithal needed to muster effective defenses.

"We need more studies, more scholarship in that area," Hamasaki said of rap music and videos. "In court, there's an analysis of whether evidence is more prejudicial than probative. Considering what studies there are about the effect of hip-hop on middle-class, predominantly white suburban jurors — it's highly prejudicial."

Some courts have begun to tighten admissibility standards for rap lyrics. The move validates the view of many academics and legal professionals who consider prosecutors' use of rap evidence as a cynical ploy to exploit latent bias against the urban young men of color who take to the form. The worry is that rap will endure a chilling effect, wherein lyricists are compelled to self-censor given the genre's particular burden.

In the East Bay, the recent experiences of Mitchell and other rappers are part of law enforcement tradition: The lyrics of Mac Dre also have been taken as fact by law enforcement. Dre's 1992 arrest for conspiracy to commit robbery was widely viewed as retaliation for the song "Punk Police," in which he raps about the Vallejo Police Department: You labeled us a ruthless g-a-n-g/But the biggest gangsters are the V-P-D.

"Mac Dre was talking about police brutality and harassment in that song and 25 years later it's still a concern," said Eric Arnold, a journalist and former Express staffer who covered Dre and his Romper Room peers at the time. "There's definitely an element of sensationalism, on the prosecutorial side, when you have a rapper and you're using the fact that they're entertainers with followings." Mitchell is confident that Laz Tha Boy was similarly targeted for his standing in the community. "I'm one of the only people in Richmond that brings people together," he said. "That's why they wanted me down, because of my voice."


Satish Jallepalli, a fifteen-year prosecutor with the Contra Costa County District Attorney's Office who has been working in the DA's gang unit for the last three years, said that social media, including YouTube videos, figures into the investigation or evidence in most of his cases. He said he typically cites rap lyrics and music videos to link defendants with gangs in order to add extra prison time to felony convictions, a practice referred to as "gang enhancement."

The standard for securing gang enhancements in California is very low; the penal code defines "criminal street gang" vaguely as any group of three or more individuals with a common name or sign who engage in felony activities. A defendant need not be a "known gang member" (an often misleading phrase in its own right, since many described by the authorities as such only accept the lifelong tag as part of a plea bargain) for prosecutors to pursue gang enhancements. Committing a felony for the benefit of, at the direction of, or in cooperation with gang members suffices.

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