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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Jallepalli countered that critics underestimate the judgment of jurors. "The myth of this issue is that jurors are provincial and unsophisticated," he said.

His argument, however, was undermined by an example that he cited to support it, because the example involved a juror who refuted the supposed expertise of Jallepalli's witness. Jallepalli said that in one recent case, another gang detective "referenced certain passages that were commenting on violence, commenting on the use of firearms — this was a murder with gang enhancements—and one of the jurors wrote a note to the effect of, 'Some of these things are quotes from rap artists, not things he originally wrote.'" Neither Jallepalli nor his expert witness was aware that the passage included quotations.

Erik Nielson, the University of Richmond professor who is an expert on the use of rap evidence in criminal proceedings, recently co-published, with Charis Kubrin, a professor at UC Irvine, Rap on Trial, a scholarly paper that's served as the basis for their opinion pieces in The New York Times, the Los Angeles Times, the Washington Post, and USA Today, among other outlets.

"Our work has become all-consuming," Nielson said in an interview. "The deeper we dig, the more horrified we are by the extent of it.

"We see horrible experts," he added, referring to police detectives who claim to understand rap, "people who show fundamental misunderstandings of the genre."

Examples of rap being used as evidence are abundant in Bay Area criminal trials dating back to the 1990s. There are no records kept of how frequently rap is admitted into evidence, and it's difficult to track due to the various stages and types of trial proceedings, records of which often remain sealed. But Nielson and Kubrin have amassed documentation of hundreds of examples as part of a broader campaign aimed at bringing attention to — and curbing — the practice.

In Rap on Trial, the academics map rap, which they distinguish as one component of hip-hop culture, from its origins through today, illustrating its empowering role for historically underserved communities, along with the attendant establishment efforts to stamp it out, namely through penalizing expression in criminal proceedings.

Early in his research, Nielson observed that a disproportionate number of the criminal trials involving rap evidence came from California, which he attributed to the state's aggressive gang statutes. "In the 1990s," he said, "you had law enforcement disrupting concerts, so much that you saw labels self-censoring from within, holding artists back or requiring artists to change their lyrics."

Indeed, live rap shows have been particularly embattled in Oakland, where the genre was formally banned from clubs for a year in 1989. Today, the Oakland Police Department regularly inspects fliers for hip-hop shows, stepping in to compel cancellations if they deem a performer problem-prone. And earlier this month, following a fatal late-night shooting in downtown, Damon Gallagher, the then-co-owner of a nearby pizzeria, appeared to speak for those who harbor prejudice against the genre when he publicly blamed the hip-hop-oriented club Vinyl for inviting violence, despite his ignorance of the tragedy's details.

As Nielson and Kubrin write in Rap on Trial and elsewhere, hip-hop culture was always highly political, a means for the dispossessed to reclaim urban space, which still colors the neighborhood-centric lyrics of artists such as Laz Tha Boy. Rap lyricism became especially characterized by politics in the late 1980s and early 1990s. Afro-futurism themes appeared, with groups often stylizing themselves as didactic disciples of a radical Black tradition. In Oakland, Boots Riley and The Coup espoused a Marxist critique of class and race.

Rap on Trial emphasizes that, despite the public's assumptions about violence and rap cohabitating, hip-hop culture has more often served as an alternative to destructive avenues, a means of transmuting aggression into ritualized, combative expression. Nevertheless, it was in the early-Nineties, when explicitly political rap began giving way to gangsta themes, that prosecutors' efforts to criminalize hip-hop tropes began in earnest.

In 1994, Anerae Brown, who raps as X-Raided, went on trial for participating in a Sacramento home-invasion robbery that left a woman dead. The prosecutor, Pete Harned, played jurors selections of X-Raided's music, arguing in court that they amounted to premeditation. Brown was sentenced to 31-years-to-life. In prison, he met Shawn Thomas, better known as the storied Sacramento rapper C-Bo, architect behind The Jacka's Pittsburg outfit Mob Figaz. When Thomas was released on parole, he agreed not to record music that promoted gang lifestyles or criticized cops. But then he issued "Deadly Game" in 1998, which discussed killing cops to avoid a third-felony, referencing the controversial three-strikes law. The song, which was actually written by Brown in prison, earned Thomas an arrest for parole violation and charges that were only dropped after protest and ACLU intervention.

In 1999, Raymond Lamont Scott went on trial for shooting an Oakland police officer. The judge in the case allowed the prosecutor to admit lyrics written by the defendant more than a year before the alleged crime. The San Francisco Chronicle quoted Alameda County prosecutor William Tingle saying, "The poem will show Mr. Scott's attitude about killing — the glorification of it, the joy it."

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