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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That sort of spin influenced the trial of Joseph Blacknell III, who was accused in 2012 of the 2009 killing of a rival gang member in Richmond. The UC Berkeley School of Journalism news website Richmond Confidential reported that Contra Costa County Deputy District Attorney Derek Butts cited lyrics that Blacknell jotted down while in custody, which "he said indicated that Blacknell was a violent enforcer within his gang."

Nielson and Kubrin's studies show that rap is nowadays penalized in court more aggressively than ever, which initially appears to be at odds with its contemporary pop culture hegemony. Intuitively, rap's high profile — not to mention the new superstar paradigm exemplified by Kanye West and Jay Z — would suggest wider acceptance and understanding, but in court, the opposite holds starkly true.

As Nielson put it, "Prosecutors started to realize it's effective, so it became almost a formal strategy." In Rap on Trial, Nielson and Kubrin cite a 2004 training manual produced by the National District Attorneys Association that codified the use of lyrics for going after defendants: "Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant's true personality."

As much as the judiciary entertains prosecutors' aggressive use of rap evidence, activists and legal professionals are also looking to higher courts for rulings that limit and condemn the tactic. Nielson hopes that prominent decisions will reinforce what's actually an old legal standard: Distinguishing between probative, relevant evidence and evidence that's prejudicial, or liable to undermine a defendant's right to fair trial by appealing to jurors' emotions with tangential details. That's supposed to occur in every criminal proceeding, but judges regularly capitulate to prosecutors who wish to mislead jurors with prejudicial rap evidence. Nielson hopes for prominent rulings to compel lower courts to abide by extant standards of due process.

That's what eventually happened in the case of Jamie Thomas, an Oakland resident who fatally shot his neighbor, Sam Navarro, in 2007. The shooting immediately followed an altercation in which Navarro's friend, Ignacio Ortiz, assaulted Thomas. Initially, Ortiz lied to the police about what precipitated the shooting, only to correct himself on the stand. After the shooting, Oakland police recovered handwritten lyrics — a mostly unintelligible verse that included references to gunplay — from Thomas' apartment.

One charge filed against Thomas was felony gun possession. Prosecutors argued for the lyrics' admission as a written confession to the crime, even though the defendant didn't dispute possessing or firing the gun, only the circumstances of his doing so. The prosecutor argued that not only were the vague lyrics an admission of gun ownership, but that they supported a charge of murder over manslaughter. In closing arguments, the prosecutor stated, "You have a man here who carries around a loaded SKS assault rifle in his station wagon, who glorifies, sort of this mentality or bravado — you can look at some of what he writes about."

Thomas' murder conviction was appealed on the grounds that the jury wasn't properly instructed about manslaughter committed in the heat of passion and that jurors were subjected to prejudicial lyrical evidence, among other procedural issues. The initial appeal to the Alameda County Superior Count faltered; in a dissenting opinion, however, Judge Stuart Pollak took issue with the use of rap lyrics, which he noted bore no resemblance to the alleged events.

"The lyrics would tend to evoke an emotional bias against the defendant with little or no relevance on material issues," he wrote. "The trial court abused its discretion in admitting the lyrics, and... it is reasonably probable that defendant would have obtained a more favorable result absent the errors. I would reverse defendant murder conviction."

A higher court eventually sided with Pollak, and Thomas' conviction was reduced to manslaughter.

To Nielson, the most heartening legal precedent yet was set last year by the New Jersey Supreme Court in the case of Vonte Skinner. Prosecutors alleged that Skinner was guilty of an attempted murder in 2005. The victim initially identified Skinner as the shooter, but recanted on the stand. The prosecutor read thirteen pages of Skinner's rap lyrics to jurors, despite the fact that they were mostly written more than a year before the alleged crime and bore no similarity to it. The ACLU got involved, Nielson and Kubrin wrote about the case, and last year, the state Supreme Court ruled unanimously to overturn Skinner's murder conviction, stating that such evidence shouldn't be allowed in trial without a "direct connection" to the alleged crimes.

In December, the US Supreme Court heard oral arguments in the case of Elonis v. United States. Central to the case is the issue of what constitutes a "true threat," an amorphous legal standard that excludes certain statements from First Amendment protections. But, as Nielson is keenly aware, the case will also force the justices to grapple with speech in the context of rap, because the writing in question was posted to social media as verse. The defendant, Anthony Elonis, is an aspiring white emcee who goes by Tone Dougie.

Nielson, who wrote about the case in a USA Today article co-bylined by Michael Render, better known as the rapper Killer Mike, told me, "What I'm hoping will happen is that [the Supreme Court] will at least nod to the significance of the rap lyric form in that case." It seems likely: During oral arguments, conservative Chief Justice John Roberts took the unusual step of quoting Eminem lyrics, prodding the government lawyer, Michael R. Dreeben, about whether they could be prosecuted.

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