Im just playin you know that.

F--k around, these days, these dirty D.A.sll use your raps.
i

In May 2014, the Supreme Court of the State of New Jersey will
weigh in as to whether the admission of a defendants rap lyris in a
riminal proseution onstitutes re!ersi"le error# $t the enter of the
de"ate is the %uestion of whether !iolently "oastful rap lyris, in the
onte&t of a riminal in!estigation, represent artisti e&pression or
riminal e!idene# 'he defendant in this matter, (onte S)inner, was
on!ited in 200* of attempted murder and other harges after
proseutors introdued 1+ pages of his rap lyris as e!idene#
ii

S)inners lyris did not referene the !itim or any details or the rime
and although he wrote the lyris o!er a period of se!eral years ,as
many as three to four years prior to the rime he was "eing tried for-,
the .ury was not told when they were written#
$t trial, the State referened the lyris in its opening as well as in
its ase/in/hief to esta"lish S)inners moti!e and intent#
iii
$n NJ
appeals ourt o!erturned the !erdit, noting that 01t2his was not a ase
in whih irumstantial e!idene of defendants writings were ritial
to show his moti!e#3
i!
'he dissenting .udge, howe!er, found that the
trial .udge appropriately applied New Jersey4s four/part test for
admission of e&trinsi 5"ad/at5 e!idene and .usti6ed his stane
stating, 0defendants songs narrated e!ents similar to the ondut
whih resulted in the harged o7enses#3
!
8hile S)inners ase may "e the most reent it is not uni%ue#
9ap lyris ha!e "een used in the proseution of rimes for years# Just
last year, 0the $merian Ci!il :i"erties ;nion of New Jersey found that
in 1< ases in whih !arious ourts onsidered the admissi"ility of rap
as e!idene, the lyris were allowed nearly <0 perent of the time#3
!i

'his is partiularly trou"ling "eause of the potential onstitutional
!iolations that our in these ases#
In this paper, I will e&amine how the use of rap lyris in riminal
proseutions ontra!enes the protetions guaranteed "y the =irst
$mendment# =irst I disuss the uni%ue nature of rap musi as faniful
and "oastful yet powerful soial and politial ommentary worthy of
=irst $mendment protetion# Ne&t, I e&amine reent ases in whih rap
lyris ha!e "een admitted as e!idene# 'hen, I onsider urrent
e!identiary approahes to the admission of rap lyris and suggest a
onstitutional analysis as well# Ne&t, I disuss how rap musi is
partiularly !ulnera"le to a"use, deser!ing of heightened srutiny#
=inally, I o7er some proposed methods of analy>ing rap lyris for
admission at trial while mitigating potential =irst $mendment rights
!iolations#
The Nature of Hip-Hop (Rap) Music
It would "e unwieldy and "eyond the sope of this paper to pro!ide
e!en a modest history of the e!olution of rap musi, the hy"rid fruit of
Jamaian 0toasting,3 satting, and the sampling of pree&isting sounds,
songs and !oali>ations, whih has in .ust +0 or so years, grown and
de!eloped e&ponentially into ma.or "usiness# 'he in?uene of hip/hop
2
ulture an "e heard in musi, language, and fashion from ;nion
S%uare to haute outure runways worldwide# 'herefore, this "rief
introdution will fous on rap as an art form and !ehile for soial
ritiism#
Most historians trae the origins of rap musi to the @ron&, New
Aor) in the mid 1BC0s#
!ii
'here, fores on!erged to de!elop a sound
and ulture that was uni%uely of and for "la) and :atino inner/ity
youth that inha"ited streets ?ush with gang !iolene, drugs, and little
to no polie protetion#
!iii
9apping D rhyming o!er "eats on reord D
would om"ine with graEti and "rea) daning to form hip hop ulture,
"ut the musi would spread far and wide on aount of assette tapes
and messages that resonated with ur"an youth aross the ountry#
i&

In hip/hops early days, the musi was multifaeted# 'here were
party songs, omedi songs, soially onsious songs, "la) nationalist
songs, "la) militant songs, songs a"out girls, songs a"out "eing the
"est emee, and songs that reported on the ur"an landsape# In the
late 1B<0s to early FB0s, howe!er, we saw the emergene of 0gangsta3
rap, an 0identity perfeted on the 8est Coast and drawn from the real/
life gang "attles o!er eonomi ontrol of drug mar)ets in ommunities
from :os $ngeles to Seattle#3
&
=or many, their 6rst introdution to rap
musi was through the gangsta su"genre and ontinues to "e how rap
is de6ned#
+
$s hip/hop "eame more pro6ta"le, reord ompany e&euti!es
saw an opportunity to mar)et the musi and ulture in the same way
they had "een mar)eting @la&ploitation mo!ies and other produts to
"la) and non/"la) audienes ali)e D "y appealing to stereotypes
a"out ur"an ulture# Common themes suh as the gangster, thug,
Ma6a Gon, pimp, and outlaw appeared more fre%uently in ommerial
rap musi#
&i
$s hip hops in?uene spread to fashion, tele!ision, and
mar)eting, the pressure to sell a ommerially !ia"le, entertaining
produt appealing to the widest possi"le onsumer audiene too)
preedene o!er truth and atual authentiity#
It has "eome ommonplae for reord ompanies to enourage
new artists to promote a 0gangsta3 and 0thug3 image "oth in and
outside
&ii
the studio in order to "oost reord sales# (anilla Ie, a white
rapper who "rie?y en.oyed ommerial suess in the early FB0s ,his
al"um 'o the H&treme, sold +#+ million opies and his single 5Ie Ie
@a"y5 "eame the 6rst rap song e!er to hit No# 1 on @ill"oard4s pop
hart
&iii
-, is remem"ered today mostly as a punhline mainly "eause
he fa"riated details a"out his life story in order to "olster his street
red and hip/hop "ona 6des# $ Ieople Maga>ine artile from 1BB0 tells
the taleJ
Now the Ieman is under atta) for phonying up hun)s of
his "io# 1$2ording to Ie, who has said that he was a poor
street )id, won three pro motoross titles, went to the
same Miami high shool as 2 :i!e Crew4s :uther Camp"ell
and nearly died after that )nife 6ght in rit>y Coral Ka"les,
=la# Lthers who )now him, howe!er, tell of a well/o7 )id
4
named 9o""y (an 8in)le who spent many of his teen
years in 'e&as, won motoross trophies only on the
amateur iruit and dro!e a white I9LC Camaro M2< in high
shool# 8ill the real (anilla Ie please hill outN
&i!

Sine then, hip hop fans ha!e sought to 0weed out3 the phony
thugs from the real gangstas# Stories that emerge arrying tales of
rappers su"ur"an, middle/lass up"ringing "eome e!idene of a la)
of authentiity, regardless of the fat that from early on, hip hop had
"een a ross/lass artform# 9eent e&amples inlude popular rappers
9i) 9oss and Gra)e, who ha!e "oth had to deal with reputational
atta)s "ased on their "a)grounds# 9i) 9oss ,nee 8illiam :# 9o"erts,
III- pratially lifted his entire "a)/story from a real/life drug )ingpin
named 0=reeway3 9i) 9oss ,who sued 9o"erts in 2010 for
appropriation of his name and li)eness
&!
-# 9i) 9oss the rapper rafted
his image and lyris around a glittery Miami gangster lifestyle when in
reality, he had one "een a orretions oEer D almost the antithesis
of a 0real3 gangster#
8hen 9oss true "a)ground was diso!ered, fans ridiuled the
rapper# Comple& Maga>ine, listed the outing of 9oss as one of 0'he 2*
Cra>iest Gays on 9ap 'witter,3
&!i
writing, 09i) 9oss is li)e###'he Mother
Koose of 9ap# Oe4s on top of the game "y wea!ing fantastial tales
that ma)e thugs ry# 1P2 @ut who really tells the truth in rapN More
importantly, who aresN It4s safe to say that we now )now not all
rappers were drug dealers#3
&!ii
*
Gra)e ,nee $u"rey Kraham-, a "i/raial, Jewish, rapper from
'oronto who starred on the popular Canadian teen drama GeKrassi, the
Ne&t Keneration is a hugely popular rapper who, despite his suess, is
often ridiuled for his middle/lass hildhood# Gra)e intentionally
ulti!ates a 0softer3, more sensiti!e image than 9oss "y appealing to
female fans and rapping openly a"out relationship issues, he still feels
the need to pro!e how 0hard3 he is when he raps on 0Oeadlines3 a"out
how he and his rew will )ill someone, 0Aou )now that they ain4t e!en
got it li)e thatQ Aou gonna hype me up and ma)e me ath a "ody li)e
that#3
&!iii
Many lament what has "een !iewed as the 0selling out3 of hip/
hop to mainstream and ommerial pressures D a !alid riti%ue that is
the su".et of a num"er of papers and "oo)s D "ut for the purposes of
this paper suEe to say that this pressure to 0)eep it real3 is,
ironially, often manufatured yet ontri"utes hea!ily to the style and
form of muh of rap lyris today# Ne!ertheless, the premium plaed on
"eing 0real3 in hip hop 0does not disallow 6tion, imaginati!e
onstrutions, or hip hops traditional .ourney into myth#3
&i&
9apper Chu) G of the group Iu"li Hnemy famously remar)ed,
0rap is CNN for "la) people#3
&&
In "etween the party "eats and reord
srathing, rap artists ha!e "een reporting on what was seen and
e&periened, telling stories a"out life that wasnt "eing re?eted in
mainstream musi or media from the point of !iew of minority youths#
R
H!en in the most !iolent and se&ist lyris, one an often distinguish an
o!erarhing theme of soialQpolitial ommentary on the topis of
po!erty, !iolene, and harassment# $ording to professor 'riia 9ose,
9ap musi "rings together a tangle of some of the most
omple& soial, ultural, and politial issues in
ontemporary $merian soiety# 9aps ontraditory
artiulations are not sighs of a"sent intelletual larityS
they are a ommon feature of ommunity and popular
ultural dialogues that always o7er more than one ultural,
soial, or politial !iewpoint# 'hese unusually a"undant
poly!oal on!ersations seem irrational when they are
se!ered from the soial onte&ts where e!eryday struggles
o!er resoures, pleasure, and meanings ta)e plae#
&&i

Still, many people 6nd rap musi distasteful in ontent and form,
failing to reogni>e either the musiality or message inherent in the
genre# In a 2012 inter!iew with Jay/M, one of hip/hops most suessful
and !isi"le artists, the author Madie Smith opines, 0there ha!e always
"een these people for whom rap language is more sandalous than the
ur"an depri!ation rap desri"es# Ln F8ho Kon Stop Me, Jay/M as)s
that we Fplease pardon all the urses "eause Fwhen youre growing
up worthless, well, things ome out that way#3
&&ii
'he late ultural riti
9oger H"ert one made a similar o"ser!ation a"out rap musiJ
9ap has a "ad reputation in white irles, where many
people "elie!e it onsists of o"sene and !iolent anti/white
and anti/female guttural# Some of it does# Most does not#
Most white listeners don4t areS they hear "la) !oies in a
litany of disontent, and tune out# Aet rap plays the same
role today as @o" Gylan did in 1BR0, gi!ing !oie to the
hopes and angers of a generation, and a lot of rap is
powerful writing#
&&iii
C
'hus although hip/hopQrap is argua"ly one of the least respeted art
forms, it has always "een a soure of soial riti%ue# 0Oip Oop riti%ues
$meria4s failure to uphold onstitutional ideals of .ustie and e%uality
and her reprodution of the long history of @la) su7ering inside and
outside $merian law#3
&&i!

'o the uninitiated, rap musi may sound li)e a "unh of tal)ing o!er
drums "ut .ust li)e other art forms, rap has its own artisti or poeti
on!entions, one of whih is aggressi!e e&aggeration whih dates "a)
to the early days of the genre when rappers or 0emees3 "attled one
another with words 01l2aden with punning wittiisms and hyper"oli
"raggadoio 1to tell2 of how one rappers style, ontent, or deli!ery on
the mirophone was superior to his ad!ersarys#3
&&!
9appers ha!e sine
"een )nown to spin a good yarn or tall tale, the intent of whih is
desri"ed "y law professor $ndrea GennisJ
'he intention of the narrator of the Aarn is to tell
outrageous stories that streth and shatter redi"ility,
o!er"lown aounts a"out haraters e&pressed in
superlati!esP 8e listen inredulously, not "elie!ing a
single word, our delight "ased on s)eptiism and
wondering whether the storyteller an top the last,
preposterous episode hes spun D "y de6nition the
traditional Aarn is always episodi in struture, one
outrageous lie after another#
&&!i
8riting a"out her inter!iew with Jay/M, Smith harateri>es the
nature of rap, 01"2ut as)ing why rappers always tal) a"out their stu7 is
li)e as)ing why Milton is fore!er listing the attri"utes of hea!enly
armies# @oasting is a formal ondition of the epi form#3
&&!ii
Smith D an
<
award/winning no!elist who an spea) authoritati!ely on literature and
art D goes on to harateri>e Jay/Ms 0=riend or =oe3, a song ostensi"ly
a"out 0a onfrontation "etween two hustlers, is rap in its masterful,
full/"lown, narrati!e form# Not .ust a monologue, "ut a story, omplete
with dialogue, sene setting, harateri>ation#3
&&!iii

9ap musis mi&ture of soialQpolitial ommentary, traditional
yarn/spinning, and ommeriali>ed 6tionali>ation, om"ine to ma)e
the art form uni%ue and omple& in a way that not only a7ords it
protetion under the =irst $mendment "ut ma)es it diEult to read
literally without onte&t or )nowledge a priori D a partiular onern for
use of lyris as e!idene#
Artistic & Political Expression Under the First Aendent
'he =irst $mendment of the ;nited States Constitution plainly
states that 0Congress shall ma)e no law # # # a"ridging the freedom of
speeh#3
&&i&
'he lause applies to all 0e&pressi!e ondut3 suh as
art,
&&&
where ideas are e&pressed in !arious media that is, for the most
part, proteted# Indeed, to some art is at the !ery ore of the =irst
$mendment# Consider the words of Ste!en G# Smith, 08hether or not it
is rational or e&pliitly politial, musi, painting, and poetry is typially
as self/onsiously a manifestation of entral "eliefs and attitudes ,in
all their su".eti!e rihness- as almost any )ind of e&pression an
"e#3
&&&i

B
Iolitial speeh, howe!er, is entitled to speial =irst $mendment
protetion, re%uiring 0heightened srutiny3 of go!ernmental
restritions# In Snyder . !helps, the Court reinfored the idea that
speeh that ser!es as soialQpolitial ommentary sits on the 0highest
rung3 of the =irst $mendment#
&&&ii
0Speeh onerning pu"li a7airs is
more than self e&pression,3 writes Justie 9o"erts in the ma.ority
opinion %uoting "arrison . #ouisiana, 0it is the essene of self/
go!ernment#3
&&&iii
'o those patient enough to listen, rap musi an
indeed %ualify as speeh onerning pu"li a7airs sine its portrayals
an "e 0fairly onsidered as relating to any matter of politial, soial, or
other onern to the ommunity5 as stated in $onni%k . &yers
'''i
or
when it is 0a su".et of general interest and of !alue and onern to
the pu"li#5
&&&!

8hile the Court has delined to e&tend protetions to materials
deemed o"sene and therefore farther away from the ore of =irst
$mendment protetion, the fat that an e&pression is deemed in poor
taste, ontro!ersial, or !ulgar "y some is 0irrele!ant to the %uestion
whether it deals with a matter of pu"li onern#5
&&&!i
So while some rap
songs an "e more readily identi6ed as politial speeh than others
&&&!ii
,
it would appear that rap lyris do ount as speeh of the highest order
and e!en the most apolitial rap songs are artisti e&pressions of ideas
that sit safely within the sope of proteted speeh#
Recent !ases
10
8hile (onte S)inners ase "efore the New Jersey Supreme Court may
"e the most reent, it ertainly is not no!el# 9ap lyris ha!e "een used
as e!idene in riminal ases for some time# In 200R, 9onnell 8ilson
entered the ran)s of the few prisoners on New Aor)s death row after a
ourt found him guilty of murdering two New Aor) City deteti!es#
&&&!iii

Iart of the G$s ase against 8ilson inluded rap lyris sri""led on
rumpled paper found in 8ilsons possession when he was arrested in
200+#
&&&i&

Iroseutors asserted that the lyris pro!ided 0a glimpse into
8ilson4s state of mind3 around the time of the murders, and aording
to the .udge in the ase, 0the lyris desri"e1d2 entral elements of the
rime and 1made2 referene in the 6rst person to Mr# 8ilsons street
name, 9ated 9#3
&l
Iroseutors also admitted e!idene of lyris written
"y a purported mem"er of 8ilsons gang that Finluded performane
instrutions suh as FChorus 2&,3
&li
as e!idene of a riminal
organi>ation# None of the lyris found in 8ilsons possession
referened the murders of the polie oEers or any spei6 details
surrounding that inident "ut were ne!ertheless allowed as part of the
proseutions ase against him#
$n appellate ourt re!iewing the on!ition of 1* year old Garren
Irather for the murder of a young man in 9ihmond, California had
this to say a"out the inlusion of rap lyris in ase against IratherJ
8e an spend all afternoon on what rap musi lyris mean,
an e&pression or someones true feelings ome out# I an
11
tell you that the rap lyris that I re!iewed, all "ut one line
of whih the .ury did not hear "eause I did not thin) it was
appropriate, were e&tremely !iolent# Im not on!ined that
this is merely the musings of a young person# 'heres more
on the le!el of !enting#
&lii
'hat one line was presented to the .ury on a plaard "randished "y the
proseutor that read, 05If you ain4t from our part of town, you4re a
1e&pleti!e2 target#5
&liii
Sine the !itim wasnt from Irathers side of
town, the proseution sought to present the lyris as e!idene of the
defendants feeling toward outsiders#
'hen theres the ase of Geandre Mithell who was indited for his
alleged role in two 2012 shootings "ased in large part on some lyris
he wrote as 0:a> 'ha @oy, his musial persona#
&li!
$ording to the
defense, not a single arrest, on!ition, or physial e!idene was
introdued to onnet Mithell to the shootings#
&l!
Oowe!er, on?iting
eyewitness testimony along with 0Mithell4s !iolent gangsta rap !ideos
and lyris, were presented to the grand .ury as e!idene of his riminal
"eha!ior#3
&l!i
'he mere e&istene alone of Mithells !iolent lyris were
enough to ha!e him indited, 01a2lthough some of the !ideos were
made years earlier 1P2 and none inluded spei6 details a"out the
shootings he was harged with#3
&l!ii
Lf ourse not e!ery instane of rap lyris introdued in riminal
proeedings is un.usti6ed# In 200*, Nathaniel 8oods was on!ited of
apital murder for his in!ol!ement in the death of three @irmingham,
$la"ama polie oEers#
&l!iii
Iart of the states ase against 8oods
12
inluded lyris found in his ell after he had "een arrested in
onnetion with the murders# 'he lyris, an adaptation of a rap song "y
rapper and produer Gr# Gre, referened 8oods o/defendant, )illing
0pigs3, and ha!ing no remorse#
&li&
'he ourt in that ase onsidered the
lyris to "e 0post/rime ondut3 re!ealing the defendants state of
mind or 0onsiousness of guilt#3
Similarly, in 201+ the Supreme Court of Ne!ada aErmed the
murder and ro""ery on!ition of Geyundrea 0Thali3 Oolmes after he
argued hed reei!ed an unfair trial when e!idene of his rap lyris
were admitted at trial#
l
8hile in .ail awaiting e&tradition, Oolmes
penned lyris desri"ing a senario mathing the fats and
irumstanes surrounding the rime D 0.a)ing3 people in a par)ing lot
for their ne)laeQhain while wearing a s)i mas)#
li
$ording to the
ourt, the lyris amounted to a statement that was rele!ant and
admissi"le#
lii
Se!eral Supreme Court deisions ha!e esta"lished that the =irst
$mendments freedom of speeh guarantee is not a"solute# =or
instane, speeh amounting to soliitation of rime or onspiray is
outside the sope of onstitutional protetion#
liii
(raden)ur* put speeh
direted toward initing imminent lawless ation, and whih is li)ely to
inite or produe suh ation, outside the sope of the =irst
$mendment#
li!
'he rule handed down in "i)oney . +mpire Stora*e $o.
D that the =irst $mendment does not protet 0speeh used as an
1+
integral part of ondut in !iolation of a !alid riminal statute,3
l!
is
illustrated "y the ase of $nta!io Johnson, who was sentened to two
years in .ail for 0statements3 he made in !iolation of a =lorida statute
that made it a rime to threaten a pu"li ser!ant
l!i
#
Iolie happened upon a song alled 0Till Me $ Cop3 that Johnson
reorded and posted to MySpae years prior to his arrest in whih he
threatened two polie oEers "y name#
l!ii
In the song, Johnson !er"ally
6res "a) at polie oEers D generally and spei6ally D for perei!ed
harassment he had faed "ut proseutors "elie!ed he had rossed the
line from merely )eeping a 0musial .ournal3 to diret, redi"le threats
when he named the oEers#
l!iii
Similarly, two men, 9ashee @easley and Jamal Tno&, were
on!ited of intimidating witnesses, terroristi threats and onspiray
after posting a rap !ideo to Aou'u"e in whih they threatened two
Iitts"urgh, I#$# polie oEers "y name
li&
# 'he trial .udge dismissed any
=irst $mendment/"ased defenses, stating 0It is a"undantly lear to me
that the ondut of the defendants here is not proteted "y the =irst
$mendment "eause it far e&eeds what the =irst $mendment allows,3
the .udge said
l&
# 0'hey did, in fat, attempt to intimidate and
ommuniate a threat# 'he rap !ideo, "y its !ery nature, is a
ommuniation#3
l&i

Adissi"ilit# of Rap $#ric E%idence
14
;sually, ases in!ol!ing rap lyris ha!e "ased admissi"ility on
four main e!identiary groundsJ admissions "y party opponents,
rele!any, permissi"le harater e!idene, and not unfairly
pre.udiial#
l&ii
$ording to the =ederal 9ules of H!idenes ,0=9H3-
e&eption from hearsay,
l&iii
an admission "y party opponent or
0opposing partys statement3 need only "e a statement that 0is o7ered
against an opposing party and was made "y the party3 himself#
l&i!
'hus,
a defendants rap lyris may "e admitted into e!idene as an
admission "y party opponent 0as su"stanti!e e!idene of the matters
stated therein#3
l&!
$ny 6rst/year riminal law student an tell you that e!idene that
is irrele!ant is inadmissi"le,
l&!i
rele!ant meaning that whih has 0any
tendeny to ma)e the e&istene of any fat that is of onse%uene to
the determination of the ation more pro"a"le or less pro"a"le than it
would "e without the e!idene#3
l&!ii
Oowe!er when it omes to rap
lyris, rele!any may "e inferred "y the similarity "etween the lyris
and the details of the alleged rime li)e in the Oolmes ase disussed
a"o!e#
l&!iii
$lternati!ely, rap lyris may ha!e little or nothing to do with
the ase at "ar yet are deemed rele!ant to the defendants state of
mind# Simply ha!ing a 0tendeny3 to ma)e any fat more pro"a"ly is
enough for ourts to deem lyris as rele!ant#
l&i&
$ording to =9H 404,"-, while 01e2!idene of a rime, wrong, or
other at is not admissi"le to pro!e a persons harater in order to
1*
show that on a partiular oasion the person ated in aordane with
the harater,3
l&&
one an get in e!idene for other purposes suh as,
0pro!ing moti!e, opportunity, intent, preparation, plan, )nowledge,
identity, a"sene of mista)e, or la) of aident,3 in a riminal
proeeding#
l&&i
'his type of permissi"le harater e!idene e7ets rap
lyris when ourts apply the 0reasoning that authored lyris are
indiati!e of the defendants intent, )nowledge, or moti!e respeting
the rime harged#
l&&ii
=urthermore, ourts usually try to ure any
0improper inferenes3 on the part of the .ury "y issuing limiting
instrutions#
l&&iii
=inally, some ourts will rule that rap lyri e!idene is .ust not
0unfairly pre.udiial3 as de6ned in =9H 40+#
l&&i!
'he 9ule states that
e!en rele!ant e!idene may "e e&luded 0if its pro"ati!e !alue is
su"stantially outweighed "y 1P2unfair pre.udie,3 among other
things#
l&&!
'hough it wouldnt "e diEult to see how the ris) of pre.udie
would "e high gi!en the pu"lis general attitude toward rap musi and
the pereption that it is a mostly $frian/$merian underta)ing ,more
on this "elow-, ourts generally 6nd that the e!idene is not un,airly
pre.udiial and admit it with limiting instrutions to the .ury#
l&&!i
Oowe!er legal and 0"y the "oo)3 the a"o!e e!identiary "ases might
"e, a proper onsideration of the admissi"ility of rap lyris should
inlude a onstitutional analysis as well# In Dawson . Delaware, the
ourt ruled that the admission of defendants mem"ership in a raist,
1R
white supremaist prison gang was not pro"ati!e of any issue rele!ant
to his sentening, and therefore !iolated his =irst $mendment right to
free assoiation#
l&&!ii
'he =irst $mendment, aording to the ourt,
prohi"ited the use of e!idene that pro!ed nothing more than the
defendants possession of suh 0a"strat "eliefs#3
l&&!iii
Gawsons right to
assoiate with an $ryan group and hold partiular "eliefs had no real
pro"ati!e !alue in relation to the ase# 8ith rap lyris, whih are often
the reitation of ones fantasy, o"ser!ation, or most li)ely a
om"ination of the two, where there is no onnetion "etween the
lyris and the ase "eyond the fat that 0the .ury would 6nd these
"eliefs morally reprehensi"le,3
l&&i&
their admission should "e !iewed as
possi"le =irst $mendment !iolations# ;ltimately, as stated in Street .
-., a ourt annot 0sustain a on!ition that may ha!e rested on a
form of e&pression, howe!er distasteful, whih the Constitution
tolerates and protets#3
l&&&
:i)ewise, in /.S. . 0in*, the defendant appealed a on!ition for fraud,
onspiray and other harges on grounds that the ourt allowed the
.ury to draw ad!erse inferenes from e!idene a"out his ampaign
ontri"utions, whih ran afoul of =9H 40+
l&&&i
and !iolated his free
speeh right#
l&&&ii
$lthough there was no e!idene that any of the
defendant4s 5ampaign ontri"utions were themsel!es unlawful, 1the
proseutor2 repeatedly introdued testimony a"out those ontri"utions
in order to paint a fuller piture of 1defendant4s2 interations with
1C
pu"li oEials#5
l&&&iii
'he Ciruit Court a)nowledged that the defendant
raised a !alid argument that 0rests on the proposition that permitting a
.ury to draw ad!erse inferenes from onstitutionally proteted ati!ity
!iolates a defendant4s =irst $mendment rights#
l&&&i!

'he ourt deided that e!en if 9ings =irst $mendment laim was
.usti6ed, it wouldnt ha!e made muh of a di7erene "eause the
weight of the e!idene, notwithstanding the ampaign ontri"utions,
was enough to on!it#
l&&&!
It did, howe!er, suggest that in "alaning
the =irst $mendment with =9H 40+, 5onerns a"out .ury pre.udie and
onfusion should arry more weight in the onte&t of ore =irst
$mendment ati!ity#5
l&&&!i
9ap lyri e!idene ought to "e aorded the
same "alaning test sine it more often than not goes to the 0ore3 of
the =irst $mendment#
Rap&s 'ulnera"ilit# to (ias
9ap musi, with its 6rst/person narrati!es and !iolent imagery, is
partiularly !ulnera"le to "ias, whih should not only raise an alarm
regarding the potential pre.udiial impat its admission might ha!e in a
ourt of law, "ut it should also trigger strong onstitutional protetion#
Its tempting to ite e&amples from white, mainstream artists and
authors to show how we wouldnt normally on?ate !iolent lyris with
riminal guilt# Indeed, the New Jersey $C:; made se!eral suh
omparisons in its amius "rief in support of (onte S)inner, iting
Country musi legend Johnny Cashs 0shot a man in 9eno .ust to wath
1<
him die,3 lyri from 0=olsom Irison @lues3 or ro)er =reddy Merurys
lyrial onfession, 0 0Mama, I .ust )illed a man# Iut a gun against his
head, pulled my trigger now hes dead,3 from 0@ohemian
9hapsody3
l&&&!ii
@ut the fat that we ha!ent seen these types of wor)s
treated li)e rap lyris is telling in itself#
Lne of the few riminal ases in whih proseutors sought to
introdue other types of artisti wor) was in State . 1anson, an
assault ase#
l&&&!iii
Oanson was %uestioned a"out 6tional writings of his
that ontained 0instanes of !iolene3 on ross/e&amination and
su"se%uently appealed, ontending that suh %uestions were irrele!ant
to his harater for non!iolene and pre.udiial#
l&&&i&
'he 8ashington
Court of $ppeals re!ersed Oansons on!ition, stating 01w2ithout some
further foundation, the defendant4s writings were simply not pro"ati!e#
$ writer of rime 6tion, for e&ample, an hardly "e said to ha!e
displayed riminal propensities through wor)s he or she has authored,3
there"y re.eting 0the proposition that an authors harater an "e
determined "y the type of "oo) he writes#3
&
Clearly, our ourts and the
iti>ens that ma)e up our .uries simply treat rap musi di7erently#
$ 1BBR study "y researher Carrie =ried is partiularly
enlightening on the matter#
&i
=ried presented !iolent song lyris to
three di7erent groupsJ telling one group that the lyris were from a
ountry song, another group they were from a fol) song, and another
group they were from a rap song# 'he study re!ealed that the group
1B
that thought they were rap lyris found the song to "e more o7ensi!e
and a greater threat to soiety than the ountry and fol) groups#
&ii

=ried summari>es her 6ndings as suh,
'hese studies learly demonstrate that, e!en when as)ed
spei6ally to .udge only lyris, other fators suh as the
genre of the musi or the rae of the singer play a
signi6ant role in reations to musial lyris# 'he e&at
same lyrial passage, whih is aepta"le as a ountry
song or when assoiated with a 8hite artist, "eomes a
dangerous, o7ensi!e song in need of go!ernment
regulation when it is a rap song or assoiated with a @la)
artist#
&iii
;sing a similar rationale as the ourt in /.S. . (errios for
disriminatory proseution, in whih the Seond Ciruit statedJ
'o support a defense of seleti!e or disriminatory
proseution, the defendant "ears the hea!y "urden of
esta"lishing, at least prima faie, ,1- that, while others
similarly situated ha!e not generally "een proeeded
against "eause of ondut of the type forming the "asis of
the harge against him, he has "een singled out for
proseution, and ,2- that the go!ernment4s disriminatory
seletion of him for proseution has "een in!idious or in
"ad faith, i#e#, "ased upon suh impermissi"le
onsiderations as rae, religion, or the desire to pre/ !ent
his e&erise of onstitutional rights,
&i!
an argument ould "e made that defendants whose rap lyris are used
against them in riminal proeedings ha!e "een singled out apart from
other artforms "ased on raial pre.udies and "ias#
(errios wouldnt "e ompletely ontrolling here "ut the rationale
is instruti!e# 9ap musi is treated di7erently than other types of
musi, literature, and art# Judges, proseutors, and .uries are una"le to
see these lyris the same way the young men writing them do D as
20
6tional wor)s im"ued with soial and politial ommentary, and a
possi"le path into an industry with a num"er of legitimate .o"
opportunities# Instead, the lyris ser!e only to aErm stereotypes
,inluding suh traits as !iolene, hostility, and aggression- a"out the
pathology of "la) or :atino defendants#
&!

;sing rap lyris in ourt is a slippery slope to eroding the o!erall
protetions gi!en to all types of artisti wor) and soial ommentary
"ut, "eause rappers are predominantly young "la) males, the
ultimate e7et of admitting suh lyris is raially disproportionate#
Conse%uently, a disrete and insular lass of iti>ens, a lass that
typially reei!es heightened srutiny in onstitutional hallenges,
most strongly feels the impat of suh deisions# $ higher "ar ought to
"e set when onsidering the admissi"ility of a defendants 6tional and
artisti e&pressions as e!idene in riminal proedures#
Proposed Anal#sis
9eferring "a) to the ases disussed earlier, a tension e&ists
"etween admitting rap lyris that ha!e little to no relation to the ase
at "ar ,$nta!io Johnson
&!i
- and ases in whih rap lyris might !ery
well "e important and rele!ant e!idene as in the ase of @easley and
Tno& where the two oEers named in the rap song were also in!ol!ed
in the arrest of the men .ust se!en months prior to the !ideos
posting#
&!ii
'he distintion here is temporal pro&imity, or timing, of the
messages, one of the fators I propose for how to "est e!aluate the
21
admission of rap lyris in riminal proeedings along with spei6,
identifying details and onte&t#
=irst, ourts should onsider the temporal pro&imity "etween the
rime and the lyris# $ showing that the lyris were written after the
rime, as was the ase for Nathaniel 8oods,
&!iii
might indiate that the
rime may ha!e ser!ed as inspiration, or that the alleged rime
atually happened# Courts should also loo) for spei6 details within
the lyris that suEiently math details of the rime suh as the
loation of the rime, weapons, onspirators, and in.uries# 'his type of
lyriQdiret e!idene is illustrated in the Oolmes ase
&i&
when he wrote
lyris a"out s)i mas)s and hain/snathing D mathing the details of
the rime# =inally, where ourts do allow rap lyris to "e introdued,
they should permit e&pert testimony to analy>e the 0ontent, form, and
onte&t3

as well as "a)ground and proper interpretation of the lyris

upon 0whih .udges and .urors may e!aluate the admissi"ility,
redi"ility, and weight of rap musi lyris as riminal e!idene#3
i
!onclusion
0$ 6rst amendment analysis should lead to a pro!iding of
F"reathing spae for this art form,3 wrote the $C:;/NJ ,iting -AA$! .
(utton
%ii
- in its amius "rief, 0so as to pre!ent a 0hilling e7et3 on free
e&pression#3
iii
'he use of rap lyris as e!idene an lead to that
hilling e7et, with rappers "eoming onerned with their lyris "eing
used to inriminate them# Suh onerns might !ery well pre!ent
22
rappers from ommenting on ontro!ersial topis, whether they are
real life e&perienes or omplete fa"riations#
8hether due to "ias or unfamiliarity with hip/hop ulture and
rap musi "eyond whats ommerially most popular and a!aila"le,
ourts seem to assume, illogially, that rappers must doQ"e what they
write# @ut the .udge and .urys la) of respet for rap musi as art or
!alid disourse should not gi!e them the a"ility to strip authors of their
onstitutional rights# 8here the state uses ones politial e&pressions
against him in a riminal proeeding, no matter if those e&pressions
are in the form of a rap song or pamphlet, a !iolation of his freedom of
e&pression is li)ely to our# 'hus, its the responsi"ility of the .ustie
system to mo!e "eyond a mere analysis of the rules of e!idene to
inorporate a onstitutional analysis and perhaps some of the
proposed steps laid a"out a"o!e to ensure that the type of speeh and
e&pression that goes to the !ery ore of the =irst $mendment is not
hilled, silened, punished, or otherwise ontra!enes the spirit of free
speeh#
2+
2+
i 0Oeltah S)eltah#3 2.&.D#, on G#I#9#' ,Ga Inredi"le 9ap 'eam-# Gu) Gown
9eords 200<#
ii State !# S)inner, No# $/2201/0<'2 ,N#J# Super# Ct# $pp# Gi!#-, $ug# +1, 2012#
iii Id#
i! Id#
! Id#
!i Nielson, H# U Tu"rin, C#, 0ap #yri%s on 3rial# 'OH NH8 AL9T 'IMHS# Jan# 1+,
2014J httpJQQnyti#msQJAIIuM#
!ii 8ilson, S#, 0ap Sheets4 3he %onstitutional and So%ietal $ompli%ations Arisin*
,rom the /se o, 0ap #yri%s as +iden%e at $riminal 3rials# 12 ;C:$ HN'# :# 9H(#
+4* ,2004/200*-#
!iii Id#
i& Id#
& Gennis, $#, !oeti% 5In67usti%e8 0ap &usi% #yri%s as Art, #i,e, and $riminal
+iden%e# +1 CL:;M# J#:# U $9'S 1 ,200C-#
&i Ierry, I#, I9LIOH'S L= 'OH OLLG ,Gu)e ;ni!ersity IressJ2004-# 0In the late
1B<0s and 1BB0s, artists "egan appearing who personi6ed gangsters without e!er
ha!ing e&periened that lifestyleJ reord ompanies manufatured gangsters for
their sensational appeal# 'he o/optation of hip hop "y the mainstream therefore
"eame assoiated with Ffa)e gangsterism# Kangsterism turned into a
ommerial tool, sold for its gore li)e an ation ?i)#3
&ii Id# 0In order to retain a sense of authentiity and onnetedness to "la)
ommunities, and also for the glamour pro!ided "y ele"rity, !arious artists
"egan to li!e out the narrati!es of gangster li!es# 'he list of hip hop artist arrested
or imprisoned sine "eoming ele"rities is e&tremely long # # # # (irtually e!ery
hip hop artist mentioned in the mainstream news su7ered transmogri6ation into
a gangster rapper, e!en if he or she ame from a plae that didnt ha!e gangs per
se#3
&iii Stowers, C#, A,ter 1idin* /nder a (lanket o, 3all 3ales, 9anilla I%e 2akes /p As
0aps 9an 2inkle. IHLI:H M$K$MINH, Ge# 0+, 1BB0J httpJQQ"it#lyQ1ouhO<$#
&i! Id#
&! 9oss !# 9o"erts, 222 Cal# $pp# 4th RCC, ,201+-#
&!i Mayard, J# U Tamer, =#, 3he :; $ra<iest Days =n 0ap 3witter# CLMI:HV
M$K$MINH# Lt# 1, 201+J httpJQQ"it#lyQ1lH&tuu#
&!ii Id#
&!iii Gra)e# 1eadlines on 'a)e Care# Aoung Money HntertainmentQCash Money
9eords, 2011#
&i& Gennis, supra note 10#
&& Chang, J#, $hu%k D# ML'OH9 JLNHS# Sept#QLt# 2004J httpJQQ"it#lyQ1.an;;#
&&i 9ose, '# (la%k -oise4 0ap &usi% and (la%k $ulture in $ontemporary Ameri%a,
,1BB4-#
&&ii Smith, M# 3he 1ouse 3hat 1oa (uilt# NH8 AL9T 'IMHS# Sep# R, 2012J
httpJQQnyti#msQ1gs+NSm#
&&iii H"ert, 9#, Dan*erous &inds, 9LKH9H@H9'#CLM, $ug# 11, 1BB*J
httpJQQ"it#lyQW"N<<N#
&&i! 'i""s, G#, From (la%k !ower to 1ip 1op4 Dis%ussin* 0a%e, !oli%in*, and the
Fourth Amendment throu*h the 2ar on !aradi*m# 1* J# KHNGH9 9$CH U J;S'# 4C
,2012-#
&&! 8ilson, supra note C#
&&!i Gennis, supra note 10#
&&!ii Smith, supra note 22#
&&!iii Id#
&&i& ;#S# CLNS'# amend# I#
&&& See Ourley !# Irish/$merian Kay, :es"ian and @ise&ual Kroup of @oston, *1*
;#S# **C ,1BB*-#
&&&i Shi7rin, S# U Choper, J#, 'OH =I9S' $MHNGMHN', =ifth Hdition# 8estJ 2011#
>uotin* Ste!en G# Smith, (eliein* !ersons, !ersonal (eliein*s4 3he -e*le%ted
$enter o, the First Amendment, 2002 ;# I::# :# 9H(# 12++ ,2002-#
&&&ii Snyder !# Ihelps, 1+1 S# Ct# 120C, ,2011- >uotin* Conni) !# Myers, 4R1 ;#S#
1+<, ,1B<+-#
&&&iii Id# >uotin* Karrison !# :ouisiana, +CB ;#S# R4, ,1BR4-#
&&&i! Snyder, supra note +2#
&&&! Snyder, supra note +2, >uotin* San Giego !# 9oe, 12* S# Ct# *21, ,2004-#
&&&!i 9an)in !# MIherson, 4<+ ;#S# +C<, ,1B<C-#
&&&!ii See e&erpted lyris from 2Ia, 0$han*es,3 K9H$'HS' OI'S, Geath 9ow
9eordsJ 1BB2J
$nd still I see no hanges an4t a "rother get a little peae
It4s war on the streets U the war in the Middle Hast
Instead of war on po!erty they got a war on drugs
so the polie an "other me
$nd I ain4t ne!er did a rime I ain4t ha!e to do
@ut now I4m "a) with the fats gi!in4 it "a) to you
Gon4t let 4em .a) you up, "a) you up,
ra) you up and pimp sma) you up
Aou gotta learn to hold ya own
they get .ealous when they see ya with ya mo"ile phone
@ut tell the ops they an4t touh this
I don4t trust this when they try to rush I "ust this
'hat4s the sound of my tool you say it ain4t ool
my mama didn4t raise no fool
$nd as long as I stay "la) I gotta stay strapped
U I ne!er get to lay "a)
4Cause I always got to worry 4"out the pay "a)s
some pun) that I roughed up way "a)
omin4 "a) after all these years
rat/tat/tat/tat/tat that4s the way it is
&&&!iii @ri), M# 0ap 3akes $enter Sta*e at 3rial in ?illin* o, 3wo Dete%ties, NH8
AL9T 'IMHS, Ge# 12, 200RJ httpJQQnyti#msQ'+pMHI#
&&&i& Id#
&l Id#
&li Id#
&lii Ieople !# Irather, $11C122, 200B 8: 2++21<+ ,Cal# Ct# $pp# July +0, 200B-
,;npu"lished-#
&liii Gohrmann, K#, 3he 1ardest #oss# SI ($;:'# Jun# +0, 200<J httpJQQ"it#lyQ1sLTg0g
&li! Tu"rin, C# U Nelson, H#, A -ew $ali,ornia 3rend @ !rose%utin* 0ap# :$ 'IMHS#
$pr# C, 2014J httpJQQlat#msQ1stI+*4#
&l! Id#
&l!i Id#
&l!ii Id#
&l!iii 8oods !# State, 1+ So# +d 1 ,$la# Crim# $pp# 200C-
&li& Id#
l Oolmes !# State, +0R I#+d 41* ,Ne!# 201+-
li Id#
lii Id#
liii Tonigs"erg !# State @ar, +RR ;#S# +R ,1BR1-
li! @randen"urg !# Lhio, +B* ;#S# 444/44< ,1BRB-#
l! Ki"oney !# Hmpire Storage Co#, ++R ;#S# 4B0 ,1B4B-#
l!i Stegall, S#, #akeland 0apper "oes to !rison ,or a Son*# 'OH:HGKH9#CLM# Jul#
+0, 200BJ httpJQQ"it#lyQ'+L=WJ#
l!ii Id#
l!iii Id#
li& 8ard, I#, !itts)ur*h 0appers $oni%ted A,ter 3hreats A*ainst !oli%e in .ou3u)e
9ideo# II''S@;9KO ILS' K$MH''H# No!# 21, 201+J httpJQQ"it#lyQ1m(Vun#
l& Id#
l&i Id#
l&ii Gennis, supra note 10#
l&iii =HG# 9# H(IG# <01,d-,2-
l&i! Id#
l&! Gennis, supra note 10#
l&!i =HG# 9# H(IG# 402
l&!ii =HG# 9# H(IG# 401
l&!iii Oolmes, supra note *0#
l&i& Gennis, supra note 10#
l&& =HG# 9# H(IG# 404,"-
l&&i Id#
l&&ii Gennis, supra note 10#
l&&iii Id#
l&&i! =HG# 9# H(IG# 40+#
l&&! Id#
l&&!i Gennis, supra note 10#
l&&!ii Gawson !# Gelaware *0+ ;S 1*B ,1BB2-#
l&&!iii Id#
l&&i& Id#
l&&& Street !# NA +B4 ;S *CR ,1BRB-#
l&&&i =9H 40+, supra note R1#
l&&&ii ;#S# !# 9ing, C0R =#+d 4R0 ,G#C# Cir# 201+-#
l&&&iii Id#
l&&&i! Id#
l&&&! Id#
l&&&!i Id#
l&&&!ii $C:;/NJ, @rief of Ami%us $uriae $merian Ci!il :i"erties ;nion of New
Jersey in Support of Gefendant/9espondent# Go)et No# $/*CQ*</12 ,0C1CR4-, ,Jul#
2B, 201+-J httpJQQ"it#lyQ1lgAg:&#
l&&&!iii State !# Oanson, C+1 I#2d 1140 ,1B<C-#
l&&&i& Id#
& Id#
&i =ried, C# (ad 0ap ,or 0ap4 (ias in 0ea%tions to &usi% #yri%s# J# $II:# ISACOL:#
2R ,1BBR-#
&ii Id#
&iii Id#
&i! ;#S# !# @errios, *01 =#2d 120C ,2d Cir# 1BC4-#
&! =ried, supra note C<#
&!i See Stegall, supra note *R#
&!ii See 8ard, supra note *B#
&!iii See 8oods !# State, supra note 4<#
&i& See Oolmes !# State, supra note *0#
Snyder, supra note +2#
i Gennis, supra note 10#
ii N$$CI !# @utton, +C1 ;#S# 41*, ,1BR+-#
iii $C:;/NJ, supra note <C#