Remember when The Chicks (previously known as the Dixie Chicks) were indicted for killing ‘Earl’ after they admitted to poisoning him in their song “Goodbye Earl”? What about Johnny Cash being convicted for shooting a man in Reno, something he confessed to in “Folson Prison Blues”?
If your memory is failing you, it’s because those violent lyrics weren’t used against those artists; instead, it was universally understood the lyrics were part of the art, persona, and hyperbolic creative expression of The Chicks and Cash. But in his criminal proceedings, prosecutors are using Grammy award-winning rapper Young Thug’s lyrics to support their allegations against him. Young Thug was charged with participating in criminal street gang activity related to YSL, an Atlanta-based group and rap label that prosecutors claim is also a street gang. Fulton County District Attorney Fanni Willis claims that Young Thug’s social media posts and rap lyrics (e.g., “I never killed anybody but I got something to do with that body”) are nothing more than an admission to a crime “over a beat.” Critics on the other hand, point out the unequal treatment of violent lyrics in other genres and note that using often hyperbolic rap lyrics to convict mostly Black and Latino artists is problematic on artistic, evidentiary, and potentially racist grounds.
Evidence or Artistic Expression?
The debate about using rap lyrics in criminal proceedings is not new. Critics argue they are not literal, and that those who think they are lack an understanding and appreciation of rap as an art form. Using lyrics against rappers, critics argue, will stifle creativity, create a fear in rappers not present in lyricists in other genres, and disproportionally prejudice Black and Latino artists.
Federal Rule of Evidence Rule 404 would seem to prohibit the use of rap lyrics at trial as impermissible character evidence in certain circumstances. That is, it would seem to prohibit a prosecutor from using the lyrics to argue that rapping about violence or drugs means you’re a violent person or drug dealer. However, rap lyrics regarding drugs, violence, and gang affiliation have been successfully used countless times in criminal prosecutions.
For example, in United States v. Foster, 939 F. 2d 445 (7th Cir.1999), the only disputed issue at trial was whether Foster knew drugs were in a duffle bag he said he’d been carrying for someone else. Foster’s conviction was upheld with the appellate court concluding that the prosecution’s use of handwritten rap lyrics found in Foster’s notebook to prove he was aware the bag contained drugs and that he intended to distribute them was acceptable because the lyrics showed he was familiar with drug terminology.
In light of the increasing use of rap lyrics as evidence, legislators have begun introducing legislation aimed at preventing the misuse of lyrics in criminal trials. The proposed federal “Restoring Artistic Protection Act” or “RAP Act” would amend the Federal Rules of Evidence to create a presumption limiting the admissibility of lyrics in criminal proceedings and would force a court to decide, outside the presence of the jury, whether the lyrics at issue were intended to be literal or represented the confession of an actual crime. California and New York have passed similar legislation, though the efficacy of these bills is not yet known and the use of rap lyrics as evidence continues.
In Young Thug’s case, his lyrics are sprinkled throughout the indictment and will likely be central to the government’s claim that he was part of a Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act gang conspiracy. While most the evidence is unknown (a jury has not yet been impaneled), there is a risk that the government’s case creeps into the problematic reasoning that “because Young Thug has violent lyrics, he is violent and therefore part of a street gang.”
How those lyrics are used by the prosecution and whether the judge ultimately admits Young Thug’s lyrics as evidence will be watched by all sides of this discussion and will almost certainly add to the ongoing debate of whether rap lyrics are valuable source of evidence, a form of art and creative expression worthy of Constitutional protection, or something else entirely.