When rap lyrics are used against you in court: ‘They silenced me for 21 years’

Rappers have long had their music used as evidence against them in criminal trials. California could soon limit the practice

In 2000, McKinley “Mac” Phipps Jr was a 22-year-old rising rap star when he was arrested for murder.

A 19-year-old had been shot at a Slidell, Louisiana, club where Phipps was due to perform, and police quickly zeroed in on the artist as the suspect. A man who was working security at the venue confessed that he had killed the teenager, but still prosecutors pushed forward with a trial against Phipps.

Authorities had no physical evidence or weapon tying Phipps to the murder, but they had something else to bring to court: Phipps’ rap lyrics.

“‘Murder, murder, kill, kill’; ‘Pull the trigger, put a bullet in your head.’ Those are some of the lyrics that this defendant chooses to rap when he performs,” the prosecutor told an all-white jury, according to a recent NPR report.

Phipps was convicted and given a 30-year sentence.

Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US.

Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.

As prosecutors in Georgia face growing scrutiny over their use of rap lyrics in recent gang conspiracy cases against Gunna and Young Thug, advocates and artists hope the reforms will help expose the tactic.

“We’ve got a long way to go. There are people still sitting in prison who have been affected by this,” said Phipps, who was released last year after two decades in prison. “It’s an attack on free speech and particularly Black art.”

‘It’s effective for prosecutors’

Researchers have tracked more than 500 reported cases of prosecutors using rap music as evidence against defendants in the last 30 years, though that number is probably a significant undercount.

The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers, and when law enforcement “gang units” escalated their crackdown, said Erik Nielson, a University of Richmond professor and co-author of Rap on Trial.

The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats, and the strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.

Jack Lerner, University of California, Irvine law professor and an expert on the subject, said the tactic is used across the US, pointing to a 2004 manual of the American Prosecutors Research Institute, which encouraged the use of lyrics in search warrants and trials to “invade and exploit the defendant’s true personality” and present him as a “criminal wearing a do-rag and throwing a gang sign” to contrast the “nicely tailored … altar boy” in the courtroom.

Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.

Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors and that people are significantly more likely to perceive lyrics as violent, offensive, threatening, dangerous and literal if they are from rap, compared to other genres.

“As soon as you introduce rap, you’re compromising the defense’s ability to have a fair trial,” Lerner said.

Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.

“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?” said Nielson, the University of Richmond professor. He wrote about a 2013 California murder trial in which prosecutors tried a 14-year-old boy as an adult, claiming lyrics in his notebook were “autobiographical journals”, including lyrics from other artists’ which were erroneously attributed to him.

In the case of Mac Phipps, prosecutors presented the artist’s lyrics as evidence he was a criminal, despite overwhelming evidence that he was innocent.

Witnesses who had testified against him later signed affidavits saying police had coerced them to lie, including by threatening them with arrest. Last year, the Louisiana governor granted Phipps clemency, which did not overturn his conviction but allowed him to come home after 21 years.

“It was so surreal,” Phipps, 45, said about hearing prosecutors recite his lyrics in court. “Hip-hop was my way of dealing with city life, it was my livelihood, it was how I took care of my family. To have my art used against me in court, I felt like I had been smacked in the face by the very thing I loved so much.”

The song that prosecutors cited, Murda, Murda, Kill, Kill, was co-written with another artist “as a battle rap and play on words of a military cadence, like when soldiers are marching”, he explained. “It was basically declaring my lyrical dominance over other rappers.”

“I had no criminal record, no prior incidents or violence in my past, so all they could turn to, from their perspective, was the song lyrics. And for them it was effective in actually convicting someone who was innocent.”

Phipps also questioned whether members of groups such as the Killers or the Chicks (who penned the lyrics, “Earl had to die”) would have their work used against them in court.

“What most rappers say is either straight fiction or highly exaggerated. We’re artists. You don’t have to paint reality with art. You can paint the world as you’d like to see it. Art gives us an opportunity to escape from reality. And when that escape mechanism is criminalized, that’s an atrocity,” he said, adding, “I’m still trying to find my voice after being silenced for 21 years.”

‘I’m gonna say what I want’

The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice.

The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.

A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.

Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.

Nielson, the researcher, said he hoped California’s law would expand public awareness around the issue, but was skeptical it would have a major impact on preventing the wrongful use of rap lyrics, since judges can still approve the practice after a hearing.

Reggie Jones-Sawyer, the California state representative behind the bill, said legislators had to leave some “wiggle room” so that defendants’ work could still be cited when it was relevant, and so that it would be palatable to the courts and the governor. “This is a way to stop overzealous prosecutors from using creative expression, which should never be prohibited.”

Jones-Sawyer’s bill passed the California senate and assembly, and the governor has until the end of September to sign it into law.

The California District Attorneys Association said it did not take a stance on the bill.

Brandon Duncan is a San Diego rapper known as Tiny Doo who prosecutors accused of gang conspiracy in 2014, citing his lyrics as evidence he was connected to crimes he did not commit. Duncan said he was overwhelmed with joy over the passing of the legislation.

Duncan spent eight months in jail before a judge dismissed the charges.

When he got out of jail, he was nervous to start making his music again, he said. “It got to a point where I didn’t want to do it any more,” he said. “But then, I said fuck that, I’m gonna make what I want and say what the fuck I want to say. I’m going to be as creative as I want to be. I’m not out here hurting nobody or doing anything illegal. Leave me alone.”

“When people get together and fight for something, they hear us. We’ve come a long way from them telling me they could put me in jail for the rest of my life because of my rap lyrics.”

Contributor

Sam Levin in Los Angeles

The GuardianTramp

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