“Anything you say can and will be used against you in a court of law.” Increasingly, rappers, especially up-in-coming artists, are seeing this timeworn warning ring true as law enforcement deploys their creative expressions as evidence in criminal proceedings. With more and more rap lyrics and videos appearing in criminal cases across the country, the tactic is raising concerns for free speech and racial justice.
A group of celebrities and scholars led by Jay-Z signed a letter recently calling on New York lawmakers to pass the Senate Bill S7527, also known as the “Rap Music On Trial” bill, which seeks to curtail the practice. The letter states in part:
“This tactic effectively denies rap music the status of art and, in the process, gives prosecutors a dangerous advantage in the courtroom: by presenting rap lyrics as rhymed confessions of illegal behavior, they are often able to obtain convictions even when other evidence is lacking. No other fictional form, musical or otherwise, is (mis)used like this in courts. And it should come as no surprise that the overwhelming majority of artists in these cases are young black and Latino men.”
Expressing similar concerns in a memo justifying the legislation, its sponsors, led by Rep. Brad Hoylman (D), wrote: “Unchecked, these practices chill free expression, transform the figurative into fact, and warp criminal courts into instruments for suppressing provocative speech.”
The law would make creative expression such as rap lyrics inadmissible evidence unless the State shows, with clear and convincing proof, that the defendant’s words should be interpreted literally, rather than figuratively, and that there is a “literal, factual nexus between the creative expression and the facts of the case.” Furthermore, the “distinct probative value” of the creative expression must not be provided by other admissible evidence.
To help us understand the issue, I spoke with Andrea Dennis, co-author of the book, “Rap On Trial – Race, Lyrics, and Guilt in America,” and Alex Spiro, Jay-Z’s attorney who drafted the letter and represents many hip hop artists and other celebrity clients as a partner at the law firm Quinn Emanuel Urquhart & Sullivan.
The following transcripts have been edited for brevity and clarity.
Conversation with Andrea Dennis
Sepper: Why is the use of rap lyrics by law enforcement a concern?
Dennis: There are two major concerns: One is, when we think about the nature of rap music, rap lyrics, it is a creative art form. It is a form of expression. It could be expressing a range of emotions or experiences, but it is inherently a fictional art form. And so, the concern is that this evidence, so to speak, is being introduced into the legal process, in particular the criminal legal process, where the stakes are very high, without critical thought or scrutiny as to whether or not this fictional art form has some reliability such that it can be used at least somewhat as evidence and can be factored in or should be factored into decision-making, particularly by jurors. So we’re particularly concerned about the use of what is inherently a creative fictional art form in literal ways, in uncritical ways.
And the second concern relates to the potential for unfair prejudice. Because rap is an art form birthed by young black and Latino men in the Bronx, New York, and that has particular origins and how people think about rap music even today, almost 50 years later, that it is predominantly an art form associated with black and brown young men. And the negative stories that have been portrayed in the media, the negative perceptions that individuals have about rap music, coupled with negative perceptions about black and Latino young men, that that is a way to introduce the use of stereotypes or biases expressed or unconscious or implicit into the criminal legal process. And so, the use of this type of evidence injects either intentionally or unintentionally, the possibility of unfair prejudice against defendants.
Sepper: How common is this practice and when did it start and pick up pace?
Dennis: It’s hard to know precisely the data, because when you’re trying to determine what’s happening in criminal legal cases, there’s no central repository for information about what’s happening in criminal cases, there’s not any singular database you can go to to find every case in the local state and federal level nationwide over time to find what’s happening in cases.
The way we’ve had to learn about the practice, the phenomenon is through searches of legal databases, so WestLaw or Lexis, which have a limited set of cases, word of mouth, when we hear from other attorneys about cases they have or they’ve heard about or they’re working on, or when people reach out to us to ask us specifically for consultation or advice or just brainstorming about a case. And so, the number of cases that we have identified broadly speaking that have involved rap music evidence is around the 500 range. That’s a really small subset of all the criminal legal cases in the country. And so many people might say, “Well, that’s a really small number.” We think that’s really just the tip of the iceberg, because as I said, trying to uncover these cases is almost virtually impossible. And so, it would not come as any surprise if there were thousands or tens of thousands of these cases over time.
I can say that when we wrote the book, the earliest case that we had identified, arose in 1991. And that was a federal case out of the Seventh Circuit involving… Mr. Foster was the defendant. And since that time, we have learned of an earlier case from 1989 involving a young man, again, in the Midwest. I forget precisely what jurisdiction at the moment. And he had been accused of homicide, and he was tried. I said a young man, a minor, he was tried as an adult. And part of the evidence in that case involved lyrics he had written in a school notebook, and they were introduced at trial.
Sepper: Of the cases that you looked at, at what point in the criminal justice process do rap lyrics and videos most commonly surface?
Dennis: When I initially began my research and then Eric Nielson joined in, many of the instances that we uncovered involved the adjudication phase, because those were the cases that were reported on WestLaw or Lexis, maybe they had been appealed. And so, we were finding most of those cases involving actual adjudication, the effort to admit them during the trial. And then relatedly, sentencing.
Over time, we have come to see many more instances of them being used also in investigation or arrest or in charging, and then still continuing through the entire criminal legal process, even to the point of being… Factors in corrections. So when individuals are serving sentences and maybe there are some lyrics involved in their disciplinary proceedings.
So, it’s fair to say they make their way into every phase of the process. If you see them involved in adjudication, then it’s probably clearly the case that they’ve been involved in investigation and charging phase as well.
Sepper: In your book you identify four types of arguments the prosecutors make: (1) that it’s a confession, if the rap lyrics surface after the crime has occurred, (2) if the rap lyrics were written before, then they’ll argue it shows intent or motive, (3) that the defendant had some knowledge, (4) as basis for threat charges. Shed some light on each of these categories, and give us an example either of a real case or a hypothetical set of facts …
Dennis: If we start with the notion that the lyrics are a confession, generally these are written after the crime has occurred. And so, they are considered to be factual statements about what behavior the individual actually engaged in. And so, an example of this may be in individuals charged with homicide, and maybe it’s a homicide that was committed in a particular way with a particular type of firearm or a knife, or involved a particular victim. And then the lyrics are found and they reflect in some way the allegations of the crime. So if a knife was used, maybe there was some reference to a knife. If a weapon was used or a particular type of weapon was used, then they may reference a particular type of weapon. In some instances we see the lyrics reference also the victim’s name or street name in some way as well. And so, in many instances we’ve also seen these having been maybe written or crafted allegedly during a period of incarceration or just after charging. And so, maybe that’s an example of a claim that the lyrics represents some sort of confession.
Another instance involves, the use of lyrics to demonstrate motive or intent or knowledge. And here, recall, I just mentioned the Foster case from 1991, that very early case that we discovered. And in that case, he had been charged with drug distribution, he had been caught or detected while he was on a train from Los Angeles to the East Coast and he was carrying some luggage or baggage that law enforcement determined carried some illicit substances. And within also some of the other bags he was carrying, were lyrics written on paper and notebooks. And some of those lyrics referenced terminology related to drug distribution, keys, right? Kilos, other quite common and familiar slang related to drug distribution.
The argument there was that if he knew this particular slang, if he wrote these particular lyrics, that indicated he had some knowledge of drug distribution. Therefore, this was indicative of his intent to engage in drug distribution on that particular occasion. This is actually also closely related to the notion of the defendant’s knowledge – because they wrote lyrics with particular terms or content, that they’re familiar with illicit activities. Another example of this might be in allegations related to firearms or weapons possession. The notion being that if you wrote lyrics referencing firearms or referencing particular types of firearms, or the use of firearms, that means the individual is familiar with firearms and/or has possessed a firearm and/or has used a firearm. So that’s another instance in which we see lyrics being used to demonstrate an individual’s knowledge about criminal activities.
The final category you mentioned is this notion of the lyrics as an instrument of crime in and of themselves, the lyrics are a means to communicate a threat to an individual. I will say, this is one area of cases that we actually have seen increase over the years, the other cases, the other instances that we’ve just talked about were fairly common. The notion of lyrics being a means to communicate a threat, those cases have increased somewhat significantly over the years.
Here it’s relatively straightforward. You wrote a lyric, and in the lyric you made some threats to an individual. There are many instances in which we see this involving individuals within the accused community. They might author lyrics or be connected to lyrics that reference other individuals. The government will often say alleged rival gang members or people with whom they’ve had beefs in the community, and so they reference them by name. That’s considered a threat when coupled with claims in the lyrics that they’re going to get somebody back or shut someone up, what have you.
There is another type of threats case that is notable. It’s those instances in which individuals have been charged with threatening law enforcement or with threatening other public officials or government officials or educators, I’m thinking of teachers, through their lyrics. And again, in these, it may be that the individual is naming someone individually talking about alleged conduct, or in the case of law enforcement, misconduct in the community. And the individual then faces threats charge for this.
Jamal Knox is an individual that we write about in the book. And this is a particular example. He and a buddy wrote a song called essentially, “Fuck The Police,” an homage to the original. But they were talking about police misconduct in their community, in particular officers who they claimed had engaged in misconduct with them. And in fact, those officers, or at least one of them, had been accused of engaging in police brutality for another individual.
Sepper: The Jamal Knox case involved some First Amendment issues. In fact, it was presented to the Supreme Court, though justices ultimately declined to rule on it. But the question presented there was essentially, what constitutes a true threat? When there are specific people named, as the arresting officers were in that case, or there are other facts that are close to the actual facts of the crime, is it more fair game for prosecutors to use lyrics in that context as a basis for a threat charge? Or do you generally think it’s still problematic?
Dennis: It’s really interesting. What we have seen is case law seeming to suggest that if an individual names another individual specifically, either by their given name or their street name, that is more likely to be considered an actual threat. That is not protected by the First Amendment. A true threat not protected by the First Amendment. The challenging thing is that in many of these instances, what we have also seen is the author, the creator of the lyrics, complaining about government misconduct, they are speaking to the concerns of the public. And in some sense, it’s also within this category of political speech, which receives significant protections under the First Amendment.
Notwithstanding that an individual might be named for alleged misconduct, the fact that the individual, the author is complaining more broadly about matters of significant public concern, police brutality, problems in the community, in the case of teachers, as I mentioned briefly, improprieties by teachers with respect to students, those should, to me, fall squarely within this context of political speech, and receive significant protection.
In many of these instances, there is no other information that would suggest that the individual has any particular intent or actual intent to physically harm an individual, much less make a threat. Those are the most challenging cases, and the ones I’m also disappointed in, where courts and prosecutors are unwilling to grapple with the notion that this could possibly be political speech and hence protected. It’s really just sort of dismissed as well, this is rap lyric and you named an individual, so therefore it’s a threat and not protected. And yet, the substance of these are often really addressing matters of major public concern.
Sepper: Generally, the more famous rappers are given an artistic license, whereas up-and-comers are more frequently targeted by law enforcement. To use the most recent example, Kanye West just dropped a new song called “Eazy.” In the video, he buries alive and carries the decapitated head of his former wife Kim Kardashian’s current boyfriend, Pete Davidson, the SNL star. No one probably expects Kanye to get charged. But why do you think it is that the more famous artists get this license, whereas up-and-comers do not?
Dennis: This is an interesting problem. Over time, we’ve seen either locally or regionally well known artists and up-and-coming artists, and occasionally, really commercially famous artists. There was a case involving Project Pat from Three 6 Mafia, quite some time ago, in which the government sought to use lyrics, but it’s relatively rare that lyrics are used in cases involving famous individuals, not completely uncommon. And maybe this sort of general reaction I have is that like other criminal matters or other legal matters, the famous and the wealthy often fare better in our criminal legal process. That is just a generally understood fact, they fare much better than those who are indigent, those who have fewer resources.
I say that just to point out that there are instances in which those who are somewhat well known or more well known, have faced criminal charges and have had their lyrics used against them, or at least the government has tried, courts have been less willing in some of those instances to admit the lyrics, understanding more clearly for those individuals that there’s the creation of an alter ego or a stage persona that may not be the actual artist’s individual persona, or the concern that admitting it will unfairly prejudice the jury, because of the popularity or the fame of the particular artist.
That’s one aspect. So, if they are charged, they tend to receive slightly more favorable decisions in ruling in their cases, not always, but often they do. And then, if we think about the cases that are involved in the criminal legal process and many of the cases that we’re looking at, they involve young black and Latino men from what the government called high crime areas, low income areas, the so-called troubled youth and everybody in the neighborhood is engaging in criminal activity or gang activity.
The lyrics that are being presented, often speak to experiences within the community, experiences in the neighborhood. So crime, poverty, drug use. The lyrics that are being offered, tend to fit, so to speak, more closely with what either law enforcement or the government or the court is confronting. In that sense there’s a… in their minds, sort of a good fit in some cases, the belief that the lyrics are literal accurate representations of the truth of what’s going on in that community, which is in contrast to what the expectations or the sense is for someone who is commercially well known.
I also think there might be some sense that the really commercially well known artists are artists. And that the individuals who are accused in these more common cases, they’re not good artists, they’re not really being creative, they’re not really being artistic, they’re just writing lines that rhyme, they’re talking about their real life experiences, because that’s what they do, that’s the limits of their creative ability, without recognizing that that’s not precisely always a fair representation or assumption.
Sepper: The burden on prosecutors is beyond a reasonable doubt. Do you believe that, at least based on the cases you’ve looked at, prosecutors need the rap lyrics and the videos as evidence to meet their burden? Or are they introduced to bolster their cases?
Dennis: This is an interesting question. So it is the case that in many instances we’ve seen, the government doesn’t necessarily have other evidence that’s your so-called smoking gun, that is completely going to make its case. They may not have any forensic evidence, they don’t have a confession, they don’t have strong eyewitness testimony. In these instances, the lyrics if they’re going to serve as confession, they fill that gap. If they can indicate what might be going on in the defendant’s mind, they fill that gap, where they lack evidence.
Relatedly, I know we’re talking mostly about lyrics, but keep in mind we’re also now talking about videos, whether posted on YouTube or on social media or shared on other platforms. We are also looking now at videos and screenshots from videos as well. For example, if there’s a video made about a song and the government wants to argue that the individual or the individuals are involved in a gang, a screenshot from that video or the video itself can show that these were alleged gang members.
My concern is that in many of these cases, the evidence is vital to the government because the strength of the other evidence is questionable. So whether you think that they need them to meet their burden or it’s using them to bolster, it’s a little bit the same. It’s not that it couldn’t exist, but I’m not offhandedly familiar with a case where the evidence was so strong that they could have just proceeded without the rap lyrics or the rap evidence. In that case, I would say it’s purely to bolster.
My argument is if you’ve got sort of an open and shut case in your mind, then you don’t need the lyrics, the lyrics become cherry on top, they become gravy, and you actually don’t really need them to meet your burden. Not having been a prosecutor, you might ask them what they think, is it meeting their burden or is it bolstering their case or doing a little bit of both? But my concern is when these are used in cases that seem on their face otherwise weak.
Sepper: Why is it that these lyrics are so effective at persuading juries that the defendant is guilty? And from a defense attorney’s point of view, how hard is it to rebut the prosecution’s narrative?
Dennis: There are a number of factors. One is if these are lyrics allegedly authored by the individual who’s accused, they’re sort of words out of the mouth of that individual, and they’re either a confession or sort of a quasi confession, or at least we sort of think, well, if you said it, then you’re sort of responsible for what you said, and what you said is probably true, which by the way, is not always the case, we have many instances of that. So because they’re words that come allegedly from individuals, those carry significant weight for people. Same if you’re appearing in a video as well, you were part of that effort, you were involved in that effort. That’s a little bit more powerful. They become quasi confessions. Words out of the mouth of the individual have significant power.
All trial attorneys, whether criminal or civil, are involved in narratives, they’re involved in storytelling. They have their evidence, but they’re trying to convey a narrative or a story that’s going to resonate with jurors, both resonate in terms of guilt, but also resonate sort of cognitively and emotionally with what they understand about the world. You want to tell a story that the jury can relate to. This is a common teaching in trial practice. Tell a story that the jury can relate to. Tell a theme that they’re familiar with. Rap and rap music and the connection with black and Latino young men, fits a story, a narrative that many jurors can understand. These young people from that neighborhood, this is how they live/ Because we know that’s how they live. And then they wrote lyrics about how they live and this is what they do. And it all just… it makes a nice coherent story.
Relatedly, it is a story that builds on expectations, and then I’m going to go to sort of biases and prejudices, whether expressed or unconscious. And so it’s building on even sort of those aspects of it. For those three reasons, they become particularly powerful evidence. We’re just telling narratives and tropes about young black and Latino men that fit with what we have long said about them, and we understand about them in these types of cases.
Sepper: How much of this problem do you think is related to a general misunderstanding of rap as an artistic form?
Dennis: It’s pretty significant. My biggest concern at the moment is, as I mentioned, this sort of uncritical assumptions and perspectives on rap music and rappers. What’s missing in the conversation and part of what’s missing in the criminal legal process is scrutiny of the poetic devices. So, there are lots of poetic devices, artistic devices that inform how rap music, rap lyrics are created, just as there are with all sorts of other literary art forms.
The uncritical assumption is, again, these are just rhymed words and lines over music. A more thoughtful understanding is that there is rhyme. There’s rhyme in terms of words, there’s rhyme in terms of the various lines, but there’s also we could think about flow. You choose words that fit with the flow of the beat, and that make the song sound good.
There are also more traditional artistic or poetic devices. The common use of metaphor and boasting and hyperbole. There’s also common here the use of first person narrative, but which challenges many of our assumptions and understandings about art, because in the rap space, telling a first person narrative story doesn’t necessarily mean that is the performer’s or the author’s first person experience. You might use the first person narrative rather than third person to convey the song. But it doesn’t necessarily mean that it is the actual performer’s or the author’s experience.
There’s also a failure to recognize, as with any fictional art form, that the author or the creator can rely on maybe their own personal experiences, but also what they see and observe in the experiences of other individuals, in their communities, in the world. And relatedly, they often rely on common tropes and narratives and stereotypes, and they push the boundaries of those within the song. So there are plenty of poetic and creative devices that play into how we should think about these songs in the criminal legal space, as well as in just society and the artistic space. And that’s not happening.
The other aspect is what we call commodification or commercialization. There have been many different genres and sub-genres of rap music since its inception. Some have been more commercially popular than others. There’s a period of the formation of gangster rap, we could have a whole conversation about whether that started with East Coast, West Coast, and who took the lead on that. But the notion that that genre of gangster rap from the late 80s, early 90s, is what is being offered in criminal cases today, it has a significant factor here.
Many times we will see law enforcement and prosecutors characterize the lyrics as gangster rap, which at this point we think is a relatively unhelpful concept. We’ve moved so far beyond just the genre of gangster rap. There are many sub-genres, there are local and regional flavors, there are East Coast, West Coast flavors, artists have their own particular flavor. To just say, “It’s gangster rap,” is unhelpful. But what that does is create a particular picture about the music, about the individuals. But part of that relates to this notion that comes from the music industry. What is most popular, what is going to be most successful, what is going to sell the most, is gangster rap, or some variation of that.
Whether the individual is just a hobbyist or an amateur or an up-and-coming professional, a professional, there is certainly this pressure to create so-called gangster rap. They are tailoring the content of their lyrics toward what they think will make them potentially commercially successful. So that’s another factor that needs to be considered here. Again, if you want to write a certain type of best-selling fictional genre, maybe you’re writing the romance novel, because that is commercially successful, the same thing happens here.
Sepper: Has the introduction of expert witnesses helped address this problem?
Dennis: It depends whose expert you’re talking about. We take significant issue with the government’s use of experts to offer lyrics and to opine on lyrics and try and interpret lyrics for the court or for juries. So, the government often will admit an individual’s lyrics or a rap video through a law enforcement expert, often one that’s qualified as a gang expert, I’ve got my own issues with gang experts, but we can leave that to the side now, but the notion is that these government law enforcement gang experts are being permitted to testify about the lyrics or are being permitted to read them into the record, they’re being permitted to talk about particular terms and opine on what those terms mean, this particular term should be given this understanding.
They’re being permitted to opine on particular names, I mean, particular individuals and particular locations, I mean, particular places. And ultimately, that they’re being permitted to opine that these lyrics represent criminal activity by the individuals. We take significant issue with that because these aren’t individuals trained either experientially or academically in what we would think would be important: literature, music, sociology, African American vernacular English, rap music, popular music, cultural studies.
There are all sorts of disciplines and that study, rap music or more broadly literature or black literature or black popular culture. And that is not these experts. Not that there couldn’t be one, but we haven’t come across an expert who’s got training, either experientially or academically, in those fields that we think are particularly relevant to offering the lyrics. Some of the opinions we’ve seen offered are just, “Well, I was told that this term means that,” or, “I was told that this person is that person or we figured it out by looking at surprisingly, their gang information or their gang database as the source for how to interpret lyrics.” And in the most extreme, we’ve seen these experts indicate, “Well, I don’t even like rap music or I don’t even listen to it except when my kids are in the car.” Which is indicating that they don’t know very much about it, that their range of knowledge is limited and many of them know very little about the rap industry, the music industry, and yet they’re being allowed to opine.
In one way, the use of the government’s expert has magnified the problem to the extent that there have been cases in which there has been a defense expert, and quite openly, my co-author has served as a defense expert, that has helped to combat the problem of the government’s experts. So in that sense, it has helped to address the problems. He’s been able to offer a more rich, thoughtful way in which individuals, courts, and jurors should assess the information and understand what’s being said as a counter to what the government is offering.
Sepper: Looking at the history of rap and the role it has served in marginalized communities, what’s the relevance of that history from a policy point of view?
Dennis: Policy, law, they often interconnect, but don’t always. But part of it is understanding that if the origins of rap were really a response to conditions in underserved low-income communities in which black and Latino young men lived with others, their families, then we have to continue to keep that in the back of our mindset, that the emergence of the creation of this particular art form was a response, a way to explain to the world what was happening in those communities. And that continues to be the case. Storytelling about what’s happening to the people in those communities.
As I mentioned, there are many different genres and sub-genres. So some of it… good things that happen in the community, good people that are in the community, but also the bad things that happen in the community that many people are unfamiliar with. We have to keep that in the background. If we fail to recognize, particularly as I talked about in that First Amendment context, threats cases that are alleged to have been made against law enforcement, we are tamping down on the ability of individuals to use a creative form of expression to talk about what’s going on in their community, to talk about particular bad law enforcement, to talk about bad seeds. And essentially, we’re denying them the ability to do that. Or I guess people would say, “Well then they should write a letter or write a news article,” but this is their particular chosen form and way to express what’s going on in their community. It’s not intended to be a threat, it’s intended to raise public discourse about what’s going on.
That’s a particular concern with not keeping in the forefront why this particular art form emerged, and that even today many young artists view the way that they can make it out of their communities, the way they can have some financial success and professional success, is through this particular art form. There’s a common refrain, you can be a gangster, you can be a baller, you can be a rapper. If you don’t have any athletic ability, you’re not going to be a baller. If you don’t want to be a gangster, then what are you left with? You’re left with being a rapper. And they have seen that individuals can make it out, they can have some success, maybe not. We don’t have to be talking about Jay-Z and Dr. Dre’s success, you could just have enough success on a modest level, but one that provides a way to support yourself.
The other policy aspect is, routinely using these lyrics in a way that is designed to discourage not just the criminal activity, but this type of communication and expression. We are eliminating a pathway out for many individuals, notably I would say, without providing other pathways out.
Sepper: You mentioned bias several times throughout our conversation. And the fact is that you don’t see country music or rock music targeted in the same way that you see rap targeted, even though those genres can be equally and sometimes even more violent. There have been several studies done that have compared rap to other genres. Can you speak to some of those studies and what they have found generally?
Dennis: Let me start by saying we have looked for those cases involving other musical art forms, involving other creative art forms. And they’re relatively few and far between. Tere was for a period of time and occasionally still now a subset of cases in which hardcore rock or heavy metal was used, but it was not used in the same way as the context that we’re currently talking about. So we put those to the side. But we have looked for those cases involving other musical genres and not found them and not heard of them.
So, if anyone has one, please send us one. We would love to know that this is not the only art form, but that’s the point, is we can’t find these cases, we haven’t found these cases. And sometimes we’ll say, “Well, it’s because those people aren’t getting in trouble.” And I sort of tilt my head as I’m doing now and think, well, first of all, that’s probably not likely the case, but also certainly we have heard of artists from other genres or individuals who have some artistic involvement or background getting into trouble, and yet we still haven’t heard about lyrics being used in those cases.
The question is, well, why not? One apparent answer is the racial aspect of this. That again, many of the targets of the criminal legal process are young black and Latino men. And this is a form of expression that fits with the narratives and the tropes we’re trying to tell. And that’s been reinforced by social science studies, in particular, by psychologists, but there are a few others in related disciplines.
The notion here is twofold. So, one of these studies… And these are from the mid to late 90s, and some have been replicated over time. But one has indicated essentially that there is… As I sort of tongue in cheek put it, that rap is bad. In that particular study, individuals were presented with a set of lyrics, they were told that these were rap lyrics that had been written by a defendant who had been charged with homicide. And they were asked to rate the individual on a series of binaries. And these were all binaries that were essentially good and bad. So, caring and uncaring, violent, not violent, selfish and unselfish. So just a series of binaries of those types of characterizations.
The upshot is that knowing that these were rap lyrics, the participants rated the individual negatively on all of these sort of characteristics, these binary sets of characteristics. And that the fact that these were rap lyrics, was more influential in their decision-making than the fact that the individual had been charged with homicide. So rap is bad. That’s sort of the very quick way in which I characterize that.
Another study done presented a set of lyrics taken from a folk song. Individuals in the study were presented with the set of lyrics and either told that they were country lyrics or they were rap lyrics. In other words, the person who authored them was either a country artist or a rapper. And asked to sort of gauge their perception. And again, when the individuals understood the lyrics to be rap lyrics, was rated more negatively. It was the same set of lyrics, by the way, again, taken from folk music. So now let’s add folk music to the mix.
This leads to the biasing effect in the criminal legal process for the decision-makers. Whether that’s because there is express bias that the individual holds, or known bias, or whether that’s because of unconscious bias, that may be hard to distinguish, but those are some of the studies that sort of reflect the potential for bias along the way.
Sepper: Could these studies be introduced into evidence by the defense to explain to the jury, “Hey, look, like there’s a huge chance of prejudice here,” or even to convince the judge to exclude it from evidence?
Dennis: Primarily the path I would think could be taken or should be taken is, in a pre-trial motion, to exclude the lyrics. Arguing to the court that admission of the lyrics, even assuming some probative value is going to be substantially outweighed by unfair prejudice. We can use these types of studies to demonstrate the types of prejudice, the unfair prejudice that can flow to individuals. So I do think it can be used in that particular phase. If you’re assuming then that the lyrics are evidence as admitted at trial, then you’re going to have a conversation with the court or the judge about whether or not the studies can be put before the jury. I will suggest that the government is not going to put these studies before the jury, so you have to have a defense expert who’s going to offer these particular types of studies. But then there are going to be some limitations the court might have on whether you can offer the particular studies.
Sepper: We see rap lyrics and videos come up when prosecutors seek a gang enhancement, where X number of years are tacked on to the sentence, or when they bring gang conspiracy charges. Help us understand how these cases play out, and how is gang membership validated?
Dennis: There could be a couple of ways. So, one of the points I want to make that I haven’t made earlier, but it’s particularly important here is that, we have seen in prosecutorial training manuals the encouragement that law enforcement and prosecutors should be looking for this type of evidence, rap music evidence, because it can be helpful in characterizing the defendant as a real criminal. It can be important in showing what the defendant was thinking or what they’ve confessed to or… And those manuals have been gang training manuals. So gang-related crimes.
From the prosecutorial education perspective, it’s often brought out in connection with gang-related cases. We’ve seen many more cases than just gang-related cases, but we do often see music and lyrics being introduced in gang-related cases in a couple of ways. So, it could be for gang-related charges. So, the individual is a member of a gang, the gang is engaged in a conspiracy to engage in criminal activity, and the most extreme, continuing criminal enterprise or RICO cases.
In that instance, prosecutors will seek to use lyrics or videos to show the connection between individuals, and in some instances criminal activity. So the connection between individuals. If you’re in a song, someone’s given a shout out to A buddy and B buddy and C buddy and D buddy or a particular neighborhood that the government alleges is controlled by the gang, or particular behavior conduct is talked about in the song, illegal conduct, and the government alleges that that is actual criminal conduct, they’re just talking about what the gang has actually done, or indicating allegiance to the gang. So then that is one way in which the lyrics are introduced.
I will say again, to this point of rap music, videos, and screenshots to show sort of place and space where the alleged gang activity is occurring and where these videos are allegedly shot and the connections between the individual, if you’re in a video with, A and B and C and D, then we think that’s a gang and you’re in that gang. Also, hand signs. So there will often be individuals throwing hand signs in videos that the government seeks to introduce. And of course, the allegation is that the hand signs are gang signs and everybody’s throwing it and they all know that it’s a gang sign, or that individuals are wearing certain colors and they’re all wearing certain colors, or whoever’s wearing certain colors is a member of that particular gang. So that’s the way in which if the government is trying to establish the existence of a gang and then conspiratorial acts by the gang, it will use lyrics or videos to do that.
The other relates to sentencing. We have seen some instances where it’s a particular charge, I don’t know, we could say firearms or homicide or an assault, and the allegation is that it was done on behalf of a gang, so that should warrant a sentencing enhancement. This looks quite similar, which is you have to prove that the behavior was done on behalf of or to benefit the gang. Quite similarly, as I just explained, this is how the government would establish gang membership and that the particular crime was committed on behalf of the gang.
In terms of sort of gang membership being proven, many people are probably familiar with I hope, maybe less so, the notion of gang databases. In other words, law enforcement has been amassing information on individuals it believes are members of, or affiliated with, or associated with gangs. The really low tech version of this started in Los Angeles, decades ago when officers would just write on little index cards, who they were in contact with and what gang they were alleged to be part of, and what the indicia were. So was it because they were in a particular area? Was it because they were associated with a particular individual who’s known to be a gang member, according to the government? Was it because they admitted being a gang member or they were wearing certain colors or they were flying certain sports paraphernalia?
Many indicia of gang membership are used by the government, and then they are related to rap lyrics or rap music. The problem is, over time we’ve moved from these low tech cards to online computerized databases. They are amassing huge quantities of data. And a completely different topic, but one that’s related is, what is the government doing with this big data? How are they searching it? Are they using algorithms to search the databases and decide who’s allegedly involved in a gang? And they’re inputting this rap music evidence and lyrics into that database as well.
Finally, the problem is, I like the use of your term “validating,” but we don’t know to what extent it is validated or corroborated, because either the third party or the law enforcement agency or the government agency is very, very silent on who is in that database. What are the indicia being used to enter you in that database? It’s almost impossible to get information on what is being entered into those databases. Not to belabor the point, but there was a study a handful of years ago in California about CalGang, California’s database. And the most extreme was that there was a young child, a toddler in the database. How can there possibly be a toddler in a database?
Sepper: These databases a little bit remind me of the Do Not Fly list on how people would just land on it and they were innocent, had nothing to do with terrorism, but their right to travel was restricted. And it was just a big mess…
Dennis: It’s absolutely the same. It is absolutely the same. And again, another conversation about big data, amassing of data, collection of data, analysis, and how it’s being used, but that is an implication here as well.
Sepper: Let’s talk about solutions. You signed a letter that was written on behalf of Jay-Z and a group of artists and scholars calling on New York to pass the Rap Music On Trial bill, which would make it harder for prosecutors to introduce lyrics into evidence by requiring them to meet a higher burden. A showing by clear and convincing evidence that there is some close nexus between the lyrics and the facts of the crime. What do you think of that law? Is it sufficient? And would you be a proponent of a complete ban, whereas this law is not?
Dennis: Obviously I’m a signatory on the letter, the letter speaks for itself, I’ll let obviously each artist speak for him or herself, but I do think it’s a good first step. And I say that because I’m happy to see legislative action on this. The cry that we’ve been raising is that law enforcement and prosecutors in courts have not done a good job of policing this practice. If courts are the sort of the last gatekeeper for this particular practice and it’s not working sufficiently, which is, again, been the cry. There’s not a rigorous enough analysis and thinking about whether to admit this evidence, then a legislative solution is one that’s appropriate, because it’s legislators who can create these criminal procedural rules.
I’m happy to see legislative policy making action in this regard. It’s not a complete ban, there have been versions that are stricter. Sure, I am excited to see the prospect of this passing, because whether this passes or not, or the comments and feedback during the legislative process will be informative as to where sort of legislators or policy-makers could go or could not go. But I would also want to see this passed to see what effect it does have on the ground. Is it going to have an effect on the ground? And then we can decide, do we need a stronger solution? Do we need a different solution? What have you.
I’m also sensitive that law-makers have political sensitivities. They’re trying to get something passed. Even if I were to say, “It should be a complete and absolute ban,” they’ve got political economies they’ve got to deal with. They’ve got to get enough people on board to pass this. I’m sensitive to this and to that aspect of it. You certainly don’t want to present something that is politically infeasible, unless you’re willing to take the really long game and wait to sort of see if you can get that.
Sepper: Speaking of politics and how that influences policy choices, we’re experiencing, or at least there is a perception that the crime rate is going up. Are you worried that this will stall progress on criminal justice reform? And then zooming out further, where do you see this particular issue of rap music on trial fitting into this larger context of all the various problems with our criminal justice system?
Dennis: I do think that the narrative that’s out there is that crime is on the uptick. There’s probably a little bit more precision to that statement that crime is on the uptick, but that’s what lots of American citizens, legislators hear, but there’s actually a little bit more nuance that should surround that, it’s not all crime everywhere. When that narrative gets out there, then usually the pendulum swings towards get tough on crime. That could be one expected response is that we see the pendulum begin to swing back against some of the legal reforms.
I also think it’s part of a larger political change that’s happening, just a general backlash against any progressive policies, any reform policies, and lots of different areas, but there have been a number of criminal justice reforms in the last decades for lots of reasons. It brought interesting bedfellows together. Some were concerned about money in their jurisdiction, some were just concerned about mass incarceration, some were just concerned that the system had been too punitive and wasn’t offering rehabilitation knowing that individuals have to go back to the community.
There’s part of a significant policy political sort of pushback on all sorts of reforms, including those types of reforms. So, the narrative that crime is increasing and the pushbacks on many sort of more progressive reforms, it would not be surprising if we see some rollbacks of criminal reforms and some stalling of current criminal reform efforts.
The larger context of criminal justice reform, I spoke a little bit to that. For me, I know this is in the book and in my research and in all of my talks, the focus has been on rap music and rap lyrics as criminal evidence with the focus on the racialization, the racism that undergirds that, and the effects on creators and artists, but it is part of a larger story, part of many larger stories and problems within the criminal legal process. So, you and I just touched on it in the conversation. You know, data, data collection, surveillance. Many people are not aware. There are law enforcement officers and sometimes whole law enforcement units that spend their time surveilling online on all sorts of social media platforms. That’s what they do, looking for criminal activity, or criminal activity that could pop off.
There’s a surveillance issue, which is a big issue in the criminal justice process. So, other issues, we talked a little bit about the gang database, which obviously relates to surveillance, but who’s getting into these databases? And do they get noticed? And are they removed from the database? And when? And how? That’s another larger issue. I also think it’s part of a larger issue of this notion that the rules in the criminal legal process are race-neutral. Or they’re neutral. They’re gender-neutral, they’re race-neutral. They’re neutral for everybody. But this type of phenomenon and this type of practice indicates that while the language of the rules might be race-neutral or neutral in other respects, how the implementation is carried out and how the rules are applied and understood, is racialized. There’s differential treatment.
It’s a historically accurate statement to say that blacks have been mistreated through the criminal legal process since their beginnings on the shores of this country. The criminal legal process has been a tool to always regulate and control black individuals, and this is continuing in this. We are now controlling black expression through the criminal legal process and we are continuing to do that with this new art form.
In the criminal legal process itself, blacks have always been spoken about derogatorily. So at the beginning was literal use of racial epithets, the N-word. Literally to refer to an individual in the courtroom. We figured out that’s problematic, maybe we’re going to have some rules. Let’s say that’s prohibited. So we moved then to racialization, a lot of the animalistic representations and terms used to describe blacks in the criminal legal process. As animals and monkeys, and what have you.
So then, we moved to that. And okay, we realized that maybe that’s also inappropriate, so let’s have some rules which tamp down on that. Then we moved to characterizations of blacks as criminals and thugs. So, that’s become a space that just depending on which courtroom you’re in or who you’re speaking to is more or less regulated.I do think this use of rap music in evidence is a modern manifestation of that sort of treatment within the actual courtroom of black and also now Latino individuals.
It’s a way to talk about or inject race without really injecting race, we’re injecting gangs to rap music, which we associate with young black and Latino men, we’re injecting pictures and videos of young black and Latino men from the government’s perspective engaging in criminal activity or… in those photos of these visual representation. This issue in one respect is about just the admission of what sort of a quirky type of evidence, but it speaks to many of the larger concerns in the criminal legal process that we’ve had since the beginning of this country, and that continue today. And it speaks to some of the newer issues we have, again about technology and databases and what have you.
Sepper: This leads me to my final question. If I gave you a magic wand and you can solve only one of these issues that you just discussed, trying to get a sense of priorities here, what would you choose?
Dennis: I honestly have no earthly idea. Part of that though relates to my perspective. I tend to… Again, even though this talk and the book relate to a particularly narrow topic, I really believe in a systems approach or understanding, or we could talk about ecology. The problems with the criminal legal system, there are many problems within the system. If you fix one aspect or one participant or one stakeholder fix, you still have to deal with the various other institutions and stakeholders. There is not one problem that can be fixed without addressing all of the other problems within the system.
I understand that the criminal legal system cannot be fixed by itself, because the criminal legal system interacts with so many other systems: housing, education, mental health, economics, health, the political system. To fix the criminal legal system requires tinkering with all of those other systems too.
So, thank you. I would love a magic wand, but I need like three wishes or three ways or 3 million. I have to punt on that. I can’t pick one problem to fix, because there are so many problems that merit so much attention, and that fixing or tinkering with one problem just recognizes you have to tinker with all sorts of problems within the system and outside of the system.
Conversation with Alex Spiro
Sepper: I’m so glad to have you as a guest because you’ve been on both sides of the criminal justice equation. You served as an Assistant District Attorney in Manhattan, and then you transitioned over to the defense side. Recently you authored a letter on behalf of your client Jay-Z and many other hiphop artists including Meek Mill, Fat Joe, Kelly Rowland calling on the legislature and the governor to enact the Rap Music on Trial Bill. And I want to talk all about the bill, but before we get to that, I want to discuss the issue. . .
How often do you see rap lyrics actually being used in New York and across the country?
Spiro: At trial and up on appeal, and in case law that then gets digested by lawyers across the world, not that readily, but at bail hearings and sentencing hearings far more often than people realize. All one needs to do is go into a courtroom in Manhattan or the Bronx or Brooklyn, walk in and listen to a bail application from a prosecutor where there’s a 17 year old kid. He’s accused of doing something and they say, “And by the way, judge, if you look at YouTube, he’s dancing in this video and there’s somebody wearing a red handkerchief in that video. And we think he might be associated with violence. He might be associated with a gang, listen to the music,” and the judges for their part, aren’t in a position to really vet that information and they come, their generation’s older. They come from a different memory in different place in time and they can’t siphon through what’s real and what’s not. And that leads to the criminalization of those very lyrics.
This system in this country has hundreds of years of backwardness and mistakes on these issues. So the jury that you’re in front of is often an almost all white jury. You have an almost all white cop base or a cop base that is not from the same community in which they police. You have an older Caucasian judge, most likely in all likelihood, you have a mostly Caucasian jury and you have now tainted them with information that’s just not relevant. So the question is, why would you risk all of that? Why would you try to stifle speech and create in music? The pros and the cons of that don’t make sense. And we don’t want to leave that for judges to decide. We want to codify that in a law that says, “It’s enough already.”
Sepper: Let’s transition to this bill. How would it change the rules of evidence?
Spiro: It would make it improper to use lyrics in the way that we’re discussing that doesn’t mean, of course, that if a person confesses and sings, while they confess that you could per se not use it. But what it would do is codify this idea that it’s presumptively improper to use rap lyrics as evidence.
Sepper: Why aren’t the pretrial hearings that currently exist, or the judge’s discretion to exclude evidence that is prejudicial and irrelevant, or the ban on character evidence – sufficient to prevent the concerns raised by law enforcement’s use of rap lyrics in criminal cases?
Spiro: Because judges are biased, just like people are biased because judges are people just like people are people. And number two is the blunt force of the conspiracy law basically says, “If these two people are associated with each other, if they’re associated with anybody, that’s in the gang, if they’re associated with another guy that’s associated with another guy, they could be part of the same conspiracy.” The prosecutor just says, “Listen, this rap music, this rap video, it shows that they all know each other. It shows that they’re all hanging out together. It shows that they’re talking about the same kinds of things.” But it’s completely misplaced and illogical if you strip away at it. At first, it has appeal. It’s like, “Okay, this shows they know each other. It shows that they’re talking about similar subject matters,” and judges are, mistakenly in my judgment, letting it into evidence, or at least being swayed by, it’s even tainting the judiciary. It taints people at bail hearings. It taints people at sentencing. And the pros of using it do not outweigh the cons.
Sepper: Under this new proposed standard, prosecutors would have to show by clear and convincing proof that there is a factual nexus between the lyrics and between the facts of the case. Can you give us a typical hypo where such evidence under this new standard would be admissible or inadmissible?
Spiro: The only time it would be admissible would be if there’s a clear nexus with great specificity of detail and temporal specificity. Okay. So what that means is, specificity of detail means the person is not rapping about somebody being shot in Brooklyn. They’re rapping about the corner of such and such and such on such and such date and that all lines up. And there’s other corroboration that suggests that the person was present there, things they couldn’t have just learned through hearsay. And if enough of that is put together, then it wouldn’t block it, but they would have to actually have proof, not speculation and not just weaponizing and criminalizing the lyrics.
Sepper: Rap music is autobiographical in nature. And there’s a component of it that is, “I’m being real here. I’m telling you about life as I’ve experienced it.” But the argument here is that rappers have personas; that is, Sean Carter isn’t necessarily Jay-Z. Where is the dividing line between Sean Carter, the person and Jay-Z the persona when, if you listen to a song, it seems like he’s telling you his story.
Spiro: Well, listen, one of it is, again, we get back to racial bias in the way that rap music has been looked at for the decades in which it’s become the most powerful, important genre of music in the United States and hope and inspiration for millions and millions of people. But listen, when Bob Marley talks about shooting the sheriff, we don’t look at him differently. Hulk Hogan throws somebody out of a ring. We don’t think of him as violent. There’s something in our society that looks at the black rapper as a criminal and also a black rapper. And that’s the problem. They are becoming wed together. And that’s not fair. Now, when you say it’s autobiographical, I would sort of put it differently, which is that it’s a description of somebody’s circumstances. Just like the photographer that takes pictures of war torn countries. And just like people that write poetry about the sadness in their community, aren’t conspiring the sadness in their community. What they’re trying to do is express their community as the way that they experience it. And the poet is not criminalized. The photographer is not criminalized. And the rapper shouldn’t be criminalized.
Sepper: Coming back to the letter, how much weight do you think having such big celebrity support has with the legislature and the governor?
Spiro: I always tell folks, if you’re famous, if you’re a celebrity, if you have a powerful voice that people listen to, you might as well use that for good. That’s what is happening here. When people with power speak truth to bad power, then people take notice, the media takes notice, folks like you take notice, people are talking about it. It becomes part of discourse. And we hope that it moves the country forward. And that it’s progress, not just on this bill, but on bills that are passed in other states, copying this bill and for the system as a whole.
Sepper: You’ve had a really interesting career. You started out at the CIA for a year. And then you go to the District Attorney’s office and then you join Ben Brafman’s firm, the big deal defense attorney to the stars. And now you’re at this big law firm, Quinn Emanuel. And you have a whole roster of clients that are huge names like Jay-Z, Mick Jagger, Naomi Osaka, Elon Musk, Robert Craft, and many others. How is the litigation strategy different when your client is a star?
Spiro: You’re taking me through, boy, you’re talking about young fellowship all the way up through and things change and circumstances change, but if you’re litigating in the public light, things change, people take on personas and their public image takes on a persona, the media and the public views them a certain way. And you have to try to humanize and make sense of why they do the things they do. They’re people also and there are a variety of complicating factors. It’s also the case that it creates complicated motivations in everybody. So it’s not just that they themselves need to be interpreted and explained for all, but the way the media looks at them, the way the prosecutor looks at them, the way a plaintiff’s lawyer sees them as a possible target for financial reasons and fame, it’s a multifaceted complication that comes with fame and that’s part of what you have to deal with.
Sepper: You’ve done over 50 trials, you teach trial advocacy at Harvard Law School. What would you say is one of the most important skills to master for a litigator?
Spiro: The world is not black and white. The world is gray. And so if you can learn how to understand the gray in every fact pattern and how to explain that, and you understand that things are not as they always appear and that humans are psychological beings and that things are complicated and you shouldn’t just accept what you’re being told. You start seeing the world and questioning things in a better, more productive way. You can explain and convince a room of people that your way of looking at things is the right one.