The California Court of Appeal has ordered a new trial in a California case in which the prosecution relied heavily on a rap video in which the defendant appeared, and where the other evidence of the defendant’s guilt was very thin. In People v. Venable, the Court of Appeal, Fourth District held that under the new California Evidence Code §352.2 (i.e, AB 2799), the trial court probably should not have admitted the lyrics, and that the new Section 352.2 applied retroactively to non-final cases including cases on appeal.
Key holdings of the opinion are below:
The Legislature made this change to address the problem of introducing racial stereotypes and bias into criminal proceedings by allowing rap lyrics into evidence. “[A] substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence.” (Stats. 2022, ch 973, § 1.) As noted in the comments to the Assembly floor analysis, “rap lyrics and other creative expressions get used as ‘racialized character evidence: details or personal traits prosecutors use in insidious ways playing up racial stereotypes to imply guilt.’ The resulting message is that the defendant is that type of Black (or Brown) person …. ‘There’s always this bias that this young Black man, if they’re rapping, they must only be saying what’s autobiographical and true, because they can’t possibly be creative.”‘ (AB 2799, Assem. Floor Analysis at p. 3)….
To address the problem, the Legislature announced their intent “to provide a framework by which courts can ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.” (Stats. 2022, ch. 973, § 1.)
Before now-including at the time of Venable’ s trial-rap lyrics were generally deemed admissible so long as they were relevant and not so unduly prejudicial or confusing as to require exclusion under Evidence Code section 352. (E.g., People v. Zepeda (2008) 167 Cal.App.4th 25, 34-35.) The new section 352.2 now requires a trial judge to consider in addition that the probative value of such evidence is minimal absent certain markers of truth and that undue prejudice includes the possibility the evidence will inject racial bias and be used to improperly indicate the defendant’s propensity for violence. (Evid. Code, § 352.2, subd. (a).)
There’s no question the trial judge’s admission of the rap evidence in this case did not comply with the new requirements for admission of creative expression. There’s also substantial concern that admitting the evidence may have had the precise effects the Legislature sought to avoid. The rap video contains offensive language, including frequent uses of the n-word, depictions of guns and drugs, and references to violent gang activities. Most of the people who appear in the video are young Black men. Venable appeared in the video, but he didn’t say anything. Most of the lyrics had nothing to do with the shooting in this case, though one line could be interpreted as referring to the shooting. “Got word from a bird that they did that [racial slur] dead wrong. Slid up Medical and left that [racial slur]’s head gone.” Nothing in the song indicates the rapper or others in the video had personal knowledge or involvement in the shooting, only that they had heard about it. The prosecution nevertheless placed a lot of emphasis on the video. They played it twice during their case-in-chief and a third time during closing arguments. In closing, the prosecutor argued, “There he is [Venable]. There he is. They kill them on-scene. They kill. Slid up Medical, left that [racial slur]’s head gone. That’s our victim’s murder. There he is. There he is [Venable]. There he is.”…
We conclude the admission of the rap video without the new safeguards was prejudicial to Venable. There is substantial doubt whether the trial judge would have admitted the video evidence under the new standard, and it’s clear the prosecution used that evidence to tie Venable to the specific crime.
The remaining evidence of Venable’s involvement was not strong. The only witness who identified him as being involved was Doe, a police informant who gave a series of conflicting accounts of the incident and had testified Venable was being framed. Meanwhile, Venable’ s aunt provided an alibi for him, and Venable testified he was not involved in the shooting. The prosecution’s emphasis of the rap video at various points in the trial, including in closing arguments, likely had an effect on the outcome.
Under these circumstances, and with the understanding that the Legislature intended Evidence Code section 352.2 to apply to nonfinal cases, we reverse Venable’s conviction and remand for retrial.
The Court of Appeal’s opinion is notable for several reasons. First, the court correctly recognized that the Legislature intended for AB 2799 to be retroactive: all non-final cases, including appeals, must have complied with Section 352.2. Second, the court properly applied the framework the Legislature created and its directive that “the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.”
It is hugely important that the court acknowledged the severe risk that the use of a rap video would introduce racial bias and that such bias would materially harm the defendant’s right to a fair trial. As with so many “Rap on Trial” cases, in this trial the prosecution used a damaging rap video to prop up an exceedingly weak case. In so doing, the prosecution relied on racial stereotypes to introduce improper propensity evidence. The prosecutor’s declaration, “They kill them on-scene. They kill.” is a type of propensity evidence—and the basis for that statement was a rap video.
Perhaps most important, however, is that the court recognized what many courts have shamelessly ignored: the use of rap lyrics in court, and their treatment of them as literal, rests on a racist assumption—often unspoken in the courtroom—that young men of color who make rap are somehow less capable of imagination, creativity, or artistry than others. Quoting comments made in the legislative debate on AB 2799, the court explicitly acknowledged “this bias that this young Black man, if they’re rapping, they must only be saying what’s autobiographical and true, because they can’t possibly be creative.” This decision will be important not just for its precedent that Evidence Code Section 352.2 applies retroactively, but because it explicitly recognized and addressed this harmful premise.
Read the opinion here and in our Rap on Trial Case Compendium.