A recent Twitter post from Drakeo the Ruler, who has been jailed since March 2018 on a range of charges; the prosecution’s case depends heavily on Drakeo’s rap lyrics.
The police killings of George Floyd, Breanna Taylor, and others, and continued police brutality against the Black community and people of color have deeply affected all of us in the Intellectual Property, Arts, and Technology Clinic. The IPAT Clinic has always made it a priority to take on projects that promote racial justice and strengthen civil rights and civil liberties in the digital age. But we must do more. We are now engaged in a comprehensive effort to rethink our work, and ask how we can center anti-racism in everything we do. How can we better examine the ways intellectual property law, media and First Amendment law, and other doctrines perpetuate racism and inequality? How can we use our expertise in these areas to make a positive contribution to the fight against racism and anti-Blackness? How can the IPAT Clinic faculty ensure that the clinic experience is welcoming to students of color, that it recognizes and honors their perspectives and needs, and that our processes do not inadvertently replicate bias and prejudice?
As we engage in this urgent process, we are finalizing an IPAT Clinic project that is uniquely relevant to the struggle for racial justice. Since 2018, we have been working with Professor Charis Kubrin on the first-ever practice guide for defense attorneys who are fighting Rap on Trial, the deeply problematic use of rap lyrics in criminal trials. For decades, state and federal prosecutors have been attempting to introduce rap lyrics and videos as evidence in criminal proceedings—in order to “prove” various statements, show circumstantial proof of material matters, criminalize the very act of writing rap lyrics, and tie defendants to a gang. These efforts are often, but not always, successful. The practice is deeply problematic because it leverages misconceptions about rap and invokes deep-seated prejudices in order to circumvent bedrock evidentiary rules against unfairly prejudicial character evidence. The practice also criminalizes free speech and artistic expression. And the process is endemic to the criminal justice system for Black defendants and other people of color. Recent well-publicized cases include Darrell Caldwell, otherwise known as Drakeo the Ruler, who is currently in detention in LA on charges of criminal gang conspiracy and shooting from a motor vehicle after he was found not guilty of murder last July; and Brandon Duncan, who records under the name Tiny Doo, and in 2015 was cleared after being charged with similar crimes in San Diego.
We first conceived of this practice guide when talking with Professor Kubrin about the inquiries she regularly gets from defense lawyers around the country who are faced with pretrial motions to admit rap lyrics and videos. Our guide is designed to help attorneys in this position. We review the relevant legal doctrines and associated case law and provide checklists and other tools that will help attorneys quickly respond to Rap on Trial motions. Among other areas, we discuss evidentiary rules prohibiting character evidence and evidence of prior bad acts, and how to make a First Amendment challenge. We have also created a Brief Bank that collects briefs and trial materials from successful challenges to Rap on Trial motions, and a comprehensive Case Compendium that provides abstracts of over 200 reported Rap on Trial cases.
Perhaps most important, we have worked with experts like Professor Kubrin and attorneys like Manuel Nieto and John Hamasaki who have litigated Rap on Trial cases to develop a series of recommendations on how to put rap music into context for juries and judges who might not be familiar with this music genre. Whether in opposing a motion to introduce rap lyrics or videos, or in addressing rap after such evidence has been admitted, at some point defense counsel must educate both judge and jury on rap’s unique origins and artistic techniques. These strategies include:
- Explaining rap culture and the concept of rap “personas”
- Identifying rap conventions, and showing that specific lyrics at issue in the case track with well-known tropes or lyrical references across rap music (such as unique terminology to describe guns).
- Making use of judicial opinions that have recognized rap’s unique history and traditions and have held that rap lyrics should not be taken literally
- Presenting findings from the social science research that show the link between rap lyrics and bias; and
- Working with local experts who are knowledgeable about either hip-hop or the specific cultural attitude towards hip-hop in the defendant’s area.
“As the use of rap lyrics by prosecutors has become increasingly frequent,” said Hamasaki, “so has the need for a resource to help guide defense attorneys litigating these cases. I’m grateful for the opportunity to collaborate with the UCI IPAT Clinic in developing a practice manual for defense attorneys dealing with Rap on Trial issues.”
UCI Law student Anthony Perez is a contributor to the practice guide. “Working on the ROT manual this year has been a rewarding and eye-opening experience,” he remarked. “Before I began working on this project, I had no idea of the extent to which rap artists’ liberty is at stake simply by virtue of putting their rhymes on paper. Beyond the law, there exists a large and ever-growing body of research that shows that people are highly biased against the rap genre in general and rap artists in particular. While not surprising, these realities are disturbing, and a defense attorney must bring these findings to light when in front of a jury. My greatest hope is that this practice guide will help even one rap artist triumph in a fight to keep their own art from being used against them.” Recent graduate and IPAT alumnus Ikechukwu Nnadi is also hopeful that the guide can make an impact. “The Rap on Trial Practice Guide is a crucial tool that should help level the playing field in rap on trial cases. Defense attorneys can use the strategies contained within this guide to successfully defend against prosecutorial efforts to imprison defendants with their own art.”
“It has been very rewarding to work with experts at the IPAT clinic on this practice guide,” said Professor Kubrin, “which I hope will provide attorneys with much needed guidance on cases where rap lyrics or videos are introduced as evidence. The team’s comprehensive and careful approach means the guide will constitute an incredible resource—something that, unfortunately, is necessary given the growing number of rap on trial cases throughout the country.”
The Rap on Trial Practice Guide and its companion Brief Bank and Case Compendium will be made freely available to the public this fall.