Rap On Trial: A Legal Guide is a reference work to help attorneys defend against the use of rap lyrics in criminal proceedings. This manual, co-authored by Jack Lerner and Charis Kubrin with members of the UCI Intellectual Property, Arts, and Technology Clinic, is a comprehensive resource for attorneys dealing with rap lyrics introduced at any stage of criminal proceedings — from initial discovery to trial to sentencing. The guide includes explanations of common rap conventions that may be unfamiliar to lawyers and jurors, an overview of empirical research on rap and bias, legal grounds for evidentiary and First Amendment challenges to admitting lyrics at trial, and suggestions for jury selection.
As a companion to the Legal Guide, we have created this Case Compendium that provides abstracts and data on key Rap on Trial cases helpful to defendants. We have also created a Brief Bank that collects briefs and trial materials from successful challenges to Rap on Trial motions. Go here to view the Brief Bank.
The Legal Guide, Brief Bank, and this Case Compendium will be periodically updated as case law develops and new strategies emerge. The latest versions of these resources, along with additional information, are available at https://endrapontrial.org and here on the IPAT Clinic website.
Rap on Trial Case Compendium
| Year | Case Name | Court | Doctrine(s) discussed | Notes | Opinion |
|---|---|---|---|---|---|
| 2024 | Baker v. State, No. S23A0860, 2024 WL 923100 (Ga. Mar. 5, 2024) | Georgia Supreme Court | OCGA § 24-4-403 (Georgia Evidence Rule 403) Unfair prejudice, probativeness, propensity | Detailed discussion of the probative value and propensity for unfair prejudice in admitting a rap music video showing the defendant brandishing a firearm, especially when said video did little more than to argue the defendant had a violent character. The Georgia Supreme Court reversed the murder conviction against the defendant, holding the probative value of a rap music video showing the defendant brandishing a firearm was substantially outweighed by its danger for unfair prejudice under Georgia Evidence Rule 403, and that the State failed to meet its burden in showing the admission was not harmless. The State argued that the 30 second clip showing the defendant brandishing a handgun was relevant to identify the defendant as a person present at the scene, to “complete the story” of the crime, to establish that the defendant had a motive for the alleged murder, and to show the defendant had access to a firearm at the time of the murder. The Court found that the music video had minimal, if any, probative value in proving the State’s argument and that the trial court failed to recognize the danger of unfair prejudice in admitting the music video. As a result of the prosecutions reliance of the music video during trial, it could not be said the improper admission of the music video did not contribute to the verdict. “[T]he rap music video was highly prejudicial. It allowed the State to introduce impermissible propensity evidence by portraying Baker as a threatening gunman, and the prosecutor severely exacerbated the video's prejudicial impact by emphasizing that it showed Baker's predisposition to gun violence. Although the video excerpt was relatively brief—it was only about 30-seconds long (as the trial court pointed out in its order denying Baker's motion for new trial)—the prosecutor made it a focal point of the trial. She played the video for the jury three times at three different points during the trial; questioned three witnesses about the video (specifically highlighting that the video advocated gun violence); and then emphasized during her closing argument that Baker and other rap artists ‘promote[d]’ gun violence, because ‘[t]hat's all they know,’ a pointed argument that reinforced to the jury Baker's alleged violent character.” | Download Opinion |
| 2024 | United States v. Jordan, No. 1:20-cr-00305-LDH (E.D.N.Y. Jan. 30, 2024) | New York, United States District Court E.D.N.Y. | F.R.E. 403 Unfair Prejudice, Probativeness F.R.E. 401 Relevance | Detailed discussion of rap’s history and context, cautions courts to be wary of overly permissive rules regarding rap lyrics, questions probative value of rap lyrics given prevalent theme in the genre | Download Opinion |
| 2023 | People v. Venable, 88 Cal.App.5th 445 (Cal. Ct. App. 2023) (certified for review) | California, Court of Appeal, 4th Dist. Div. 2 | Cal. Evid. Code §352.2 | NB: THIS CASE HAS BEEN CERTIFIED FOR REVIEW BY THE CALIFORNIA SUPREME COURT. The admission of a rap video without new safeguards required by Cal. Evid. Code §352.2 was prejudicial to defendant. "There was 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 [defendant] to the specific crime. The remaining evidence of Venable's involvement was not strong...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 §352.2 to apply to nonfinal cases," the court reversed defendant's conviction and remanded for retrial. | Download Opinion |
| 2022 | People v. Bryant, No. 05-152003-0 (Cal. Sup. Ct. Oct. 3, 2022) | California, Superior Court of the State of California, County of Contra Costa | Cal Penal Code §745; Racial Justice Act (CA RJA); implicit bias | Defendants Gary Bryant and Diallo Jackson filed a motion for new trial pursuant to Penal Code § 745 of the Racial Justice Act, asserting that the use of Mr. Bryant's rap lyrics as criminal evidence was racially discriminatory because it improperly introduced racially discriminatory language at trial. Based on expert testimony, the court held that defendants met their burden of showing by preponderance of evidence that the prosecution violated the Racial Justice Act and the motion for a new trial was granted pursuant to § 745(e)(1)(A). The court held the use of the rap lyrics and rap video were relevant for proving defendants’ gang involvement. Yet, the court found the use of rap lyrics and videos more likely than not triggered the jury's implicit bias against African American men in violation of § 745(a)(2). “For the purpose of the § 745(a)(2) analysis, where there is gang evidence that was relevant to proving the defendants’ gang involvement, and there is also evidence showing it is more likely than not that the use of rap lyrics and videos primed the jury for implicit racial bias based on stereotypes of African American men as violent, then the court remains compelled under § 745(a)(2) to ensure that defendant received a fundamentally fair trial.” According to expert Charis Kubrin's study, exposing the jury to rap lyrics, which contained violent imagery and were written by African American men, created the risk that it would trigger the jury's implicit bias against rap music, which implicitly is linked to African American artists and results in negative character evaluations of such artists. Since the defendants were identified as the artists of the rap lyrics introduced at trial, there was a substantial risk that the jury would engage in implicit bias against the defendants and evaluate them as less intelligent, more likely to engage in crime, and more likely to be part of a gang. In light of this testimony, the court held it was more likely than not that the prosecution's use of defendants’ rap lyrics constituted a violation of § 745(a)(2). Contains an excellent discussion of implicit bias. | Download Opinion |
| 2021 | United States v. Stephenson, 550 F. Supp. 3d 1246 (M.D. Fla. 2021) | Florida, United States District Court M.D. Fla. | F.R.E. 401 Relevance, F.R.E. 403 Unfair Prejudice, F.R.E. 404 Character Evidence, Rule 801 Hearsay | Defendant was indicted on drug and firearm charges. Defendant moved in limine to exclude three publicly available music videos in which defendant purportedly rapped about drug activities, as well as transcripts of those videos' lyrics. The court held that defendant's statements in videos qualified as non-hearsay admissions by a party opponent, but F.R.E. 801(d)(2)(A) does not allow for admission of portions of videos that contain statements not made by Defendant. The court also held that videos published 10-18 months prior to arrest were too remote in time to be probative; and risk of prejudice outweighed probative value of videos in light of the content of the videos (which were purported to depict drug activities and incorporate profane, offensive, and racially insensitive words and violent and sexual imagery along with gang references, and images of cash and guns). "These lyrics and depictions of Defendant create a significant risk that the jury will view him as a violent drug dealer and gang member and find him guilty of the charged offenses for improper reasons. The evidence that is directly relevant to this case pales in comparison to the YouTube videos the United States seeks to present. The YouTube videos will overshadow the acts giving rise to the charges here." The court also reasoned that the need for expert testimony and arguing over the videos "presents a great risk of jurors having difficulty separating the issues and according the limited weight to the videos. In essence, the YouTube videos will become a feature of the trial. The likely curative effect of any limiting instruction will be minimal at best." | Download Opinion |
| 2021 | Bey-Cousin v. Powell, No. 2:19-cv-01906-JDW, 2021 WL 5197241 (E.D. Pa. 2021) | Pennsylvania, United States District Court E.D. Pa. | First Amendment, F.R.E. 102 relevance, F.R.E. 403 Unfair Prejudice | The court excluded rap lyrics, song titles, and visual depictions related to those lyrics and songs from trial. The court established a presumption that “artistic expression is fictional not factual.” Thus, the probative value of the evidence was low because the expression was presumed to be fictional and there was no evidence to rebut such presumption. The court’s reasoning suggests that additional facts indicating an artist actually experienced the content of his or her lyrics must be shown. The court rejected the argument that the jury, rather than the judge, should determine whether the lyrics were sufficiently factual, rather than fictionalized, to be more probative than prejudicial. The court reasoned that the trial would become about “the jury . . . decid[ing] where the line is between inspiration and narration” rather than ascertaining the truth. The undue delay and collateral consequences from admitting the evidence would have substantially outweighed its probative value under Federal Rule of Evidence 403. | Download Opinion |
| 2019 | United States v. Johnson, 469 F. Supp. 3d 193 (S.D.N.Y. 2019) | New York, United States District Court, S.D. | F.R.E. 403 Unfair Prejudice | The government filed a motion in limine to introduce lyrics from a rap video as evidence connecting defendants with gang affiliation, co-conspiracy, or as adoptive admissions. Motion denied. The court held that the Government did not demonstrate that the rap lyrics contained any direct references to gang activity and were thus not admissible. Additionally, the court found that the references to violence and allusions to police misconduct, and the use of profanity present a risk of unfair prejudice to the defendants. The rap videos were excluded as unfairly prejudicial under FRE 403. "While the lyrics appear to have little to no probative value, the references to violence and possible allusions to police misconduct, and the use of profanity, present a risk of unfair prejudice to the Defendants." The court also cited U.S. v. Herron, No. 10 Cr. 0615 (NGG), 2014 WL 1871909, which noted that circuit courts "have admonished trial judges against admitting rap videos or lyrics with merely a tenuous connection to the defendant or issues in the case." | Download Opinion |
| 2019 | People v. Coneal, 254 Cal. Rptr. 3d 653 (2019) | California, Court of Appeal, First District, Division 5 | Cal. Evid. Code 352 Unfair Prejudice | Defendant appealed his first-degree murder conviction challenging the admission of rap videos featuring the defendant and members of defendant’s gang. The California Court of Appeal, First District held that the admission of rap videos was an abuse of discretion under Cal. Evid. Code § 352, but the error was harmless. Affirmed. Court held that five rap videos featuring defendant or members of his gang had minimal probative value that was outweighed by their highly prejudicial nature. The court reasoned that the videos lacked probative value because the videos were cumulative of other, less prejudicial evidence, or their probative value depended on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. Thus, the admission was an abuse of discretion by the lower court. However, considering the substantial other evidence against the defendant, the error was ultimately harmless. "Absent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal." "The probative value of the videos and lyrics was minimal in light of the substantial amount of other evidence and the absence of a persuasive basis to construe specific lyrics literally. Weighing this minimal probative value against the significant prejudicial effect, we conclude the admission of the rap videos was an abuse of discretion under Evidence Code section 352." | Download Opinion |
| 2019 | People v. Taylor, No. D074197, 2019 WL 926601 (Cal. Ct. App. Feb. 26, 2019), review denied (June 12, 2019) | California, Court of Appeal, Fourth District, Division 1 | Cal. Evid. Code 352 Unfair Prejudice | Defendant was convicted on gang charges and other crimes. California Court of Appeal, Fourth District held that the rap video should not have been admitted as there was no evidence that Taylor was involved in the creation, production or distribution of the video in any way other than appearing in the background for a few seconds. The video had minimal relevance, and the court believed it was cumulative. However, the court held that the error was harmless given the strength of th evidence of guilt. "We conclude the relevance of the video was minimal due to Taylor's minimal participation and the lack of P-Loc identification. To the extent it had any tendency to prove Taylor's connection to P-Loc and to drug sales, it was cumulative. The genre in general, and this video in particular, are inflammatory and offensive to some lay people. Taylor's participation, though minimal, could evoke an emotional bias against him." | Download Opinion |
| 2019 | United States v. Herron, No. 10-CR-0615 NGG, 2014 WL 1871909, at *5 (E.D.N.Y. May 8, 2014), aff'd, 762 F. App'x 25 (2d Cir. 2019) | New York, United States District Court, E.D. | F.R.E. 403 Unfair Prejudice, 401 Relevance, First Amendment. | U.S. District Court denied both defendant's motion in limine to preclude rap music and video, and the government's motion in limine to preclude the testimony of Defendant's proffered expert. The court rejected defendant's First Amendment argument, noting that the Supreme Court has recognized that the First Amendment "does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent” (citing Wisconsin v. Mitchell). The court also rejected a relevance objection, observing that numerous courts have held that rap lyrics and videos are relevant evidence based on the circumstances in the the case, but also that circuit courts have admonished trial judges against admitting rap videos or lyrics with merely a tenuous connection to the defendant or issues in the case" (citing Gamory). The court also rejected defendant's Rule 403 motion, but limited the way rap evidence would be admitted. However, the court carefully limited how rap evidence would make its way into trial. Instructed the government to submit the specific excerpt it wished to use, the purpose for which the evidence was being offered, and the speakers in the clip. The court plannned to exclude statements of non-co-conspirators as hearsay unless a relevant exception could be articulated, and to exclude as cumulative or redundant rap-related evidence that went to fact that had been firmly established. "To the extent that the rap-related videos are admitted into evidence, on application by the objecting party, the court will provide a limiting instruction to the jury that the evidence is not to be considered for any improper purpose" under F.R.E. 105. | Download Opinion |
| 2017 | United States v. Bey, No. CR 16-290, 2017 WL 1547006, 2017 U.S. Dist. LEXIS 65644 (E.D. Pa. Apr. 28, 2017) | Pennsylvania, E.D. Pa. USDC | F.R.E. 404(b)(2) Crimes or Other Acts (knowledge, intent, absence of mistake), 801(d)(2)(A) hearsay (party opponent/admission), 403 | Firearms case. The government moved to admit rap lyrics under FRE 404(b)(2) to prove knowledge, intent, absence of mistake, and as hearsay exemption under FRE 801(d)(2)(A). Motion denied. The court held: (1) Knowledge and absence of mistake not at issue because government charged actual possession. (2) Intent not at issue because felon in possession of a firearm is general intent crime. (3) Even if the rap lyrics qualified as "party opponent"/"admission" exemption from hearsay prohibition, it was still inadmissible because it didn't pass muster under relevance rules. And even if otherwise admissible, FRE 403 would bar admission. Probativeness substantially outweighed by unfair prejudice, undated videos reduced probativeness, cumulative because police officer testimony to the same effect. "Viewed in their broader artistic context, the rap music evidence does not have a high probative value. Rap lyrics are not necessarily autobiographical statements; rather, rap music is a well-recognized musical genre that often utilizes exaggeration, metaphor, and braggadocio for the purpose of artistic expression. Because rap lyrics may falsely or inaccurately depict real-life events, they should not necessarily be understood as autobiographical statements....Admitting them into evidence presents a serious risk of inflaming the jurors and influencing them to convict Bey on impermissible grounds....The characteristics of rap as an art form are clearly present in Bey's lyrics. Bey assumes an alter ego when he raps; the songs at issue were recorded under...aliases....Cherry-picking the lyrics that reference firearms and entering them into evidence would take them out of context." | Download Opinion |
| 2017 | People v. Melendez, 384 P.3d 1202 (Cal. 2016), cert. denied, 138 S. Ct. 357 (2017) | California, Supreme Court | Cal. Evid. Code 352 Unfair Prejudice | Defendant appealed his capital murder conviction and death sentence. The appellant contended that the lower court erred, and the cumulative effect of the errors undermined his trial’s fairness and judgment. Judgment affirmed. At trial, the court excluded a paper found in a codefendant's jail cell containing a rap song he had written, which the defendant argued was exculpatory. The lower court found that the lyrics were unfairly prejudicial and not probative, or directly relevant to the case. The Court held that there was no error in excluding the piece of paper containing handwriting found in the jail cell. The Court reasoned that the paper containing the rap song lacked foundation, given that there was no evidence that the handwriting was the codefendant's or that the words referred to the current case or to actual events. "No evidence was presented at trial—such as handwriting comparison testimony—that he wrote it. Despite the initials, it might not refer to [the codefendant] at all....Moreover, it appears the words were merely rap lyrics. No reason appears to assume they relate actual events....Additionally, even if we assume the document had some marginal relevance, the court additionally acted within its discretion when it found that its prejudicial effect outweighed any probative value.” | Download Opinion |
| 2017 | United States v. Williams, No. 3:13-CR-00764-WHO-1, 2017 WL 4310712 (N.D. Cal. Sept. 28, 2017) | California, United States District Court, N.D. | F.R.E. 403 Unfair Prejudice; F.R.E. 801 Hearsay | The court granted in part and denied without prejudice in part the government's motion in limine to admit rap lyrics in a RICO/VICAR prosecution. As to one defendant, the court held that rap lyrics were not unfairly prejudicial relative to their value against that defendant, who actually rapped the lyrics, but the lyrics were only admissible against him. The court did not allow the lyrics against the others, holding that they were hearsay and even if not hearsay, likely violated F.R.E. 403. "To start, I am skeptical about the probative value of the songs. They are a form of artistic expression, and as with any artistic expression, it is difficult to distinguish between reality and fantasy....I question whether a limiting instruction would keep the jurors from considering the evidence for an improper purpose. The inability to differentiate between fact and fiction is intensified here where the government plans to explain ambiguous lyricsthrough the interpretations of cooperators and/or informants, not the individuals that wrote the songs (who, to repeat, are not defendants here)....I also fear that the danger of unfair prejudice is substantial. As the defendants point out, the videos depict “images of young African-American men, guns, and drugs atop musical lyrics that denigrate other African-Americans, women, and cooperating witnesses.” This is a sanitized description of some images that are highly inflammatory. It is undeniable that certain scenes may arouse an emotional response, evoke a sense of horror, or appeal to an instinct to punish. Defendants highlight an article that offers empirical evidence that jurors presented with a defendants' violent rap lyrics view the defendant as more likely to have committed murder" (citing Andrea Dennis). "Unfair prejudice is not the only danger at play here. The videos and songs could mislead the jury, may cause undue delay stemming from defense experts' attempts to “educate the jury about gangsta rap,” which could waste precious time considering the prospective length of this trial, and might needlessly present cumulative evidence since the government presumably has other means of proving the associations presented in these videos." | Download Opinion |
| 2017 | United States v. Johnson, 280 F. Supp. 3d 772 (D. Md. 2017) | Maryland, United States District Court, D. | F.R.E. 801 Hearsay | Court denied Defendant's motion in limine to suppress rap video and lyrics but instructed the Government to limit video admission to portions of the video in which Defendant was the primary speaker and lyricist. Government filed motion in limine to admit entire video by trying to show that Defendant adopted or authored entire video. The court held there was insufficient evidence proffered by the government to admit the statement as an adoptive statement under F.R.E. 801(d)(2)(B). Court reasoned that people post a myriad of things to their social media accounts all the time, a reposting was not enough to demonstrate that the defendant "manifested that it adopted or believed it (the video) to be true." | Download Opinion |
| 2017 | DeHart v. State, 87 N.E.3d 54 (Ind. Ct. App. 2017) | Indiana, Court of Appeals | Ind. E.R. 403 Unfair Prejudice | Defendant appealed murder conviction arguing abuse of discretion for admission of rap lyrics, and abuse of discretion in admission of evidence about the use of handgun during a rap performance. The Court of Appeals of Indiana held that the trial court had abused its discretion in admitting the rap evidence, but it was harmless error. Rap lyrics for three songs were included at trial despite objections due to relevance and impermissibility. The court held that the song was recorded three years before the events at issue in the prosecution, did not reference the victim, nor did it reference the particular facts of the crime. The court concluded that "any additional probative value provided by the rap song evidence was minimal in light of other evidence already in the case...and the additional potential for unfair prejudice was significant in light of other evidence already in the case, especially because of the songs' profanity-laden glorification of violence, drugs, and sex. Based on the foregoing, we conclude that the minimal probative value of the rap song evidence was substantially outweighed by a danger of unfair prejudice and that the trial court abused its discretion in admitting that evidence. | Download Opinion |
| 2016 | United States v. Sneed, No. 3:14 CR 00159, 2016 WL 4191683, 2016 U.S. Dist. LEXIS 104905 (M.D. Tenn. Aug. 9, 2016) | Tennessee, M.D. Tenn. USDC | F.R.E. 403 Probative, 403 Unfair Prejudice, 404(b) Character Evidence | The court held that: (1) Rap video was irrelevant to conspiracy becasue there was no reference to any gang or specific group of individuals working in concert to sell drugs. Co-defendant was not in the video, and no one else in the video was identified as an alleged co-conspirator. (2) Rap video was irrelevant to possession and distribution because "rapping about selling drugs does not make it more likely that Defendant Sneed did, in fact, sell drugs" (citing Skinner). (3) Rap video was not evidence of knowledge or intent under Fed. R. Evid. 404(b), but was inadmissible propensity evidence. (4) Even if video were relevant, any such relevance would nevertheless be outweighed by the danger of unfair prejudice. “There is no reference to a specific gang or group of individuals working in concert to sell those drugs. . . . [T]he video here does not make the likelihood of a conspiracy any more or less probable, and thus, it is irrelevant for this purpose under Rule 401. . . . Here, the Government intends to offer an artistic rap as evidence of Defendant's involvement in criminal activity. Based on the minimal (if any) probative value of the video, we find that the risk of jury confusion and unfair prejudice substantially outweighs any slight probative value. We may not permit a jury to infer that simply because Defendant rapped about selling drugs that he is guilty of selling drugs.” | Download Opinion |
| 2016 | State v. Sharpe, No. M201500927CCAR3CD, 2016 WL 6472628 (Tenn. Ct. Crim. App. Nov. 2, 2016) | Tennnessee Court of Criminal Appeals | 403 Unfair Prejudice | Tennnessee Court of Criminal Appeals ordered a new trial due to prosecutorial misconduct because the prosecutor quoted inflammatory rap lyrics which had been excluded during pretrial motions. "In the State's rebuttal argument, the prosecutor recited the lyrics from a rap song from Mr. Rucker's social media page, which used a slang word for a racial epithet, and asserted that the song explained why Defendant killed the victim. . . . [T]he record clearly establishes what occurred in the trial court, and the error breached a clear and unequivocal rule of law, as is made plain in the opinion in Rucker. It is misconduct for a prosecutor to 'use arguments calculated to inflame the passions or prejudices of the jury.'" (Companion case to State v. Rucker) | Download Opinion |
| 2016 | Jordan v. State, 212 So. 3d 817 (Miss. 2016) | Mississippi Supreme Court | Miss. R.E. 403 Unfair Prejudice, 402 Relevance | Petitioner appealed murder conviction and felon in possession conviction on the basis that the trial court improperly admitted into evidence a rap video under Rules 404(b) and 403. The Mississippi Supreme Court reviewed the appellate court's affirmance of the conviction and split 4-4, which by default affirmed the conviction. Three judges dissented on the basis that the rap video introduced had not been properly authenticated, and the fact that the trial court did not even view the rap video before admitting it. Additionally, under a Rule 403 analysis the Defendant's short presence in the video lacked probative value and relevance and was unfairly prejudicial. The dissenters argued that the court abused its discretion by allowing the video into evidence. The dissent wrote, "The probative value of Jordan lip-syncing to lyrics as an extra on thirty seconds of a rap video that has no shown connection to the witnesses in this case is slight; indeed, the assertion that any probative value exists at all is tenuous. On the other hand, the danger of unfair prejudice from the introduction of the rap video is high. . . . The State arguably fails to prove even how the rap video is relevant to Jordan's case. Given the dearth of connections of the video to [the individuals primarily featured in the video] and Jordan's very slight and somewhat innocuous participation in the video, it is difficult to ascertain how the video is even relevant." The dissent also noted that "Violence and retribution are spectacularly common themes in rap music," and "[R]ap music is especially vulnerable to prosecutorial misuse because jurors often hold it in disregard or are unfamiliar with the genre's conventions." Ed. note: Despite a strong dissent, which cited to scholars such as Charis Kubrin and Andrea Dennis, this is a good example of how prosecution-friendly some Rap on Trial decisions can be. Here the trial court did not even review the video before admitting it—yet the conviction was still upheld by two higher courts. | Download Opinion |
| 2015 | State v. Rucker, No. M201400742CCAR3CD, 2015 WL 4126756 (Tenn. Ct. Crim. App. July 9, 2015) | Tennnessee Court of Criminal Appeals | 403 Unfair Prejudice | The court ordered a new trial due to prosecutorial misconduct because the prosecutor quoted inflammatory rap lyrics which the trial court had exluded during pretrial motions. "At trial, the State's rebuttal argument concluded with the prosecutor's discussing his fondness for rap music, including a partial recitation of the lyrics of "Duk Down," the rap song from the defendant's social media page, with the State asserting, apparently, that these words explained why the co-defendant killed the victim. . . . We conclude that the State committed prosecutorial misconduct by this portion of the rebuttal argument. . . . The racial epithets appear to have had no purpose other than to place the defendant in a bad light, appeal to racial prejudice, and, apparently, suggest the defendant occupied a position superior to that of the co-defendant, the defendant getting his "little man" to commit the killing" (Companion case to State v. Sharpe) | Download Opinion |
| 2015 | Commonwealth v. Thomas, No. 1121 EDA 2013, 2015 WL 6457805 (Pa. Super. Ct. Oct. 2, 2015) | Pennsylvania Superior Court | Pa.R.E 404(b) Crimes or Other Acts; 401 Relevance | Defendant appealed following a jury conviction of first-degree murder and possession of instruments of crime. The appellate court determined that the trial court erred in admitting hearsay testimony and rap lyrics into evidence under Pa.R.E. 404(b)(2). Judgment vacated and case remanded. The court determined that the trial court improperly admitted the rap lyric evidence because the key cases the Commonwealth relied upon did not involve the admission of rap lyrics as evidence of motive and were factually distinguishable. Here, the court found that the rap lyrics were only linked to the Defendant by inadmissible testimony. “The lyrics did not mention the victim by name and, standing alone, any connection between the lyrics and the crime is entirely speculative. In short, considered in the vacuum created by the exclusion of Hasan's testimony, the rap lyrics do not make the fact at issue—that Thomas killed Ashmore—more or less probable. Therefore, it necessarily follows that the admission of the rap lyrics into evidence was also erroneous.” | Download Opinion |
| 2015 | People v. Charles, No. B250051, 2015 Cal. App. Unpub. LEXIS 3029 , 2015 WL 1951887 (Cal. Ct. App. Apr. 30, 2015) (unpublished opinion) | California, Court of Appeal, Second Appellate District, Division One | Cal. Evid. Code 352 Unfair Prejudice, 350 Relevance | Defendant appealed conviction of criminal threats and aggravated assault with gang enhancement. The Court of Appeal, Second District reversed for ineffective assistance of counsel and prosecutorial misconduct. The trial court had admitted rap videos in which defendant had not appeared, nor was involved in production or publication. The prosecution had introduced "gang rap videos touting the gang's culture of violence and fear replete with racial epithets and misogynist comments. The only possible relevance of the videos was, as the prosecutor argued in rebuttal, to demonstrate the culture of the gang, or...to support the gang enhancement because they showed 'that B.O.P. was a criminal street gang"... The court held, "Whatever weak probative value the videos may have had was substantially diminished by their cumulative nature. More important, the videos created a high risk of undue prejudice... The videos were objectionable on relevance, hearsay, and section 352 grounds, at a minimum, yet defense counsel inexplicably failed to object to them on any ground." | Download Opinion |
| 2015 | United States v. Rivera, 13-CR-149, 2015 U.S. Dist. LEXIS 50979, 2015 WL 1757777 (E.D. N.Y. Apr. 7, 2015) | New York, United States District Court, E.D. | F.R.E. 403 Unfair Prejudice, 801 Hearsay, 401 402 Relevance | Defendant charged with drug, prostitution, sex trafficking, racketeering, and murder charges. Parties filed motion in limine to address admissibility of digital video evidence. The government sought to admit videos in which the defendants appeared, including music videos and a docudrama-style production. After conducting an analysis of F.R.E. 401, 402, 403, 801, the court included certain excerpts and excluded certain excerpts of the video. The court found some video excerpts highly relevant and probative, while also acknowledging that given "the fictionalized and dramatized nature of some of the videos, where individuals may be boasting about the excesses of a certain lifestyle that may glamorize criminal conduct, should be excluded because it is 'overly prejudicial' and is likely to confuse the jury." The court therefore "declined wholesale admission" of the videos and indicated that it would assess specific excerpts during trial. | Download Opinion |
| 2015 | People v. Foster, No. 13–002995–FC, 2015 Mich. App. LEXIS 1012, 2015 WL 2412383 (Mich. Ct. App. May 9, 2015) | Michigan, Court of Appeals | M.R.E. 403 Unfair Prejudice | Defendant appealed conviction of first-degree felony murder, armed robbery, firearms offenses, and other crimes arguing that the trial court erred in admitting a YouTube video as evidence. The Court of Appeals of Michigan agreed, but held that the error was harmless. The court ruled that a rap video in which defendant appeared should have been excluded. The video "made no discernible reference to committing armed robberies" and was created before the relevant robbery was executed or planned. Furthermore, the video was highly prejudicial because it was "rife with profanity, misogynistic lyrics, drug references, and general references to violent and offensive behavior." However, the appellate court declined to grant Foster relief due to the abundance of strong evidence of his guilt. | Download Opinion |
| 2014 | Scott v. McDonald, No. 2:13-CV-0022 KJM CKD, 2014 WL 2118470, 2014 U.S. Dist. LEXIS 69955 (E.D. Cal. May 21, 2014) | California, E.D. Cal USDC | F.R.E. 403 Unfair Prejudice, Cumulative, Gang Enhancement | California prisoner petitioned pro se for writ of habeas corpus under 28 U.S.C. § 2254 to challenge murder conviction. A Magistrate Judge held that the trial court had erred in admitting the lyrics, or at most should have admitted only narrow portions of lyrics relating to gang affiliation. The minimal probative value of lyrics to show gang affiliation was cumulative. Moreover, there was no redaction of the lyrics and the "probative value of those portions of the rap lyrics that did not refer to gang affiliation was substantially outweighed by the prejudicial effect." Nevertheless, error was held to be harmless and the writ was recommended to be denied. The Magistrate Judge quoted People v. Clark-Johnson (Ian Winston), 2011 WL 4458368 (Cal Ct. App. Sept. 27, 2011), in which the Court of Appeal, 3d District, held that that rap lyrics should not have been permitted under Cal. Evid. Code §352 (unfair prejudice), but error was harmless, affirming conviction: "More significantly, the writing, particularly the rap lyrics, contained more than mere references to gangs. . . . The prejudicial effect of these came not only from the depictions of violent gang life and guns, but also from language that most would consider racist and sexist. For the limited purpose for which these writings were admitted, the probative value of those portions of the rap lyrics that did not refer to gang affiliation was substantially outweighed by the prejudicial effect. (Evid. Code, § 352.) Thus the trial court erred in admitting the writings in full. The court should have permitted MacLafferty [a gang expert] to testify only that his opinion was based in part on writings found in Scott's cell that contained gang references, or, at minimum, should have ordered the writings redacted to narrow the focus to the portions what were probative of gang affiliations, thereby limiting there [sic] prejudicial effect." People v. Clark-Johnson is available at https://sites.uci.edu/ipat/files/2021/05/People-v-Clark-Johnson.pdf. | Download Opinion |
| 2014 | People v. McCutchen, No. A134003, 2014 WL 953785 (Cal. Ct. App. Mar. 11, 2014) | California, Court of Appeal, First Appellate District, Division One | Cal. Evid. Code 352 Unfair Prejudice | Defendant was convicted of murder, robbery, and other charges in trial court. The conviction was appealed to the California Court of Appeal, First District. The court questioned the authenticity of the evidence but concluded that any error was harmless. The court determined that statements by defendants including rap lyrics can show criminal intent. However, the court found it concerning "that the prosecution admitted the evidence without the prosecutor to prove defendant's authorship of, adoption of, or particular connection to the lyrics (aside from defendant having them in his bedroom)... We start down a wavering path when we begin to judge people's actions by the content of the literature they keep." Still, the court found the error harmless and affirmed. | Download Opinion |
| 2014 | State v. Leslie, No. 3-992/12-1335, 2014 Iowa App. LEXIS 71, 2014 WL 70259 (Iowa Ct. App. Jan. 9, 2014) | Iowa, Court of Appeals | Unfair prejudice | Defendant appealed lifetime sentence for first-degree murder. On appeal, he contended that he should have been permitted to introduce rap videos that supported his defense of justification, or self defense. The Court of Appeals of Iowa held that the trial court did not abuse its discretion in deciding to exclude rap videos. "The rap videos are a form of artistic expression....[T]here is certainly no evidence that everything [the victim] mentioned in the rap videos reflected his personal life. The rap songs are of very limited probative value to show [the victim's] real-life knowledge of guns and do not show whether he was likely to be carrying a gun. Additionally, the presentation of the rap videos would have been unduly prejudicial" (citing scholar Andrea Dennis). | Download Opinion |
| 2013 | United States v. Felix, 663 F. App'x 557 (9th Cir. 2016) | California, N.D. Cal. USDC | F.R.E. 404(b) Crimes or Other Acts | Pretrial order granted motion to exclude rap videos on the grounds that the rap lyrics are not admissible as party admissions, are not inextricably intertwined with charged crimes, are not evidence of other acts relevant to establish motive or knowledge, and danger of unfair prejudicial effect substantially outweighs any probative value. (Defendant’s motion to exclude the rap videos on First Amendment grounds was denied.) Defense counsel extensively briefed this motion, which is available in Rap on Trial Brief Bank at https://sites.uci.edu/ipat/files/2021/04/U.S.-v.-Felix-Defendants-Motion-in-Limine.pdf. | Download Opinion |
| 2013 | People v. Oduwole, 985 N.E.2d 316 (Il. App. Ct. 5th Dist. 2013) | Illinois, Appellate Court, Fifth District | 720 ILCS 5/8- 4(a), 29D-20(a) (West 2002) (terroristic threat) | Defendant was convicted of attempting to make a terrorist threat (among other things). Rap lyrics had been found in his car which had supported his conviction in lower court. The Illinois Court of Appeals found that there was insufficient evidence to support defendant's conviction and reversed. "[T]here is no evidence from which to find or infer that the defendant had identified a particular audience for his communications and no evidence from which to find or infer that he had targeted an individual or group in whom he intended to instill a fear that some threatened violence would occur. In the absence of sufficient evidence that the defendant had taken a substantial step toward making a terrorist threat, his writings, as abhorrent as they might be, amount to mere thoughts." | Download Opinion |
| 2012 | State v. Skinner, 218 N.J. 496, 95 A.3d 236 (N.J. 2014) | New Jersey Supreme Court | N.J.R.E. 404(b) Crimes or Other Acts, 403 Unfair Prejuduce | The New Jersey Supreme Court overturned the defendant’s attempted murder conviction, reasoning that the extensive reading of the defendant’s rap lyrics during trial unfairly prejudiced the jury. "Considering the content of these lyrics . . . there is no question that Evidence Rule 404(b)'s purpose was implicated. It is an understatement to say that . . . a jury could infer that the author of these rap lyrics, defendant, was a bad person who not only believed in addressing people who cross him by killing them but also had done that in the past as he so vividly describes in his lyrics. . . . Thus, this was not a case in which circumstantial evidence of defendant's writings were critical to show his motive. Nor was such evidence important to show that defendant had the intent to kill Peterson. . . . Even if we were to conclude that the lyrics had some permissible probative value, given the volume of graphic, highly inflammatory and extremely prejudicial lyrics, we would conclude that the probative value was overwhelmingly outweighed by the risk of prejudice." | Download Opinion |
| 2012 | Commonwealth v. Gray, 463 Mass. 731, 978 N.E. 2d 543 (2012) | Massachusetts, Supreme Judicial Court | Mass. G. Ev. 403 Unfair Prejudice | Defendant appealed his first-degree murder conviction and firearms offenses. The Supreme Judicial Court of Massachusetts held that the lower court committed prejudicial error in admitting rap videos as evidence of defendant’s gang membership. Reversed and remanded; verdicts set aside. The prosecutor sought to admit a rap video featuring the defendant as evidence of gang affiliation; the trial judge allowed gang evidence to establish motive. The video description includes the language, "performers are wearing typical 'gangsta' clothes." The video was used to highlight the Defendant's allegiance to a gang, and motive to commit murder, though the individuals in the video did not wear the particular clothing of the gang in question. Furthermore, defendant was not the star of the video and did not write the song. “Balanced against the minimal probative value of the video, its prejudicial effect was overwhelming. Although the defendant is neither of the two featured rappers, lyrics such as 'forty-four by my side,' accompanied by images of stereotypical 'gangsta thugs,' some of whose faces are covered by bandanas, could not but have had a prejudicial impact on the jury.” The Court quoted scholar Andrea Dennis who has argued, "In contrast to such treatment of rap music, courts do not treat lyricists of other mainstream musical genres similarly, even those who live an outlaw lifestyle or promote an outlaw image. We do not likely believe that Johnny Cash shot a man simply to watch him die. With respect to reggae, we do not generally take to heart Bob Marley's proclamation: ‘I shot the sheriff, but I did not shoot the deputy....’” Teh court concluded, "We discern no reason why rap music lyrics, unlike any other musical form, should be singled out and viewed sui generis as literal statements of fact or intent." | Download Opinion |
| 2011 | United States v. Gamory, 635 F.3d 480 (11th Cir. 2011) | Eleventh Circuit, United States Court of Appeals | F.R.E 403 Unfair Prejudice, F.R.E. 401-402 Relevance | Defendant appealed his drug conspiracy conviction, arguing the lower court erred in admitting a rap music video produced by his music studio business. The court held that admitting the rap video as evidence for the jury was error under FRE 403, as it was heavily prejudicial. However, the court held it was harmless error given overwhelming evidence against the defendant. The defendant contended that the district court abused its discretion by admitting the rap video into evidence because the video was irrelevant, inadmissible hearsay, contrary to the confrontation clause, and unfairly prejudicial. The court held that admitting the rap video as evidence for the jury was error under FRE 403, as it was heavily prejudicial. The video was not clearly probative of guilt because the defendant was not featured in the video and there was no evidence he authored the lyrics, or that he adopted or shared the views and values reflected in it. However, given the overwhelming evidence against the defendant, the error was harmless. The defendant's drug trafficking was evidenced by first-hand co-conspirators' testimony, which was corroborated by surveillance and seizures of substantial amounts of cash and drug ledgers. Thus, the court affirmed the judgment. “The substance of the rap video was heavily prejudicial. The lyrics presented a substantial danger of unfair prejudice because they contained violence, profanity, sex, promiscuity, and misogyny and could reasonably be understood as promoting a violent and unlawful lifestyle. At the same time, the video was not clearly probative of Gamory's guilt. We cannot ignore the simple fact that Gamory was not in the video. Neither was there any evidence that Gamory authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by Gamory.” | Download Opinion |
| 2011 | Hannah v. State, 420 Md. 339, 23 A.3d 192 (2011) | Maryland, Supreme Court | Unfair prejudice, character/propensity evidence | Jury convicted petitioner of attempted murder. Conviction was affirmed in Court of Special Appeals. Court of Appeals of Maryland granted writ of certiorari to determine, in part, whether the district court should have permitted the prosecution to admit rap lyrics. Conviction reversed and remanded where defendant was unfairly prejudiced by admission of rap lyrics. The lyrics were introduced during cross-examination to challenge Defendant's claim that he did not own guns nor have an interest in guns. The rap lyrics were read in sequence during cross examination. Moreover, they were not offered to show knowledge or intent. Therefore, the court held, the only remaining purpose was to show "propensity for violence." Notably, the rap lyrics and associated drawings dealt with guns and violence, and were from two years before the charged offense and did not specifically relate to the charged offense ("inadmissible works of fiction"). The court found that the lyrics may had been admissible to prove that Defendant knew about guns, but the manner in which the lyrics were used in cross-examination became inadmissible. "[T]he prosecutor’s use of Petitioner’s writings was unfairly prejudicial. It had no tendency to prove anyissue other than the issue of whether Petitioner was a violent thug with a propensity to commit the crimes for which he was on trial." | Download Opinion |
| 2011 | Hilton v. Bell, No. 07-cv-14415, 2011 U.S. Dist. LEXIS 22883 (E.D. Mich. Mar. 8, 2011) | Michigan, United States District Court, E.D., Southern Division | M.R.E. 404 Character/Propensity | Pro se habeas petition to overturn conviction in Michigan state court criminal sexual conduct, armed robbery, assault, and other crimes. District Court held that rap lyrics should not have been admitted, but it was harmless error. The court denied the habeas petition. The court determined that the rap lyrics were inadmissable as substantive evidence of the defendant's state of mind or intent, but the admission was harmless error. The court quoted the Michigan Court of Appeal's opinion in the state proceedings, which observed that "the lyrics are not specific to the victims in this case or the charged crimes and were not purported to be probative of any specific disputed issue in this case, i.e., intent. The prosecutor argued that the lyrics were representative of defendant's 'state of mind' and 'what he's doing.' Absent some other specific basis for admission, which is not apparent, the lyrics were other acts evidence, properly considered under MRE 404(b). Admission under MRE 404(b) would require that, once a proper purpose was established for admission, the court weigh the probative value of the evidence against the danger of unfair prejudice, MRE 403, and if appropriate, give a cautionary instruction to the jury concerning the limited use of the lyrics. In this case, however, no such analysis was undertaken, and the court simply admitted the lyrics as substantive evidence." The court found that the lyrics were highly prejudicial as they described sexual and violent acts in crude terms with profanity, substantially outweighing any probative value, and therefore the trial court abused its discretion. However, the error was harmless. | Download Opinion |
| 2007 | Parker v. Commonwealth, 241 S.W.3d 805 (Ky. 2007) | Kentucky, Supreme Court | Authentication, Unfair Prejudice | Defendant was convicted of murder and other charges, and appealed denial of motion for retrial in light of use of inflammatory rap track by prosecution. The Kentucky Supreme Court reversed and remanded. The rap CD was played at opening statement for "adoptive admissions." Defendant moved for mistrial once CD containing rap lyrics suggesting defendant shot a woman was admitted into evidence. Rather than declare a mistrial, the trial court elected to instruct the jury disregard the CD. The Supreme Court of Kentucky held that evidentiary materials must be authenticated or their admissibality determined before their use, and therefore the trial court erred in not granting a mistrial. "By using unauthenticated materials in opening statement the Commonwealth unfairly exposed the jury to inflammatory information of such a nature that no admonition could reasonably be believed to cure it." | Download Opinion |
| 2005 | State v. Tolson, No. 0211007845, 2005 WL 147918, 2005 Del. Super. LEXIS 5 (Del. Super. Ct. Jan. 3, 2005) | Delaware Superior Court | Del. R. E. 404(b) Crimes or Other Acts (intent, identification), 403 | State moved to introduce rap lyrics under under Delaware Rule of Evidence 404(b) to show the defendant's intent or state of mind to sell drugs in his possession. Court held that location where lyrics were found may be used to show where defendant resides, but not to show intent or state of mind. The court found that the lyrics did not contain specific references to the acts the defendant is accused of. In evaluating admissibility under 404(b), the court evaluated various factors including DRE Rule 403. The court determined that limited probative value was significantly outweighed by prejudicial effect. "The lyrics..do not contain such specific references to the acts of Defendant [but rather] make a number of vague references to the Defendant selling crack cocaine and being a 'hustler.'...The few references in the lyrics to selling drugs are not specific enough to provide adequate evidence of intent or state of mind...Although the issue of intent to deliver is central in this case, the slight probative value of the lyrics is strongly outweighed by its potential prejudicial effect. Rap lyrics written by a defendant about selling drugs are not proof that the defendant dealt drugs on a certain occasion or at all. The lyrics would be highly prejudicial, however, because they contain numerous references to the Defendant selling drugs." | Download Opinion |
| 2005 | Brooks v. State, 903 So. 2d 691, 2005 Miss. LEXIS 191, No. 2001-CT-01826-SCT (Miss. 2005) | Mississippi, Supreme Court | Miss. R.E. 403 Unfair Prejudice, 404 Character/Propensity, 901 Authentication | The trial court convicted defendant of murder. The Mississippi Supreme Court held that that the trial court failed to consider whether the the probative value of the admitted evidence (rap lyrics, gang affiliation, tattoos), substantially outweighed the danger of unfair prejudice. The rule 403 analysis guides the court's determination that the tattoo and gang-related evidence would not have survived if the trial court had conducted the analysis. Rule 901 asserts the need for evidence authentication, suggesting that there was no prior foundation for introducing the use of the murder tool (fork) versus the described weapon in the rap lyrics (gun). | Download Opinion |
| 2004 | In re George T., 93 P.3d 1007 (Cal. 2004) | California, Supreme Court | Cal. Penal Code 422 (criminal threat) | Juvenile court made minor a ward of the court and ordered a 100-day commitment to juvenile hall for making a criminal threat. Minor appealed, challenging sufficiency of the evidence. Court of Appeal affirmed. The Supreme Court of California reversed. The "ambiguous" nature of the minor's poem, among other things, failed to establish that it was a criminal threat. "As a medium of expression, a poem is inherently ambiguous. In general, '[r]easonable persons understand musical lyrics and poetic conventions as the figurative expressions which they are,' which means they 'are not intended to be and should not be read literally on their face, nor judged by a standard of prose oratory.'" (quoting McCollum v. CBS, Inc., 202 Cal.App.3d 989, 1002 (1988)) | Download Opinion |
| 2001 | State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001) | South Carolina Supreme Court | S.C.R.E. 801(d)(2), 802 Hearsay Admission Against Interest, 403 Unfair Prejudice | Appeals court held in murder case that rap lyrics should have been excluded as too vague in context (i.e. containing "only general references glorifying violence") and overly prejudicial where they referenced leaving bodies in a pool of blood and leaving no prints. Nevertheless, this was deemed harmless error. "The trial judge admitted these lyrics as an admission against interest under Rule 801(d)(2), SCRE, based on the song's reference to leaving no prints and bodies left in a pool of blood. We find these references too vague in context to support the admission of this evidence. The minimal probative value of this document is far outweighed by its unfair prejudicial impact as evidence of appellant's bad character, i.e. his propensity for violence in general. . . . [T]hese lyrics contain only general references glorifying violence. Accordingly, the Ruckus song should have been excluded. " | Download Opinion |
| 1994 | People v. Goldsberry, 259 Ill. App. 3d 11, 630 N.E.2d 1113 (1994) | Illinois, Appellate Court, First District, Second Division. | Illinois case law (Probative vs Unfair Prejudice) | Defendant appealed second-degree murder conviction for shooting dead an alleged attacker. The appellate court held that the trial court erred in introducing into evidence the defendant’s notebooks containing gang insignia drawings and rap lyrics. Reversed and remanded for new trial without the admission of evidence of defendant's notebooks. The appellate court found that evidence of the defendant's gang membership disparaged him before the jury as the notebooks were not probative yet became the focus of the State's case against the defendant. “Although evidence of defendant's gang membership was highly conjectural and offered little probative value, it seriously disparaged him before the jury. The notebooks were not probative, yet became the linchpin of the State's case against defendant. The circuit court also erred in finding that the probative value of the notebooks outweighed their prejudicial effect, thereby denying defendant's motion in limine to exclude them.” | Download Opinion |
| 1987 | State v. Hanson, 731 P.2d 1140 (Wash. Ct. App. 1987) | Washington Court of Appeals | Wash. E.R. 404(a)(1) Character on Rebuttal, 403 | On appeal of a conviction for first degree assault, the appellate court held that fiction writings were not probative because there had been no showing of relevance to the crime, i.e., so similar to the crime that they would be relevant to the question of identity. Also highly prejudicial. "[W]e hold that his writings were irrelevant to rebut this character evidence. Without some further foundation, the defendant's writings were simply not probative. A writer of crime fiction, for example, can hardly be said to have displayed criminal propensities through works he or she has authored. . . . In this case, the State never indicated how the defendant's writings were logically relevant under ER 404(b). There was no attempt to show, for example, that Hanson wrote about an incident so similar to the crime charged that his writings wererelevant to the question of identity. Even if we were to assume that Hanson's writings were probative of his character, any probative value would beoverwhelmed by the danger of unfair prejudice." | Download Opinion |