Since we published the Rap on Trial Legal Guide in June 2021, the issue of rap lyrics in criminal trials has taken on national prominence. The Guide has been downloaded and shared widely, and attorneys have been using it successfully in court cases across the nation. Together with Professors Jack Lerner and Charis Kubrin, we have presented workshops to hundreds of attorneys around the country and talked with quite a few journalists reporting on this issue. And today we published the Rap on Trial Legal Guide version 1.1, reformatted and revised to greatly improve accessibility.
But the most exciting development of all is the interest legislators in Sacramento, Albany, and Washington, DC have taken in this issue.
In New York, the state Senate passed Senate Bill 7527, which adds a new section to the New York Evidence Code that prohibits prosecutors from using creative expression as criminal evidence against a person without clear and convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case.
In California, Assemblymember Jones-Sawyer has introduced Assembly Bill 2799, which establishes a presumption that the probative value of creative expression is minimal unless that expression meets specified conditions. Critically, the bill would require California courts to consider evidence about unique aspects of the genre of creative expression, as well as experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.
And in Washington, DC, Representatives Hank Johnson and Jamaal Bowman have introduced the Restoring Artistic Protection Act of 2022, which amends the Federal Rules of Evidence to establish a presumption that a defendant’s creative or artistic expression is not admissible as evidence in a criminal case. To overcome this presumption, prosecutors will have to demonstrate, by clear and convincing evidence, each of the following 4 points: the expression was meant to be taken literally or alternatively; the expression specifically refers to the alleged crime(s); the expression specifically refers to relevant fact s that are in dispute; and the expression is the only evidence available to demonstrate such facts.
For too long, prosecutors have been allowed to exploit rap lyrics to make an end-run around rules that are supposed to prevent character evidence, racial bias, and unfair prejudice. These bills will establish important protections for artists in all genres, and will help keep racial bias and prejudice out of the courtroom.
Today Clinic Director Jack Lerner will be talking with Representative Hank Johnson about the new federal bill on Twitter Spaces, along with Todd Dupler from the Grammy Foundation. Tune in at 2:00pm PDT / 5:00pm EDT!