‘Rap on Trial’: Why Lyrics Should Be Off-Limits

On the afternoon of March 16th, 2017, aspiring rapper Anthony Murillo stood to hear the jury’s verdict – the culmination of a weeklong trial in which prosecutors argued that he had used a rap song to threaten two female students at his Santa Maria, California, high school.

Like hundreds of rappers before him, Murillo found himself the target of an increasingly popular law enforcement tactic: using rap lyrics as evidence. In courtrooms across the country, prosecutors are presenting the lyrics as literal statements of fact rather than artistic expression. No other fictional genre is treated this way, a troubling fact that raises important questions about the way racial double standards operate to put rap music, and the people behind it, on trial.

Murillo’s case dates back to 2012, when two students – referred to as Jane Doe One and Two in court documents, because they were minors at the time – accused Murillo’s close friend Shane Villalpando of sexual assault, resulting in his conviction. Prosecutors claimed that after his friend was sent to jail, Murillo – who performs as Lil A – wrote a violent song titled “A Moment for Life (Remix)” and posted it online in order to threaten the girls. Before it was taken down less than a month later, the song was played over 23,000 times.

Murillo denied that he ever intended the song as a threat, but he and his attorney, William Makler, faced an uphill battle in court. The jurors were middle-aged and mostly white (Murillo is Hispanic), and as post-trial interviews suggested, nobody on the jury particularly liked rap music. Making matters worse, the song itself is offensive in just about every way to an unsympathetic listener. It is laced with profanity. It is gleefully misogynistic, and full of violent rhetoric. And, most important to the case, it calls out Jane Doe One and Two by their real names, ending with the lines, “You’re gonna end up dead… because I’m coming for your head, bitch.”

Murillo and his attorney maintained that the song, however inappropriate, fell squarely within the traditions of rap music and therefore should not be construed as a true threat.

That’s where I came in. As a professor of African-American literature and music, I was called as an expert witness for the defense, where my role was to educate the jury about the conventions of rap. I explained that, in the end, it is a kind of fiction – one that, like horror films or country songs, frequently relies on exaggerated depictions of violence. As I told the jurors in Murillo’s case, the rhetoric of rap music is both complex and slippery; it is often intentionally hyperbolic as well, drawing on the long tradition of boasting and exaggeration.

Add to that how aspiring rappers like Murillo often emulate the hardest, most explicit artists in order to advance their careers, and it becomes all but impossible to take their lyrics at face value. After all, when Eminem calls out his ex-wife by name and says things like, “Now shut the fuck up and get what’s coming to you … bleed, bitch!” we know full well that he has no intention of killing her. If he wins Grammys and makes millions of dollars from lyrics like this, why should Murillo get jail time?

The jurors ultimately decided he shouldn’t; they came back with a verdict of not guilty. Most juries, however, do not.

I have worked as an expert or consultant on dozens of cases involving rap lyrics as evidence – but those cases are only the tip of the iceberg. Last year, I began working with University of Georgia law professor Andrea Dennis, who has been studying this topic for a decade, to document the full scope of what we call “rap on trial.” Along with our student research teams at the University of Richmond and the University of Georgia, we have uncovered hundreds of cases already – some going back to the early 1990s, but most from the mid-2000s onward.

Almost all of the defendants in these cases are young men of color, and they often face devastating punishments. Many are sentenced to decades in prison. Even more alarming is that, to date, we’ve found more than 30 cases involving rap as evidence where prosecutors sought the death penalty. 

Most of these cases are unlike Murillo’s. Whereas his lyrics were themselves the crime, charged as a threat, in most others prosecutors use rap lyrics to demonstrate a defendant’s involvement in an underlying crime.

Take, for instance, the case of Vonte Skinner, who was charged for his role in a 2005 shooting. During Skinner’s trial in 2008, the prosecutor read to the jury page after page of his violent rap lyrics, arguing that they were evidence of Skinner’s motive and intent. The lyrics included lines like, “I play no games when it comes to this war shit/If death was a jacket, you would see how the floor fits.”

All of his lyrics were composed before the shooting – some of them years before – and none of them named the victim or contained details specific to the crime. Beyond the lyrics, the prosecutor’s other evidence was essentially comprised of eyewitness accounts from people who repeatedly changed their stories. And yet Skinner was convicted of attempted murder and sentenced to 30 years in prison.

In a high-profile ruling, the Supreme Court of New Jersey found, in a unanimous 2014 decision, that the use of Skinner’s lyrics was inappropriate. In effect, the Court recognized the distinction between reality and art, author and narrator:

“One would not presume that Bob Marley, who wrote the well-known song ‘I Shot the Sheriff,’ actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story ‘The Tell–Tale Heart,’ simply because of their respective artistic endeavors on those subjects,” wrote the Court. “Defendant’s lyrics should receive no different treatment.”

Unfortunately, rap lyrics do receive different treatment all the time. In order to get highly prejudicial rap lyrics or videos in front of a jury, prosecutors – often with the help of police “experts” – will effectively deny rap music the status of art. Ignoring its extensive use of metaphor, exaggeration and complex narrative perspective – nevermind that it is told from the perspective of an invented character, usually signaled with a stage name – they present the lyrics to juries as rhymed autobiography. If defense attorneys object to this, they are usually overruled. If they appeal down the line, they usually lose.

How is it that rap music is routinely treated this way in court when other art forms are not? It seems easy to blame rap itself; for years, rappers have claimed authenticity in their lyrics. The people most familiar with rap know that these claims are usually part of the fiction – the problem is that judges and juries often do not.

Yet there seems to be something else at play. Rap artists are primarily young black and brown men, and research suggests this is important. Multiple studies have demonstrated that when people are presented with identical lyrics containing violent content, they are significantly more likely to regard the lyrics as harmful and threatening if they are labeled as rap rather than country music, a traditionally white genre. Yet another study has shown that violent rap lyrics have the potential to exert a highly prejudicial impact on potential jurors.

In the end, that’s how rap lyrics are most useful to prosecutors and how they are most dangerous for defendants. They present the accused as the violent, dangerous criminal that many Americans already believe he is, making it all too easy for juries to return a guilty verdict.

Over the last decade or so, we’ve witnessed a precipitous increase in the use of rap as evidence, no doubt as prosecutors realize how effective a tactic it is. If rap lyrics are presented as confessions, as words to be taken literally, securing convictions is easy, even in the absence of more reliable evidence.

And thanks to sites like SoundCloud, ReverbNation and YouTube, there are more lyrics than ever available to police, who routinely mine social media for information they can use to justify increased surveillance, to make arrests or to submit as evidence at trial. It’s a new spin on a very old tradition, really. For centuries, law enforcement has sought to monitor, contain and punish black speech and dissent – something we’ve seen in recent attempts by police to surveil Black Lives Matter activists via social media.

Just as the Black Lives Matter movement has been regarded by authorities as a threat, so too has rap, particularly as it has insinuated itself into virtually every aspect of popular culture. Its ubiquity means we can’t escape it – or the black and brown voices behind it.

And that, I suspect, has triggered anxiety and anger among Americans who would prefer to silence those voices. It’s not hard to see Michael Dunn’s 2012 murder of Jordan Davis – an unarmed black teenager who wouldn’t turn down his “thug music” – as an extreme representation of the simmering resentment many Americans harbor toward a music that, in their minds, perpetuates black pathology. Last year, NYPD commissioner William Bratton basically said as much himself, opining on the “crazy world of these so-called rap artists,” who, he said, “are thugs that basically celebrate violence they did all their lives.”

I see some version of this view in courtrooms across the country, and it has resulted in an alarming attack on free speech and artistic expression.

To be sure, not all cases are easy. The Pennsylvania Supreme Court is about to consider the conviction of rapper Jamal Knox (aka “Mayhem Mal”), who recorded a version of N.W.A’s “Fuck tha Police” in which he identified Pittsburgh police officers by name and directed threatening-sounding lyrics at them. After events like the shooting of police in Dallas, Texas, people are understandably on edge.

But it’s worth remembering that hip-hop is a form of art, one that has long served as a vehicle for people to express their anger and frustration rhetorically, not physically. It also continues to offer meaningful opportunities for economic advancement, social and political activism and intellectual growth.

In the end, like the jury in Anthony Murillo’s trial, we have to decide whether such speech is worth protecting.

As far as I’m concerned, the answer is obvious.

Erik Nielson is Associate Professor of Liberal Arts at the University of Richmond. He is the co-author, with Andrea Dennis, of Rap on Trial, forthcoming from the New Press.