THE BLOG

Prosecuting Rap Music

03/26/2013 04:41 pm ET | Updated May 26, 2013
  • Erik Nielson Assistant Professor of Liberal Arts, University of Richmond

Earlier this month, the 5th District Illinois appellate court reversed the conviction of Olutosin Oduwole, an aspiring hip hop artist and Southern Illinois University student who was found guilty of attempting to make a terrorist threat during his 2011 trial. The original conviction was based on a crumpled note that university authorities found in Oduwole's vehicle, which mentioned a "murderous rampage similar to the VT shooting." Although some of the note was written in rhymed verse -- and defense attorneys offered convincing evidence it was merely a rap music lyric written down by an artist who took compulsive notes for his songs -- the all-white jury was unmoved. They found Oduwole guilty, and he was sentenced to five years in prison.

While the appellate court's opinion focused on other aspects of the case, the real issue that it raises is the increasing use of rap lyrics in criminal trials. Indeed, they are used with alarming regularity in courtrooms across the country because prosecutors know they offer an easy path to conviction. According to University of Georgia law professor Andrea Dennis, when courts allow the prosecutor to admit rap music lyrics as evidence, "they allow the government to obtain a stranglehold on the case." This occurs in large part because rap lyrics, particularly those of the "gangsta" variety, frequently glamorize the very criminal behavior that defendants are on trial for. If juries don't understand the narrative traditions of boasting and exaggeration on which rap is based -- or the industry conditions that push aspiring rappers to adopt a criminal persona -- then they find it easy to convict, even when evidence against the defendant is scant.

For this reason, defense attorneys often object when rap lyrics are introduced as literal evidence of criminal misconduct. However, judges -- sometimes as ignorant about rap music as juries are -- frequently allow the lyrics anyway, ignoring their highly prejudicial effect on the jury. In 1999, Stuart Fischoff, a psychologist at California State University, Los Angeles, conducted a study to determine just how prejudicial "gangsta" rap lyrics could be. What he found was that when presented with violent, sexually explicit rap lyrics written by a hypothetical defendant, jurors were more likely to view that defendant as guilty. What's more, when participants in the experiment were told that the defendant in question was being tried for murder, their perceptions of the defendant's character were more negative as a result of his writing the rap lyrics than due to his being charged with murder.

It's no wonder, then, that in their own training materials, prosecutors are encouraged to use music lyrics at trial whenever possible. As the Oduwole case and the growing number of cases like it reveal, rap is the genre that prosecutors target, almost exclusively. And it's not hard to figure out why. While nobody believes that Bob Marley shot the sheriff or Johnny Cash shot a man in Reno, neither artist tried to convince the public that the crimes were real. There was no question about the distinction between artist and performer. Rappers, however, blur that distinction all the time. Long after they walk off the stage, they often remain in character (still using their stage names), taking great pains to convince fans that they live the sordid lives they rap about. Judges and juries don't always appreciate that this attempt to establish street credibility is often more marketing strategy than reality.

Prosecutors, of course, are more than happy to exploit their ignorance and at the same time feed upon jurors' preconceived notions about men of color. Indeed, the image rappers project is one that maps perfectly to the stereotypes about black men, the primary performers of rap, that have hardened as fact among many Americans. Rather than see an artist at work, juries may see the commonly-perpetuated caricature of a violent and dangerous man who is deserving of punishment.

Several well-known rappers -- including Snoop Dogg, Beanie Sigel, and Lil Boosie -- have had their lyrics used against them in court. Celebrity performers such as these can often escape conviction, but amateurs like Olutosin Oduwole and many others are usually less fortunate. Without the name recognition to remind juries that they are indeed artists, or the financial resources to mount a legitimate defense, they remain vulnerable to a justice system that has become devastatingly efficient at locking up young men of color.

Courts may finally be catching on. Over the last couple of years, appellate courts in Maryland, New Jersey, and Massachusetts have thrown out convictions in cases in which rap lyrics were used against defendants at trial. However, appeals such as these are frequently unsuccessful, giving the green light to prosecutors to keep locking up hip hop artists for their creative expression. And so rappers across the country should be on notice that if they end up in court, they should be prepared to defend their music as vigorously as they defend themselves. If they don't, they could end up living the lines made famous by New York group Mobb Deep: "For every rhyme I write, it's 25 to life."

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