Rap on Trial

NY Lawmakers Introduce Bill to Ban Prosecutors From Using Rap Lyrics as Evidence

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Two New York lawmakers want prosecutors to stop using lyrics of rap artists against them in the courtroom, citing freedom of artistic expression and how there are often preconceived notions about the genre.

Sen. Bran Hoylman and Sen. Jamaal Baily of New York City introduced their so-called "rap music on trial" legislation on Wednesday to the Senate. It comes nearly two years after Brooklyn rapper Tekashi 6ix9ine was sentenced to two years in prison for multiple counts of racketeering, firearms offenses and drug trafficking.

The Democrats claimed that prosecutors used 6ix9ine's music to expose his entanglement with the street gang Nine Trey Gangsta Bloods - a move that has put him at risk behind bars. 6ix9ine, whose real name is Daniel Hernandez, said he decided to cooperate with prosecutors after the racketeering indictment naming him as a gang member.

Hernandez could have been sentenced to 47 years in prison, but prosecutors recommended a lesser sentence in exchange for his cooperation.

“Art is creative expression, not a blueprint of criminal plans. Yet we’ve seen prosecutors in New York and across the country try to use rap music lyrics as evidence in criminal cases, a practice upheld this year by a Maryland court," Hoylman said in a statement, referring to Hernandez and rapper Lawrence Montague whose lyrics was also used in his murder trial of an Annapolis man.

Montague was sentenced to 50 years in prison for the fatal shooting and for use of firearm.

An appeals court last year upheld that Montague's lyrics were admissible in court because the lyrics "bear a close nexus to the details of an alleged crime."

If approved, the bill wouldn't ban lyrics in the courtroom altogether. It would require prosecutors to affirmatively prove that the evidence is admissible by clear and convincing evidence.

"I hope this bill advances and lawmakers in Washington and around the country follow suit with similar protections," said Jack Lerner, a law professor at the University of California Irvine who published the "Rap on Trial Guide" as a resource for defense attorneys.

There have been several other cases where violent lyrics have been used against the artists and each case has been different. Unlike Montague, whose lyrics were penned after the alleged crime, lyrics used in the 2005 New Jersey trial of Vonte Skinner were written three or four years prior despite the pages being found in his car when he got arrested.

New Jersey’s highest court ruled in 2014 that Vonte's violent lyrics should not have been admitted as evidence at his trial. The state supreme court and a lower appeals court both faulted the trial judge for allowing prosecutors to read the lyrics to jurors.

Such cases have been watched closely by civil liberties advocates who say lyrics should be considered protected free speech. As Justice Jaynee LaVecchia puts it in her opinion on Skinner's case: “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."

While rap and hip-hop aren't the only genres with violent lyrics or rhymes about crimes, nor is every song of the genres contain similar messaging, lyrics from the genres are mostly always used against Black or Latino artists, the American Civil Liberties Union said in one of its analysis of such cases.

"The admission of art as criminal evidence only serves to erode this fundamental right, and the use of rap and hip-hop lyrics in particular is emblematic of the systemic racism that permeates our criminal justice system," said Sen. Bailey.

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