California restricts how lyrics can be used in criminal proceedings

David Kenner still remembers the lyrics prosecutors shared for the Los Angeles courtroom during the 1996 murder trial of his client Calvin Broadus, better known as the rapper Snoop Dogg.

“’Cause it’s 1-8-7 on an undercover cop” — a reference to California’s penal code for murder — from Snoop Dogg’s hit single “Deep Cover” performed with Dr. Dre. It was the prosecution’s way of inferring that Snoop Dogg’s creative output indicated criminality — and guilt — Kenner said. In reality, the song was recorded for the soundtrack of the 1992 crime thriller of the same name in which Laurence Fishburne stars as a police officer working undercover to bust a West Coast drug cartel.

“It was baloney,” Kenner told The Washington Post. “[Killing a cop] was the theme of the movie — that’s what they asked him to do in the recording.”

Snoop Dogg was acquitted, but researchers estimate more than 500 cases over the past 30 years have shown prosecutors using rap lyrics against defendants at trial.

Now, California has become the first state to put guardrails on introducing a party’s “creative output” — like a rapper’s lyrics or videos — into evidence during a criminal proceeding. Before allowing something like rap lyrics into evidence, judges must now ask, away from the jury, whether there is sufficient proof that the artistic expression is directly part of the criminal act on trial.

Gov. Gavin Newsom (D) on Friday signed the Decriminalizing Artistic Expression Act into law during an online ceremony attended by generations of hip-hop artists that included Killer Mike, Too Short, Meek Mill, Tyga, Saweetie, E-40 and Ty Dolla Sign.

Young Thug is latest rapper to have lyrics used against him in court

California Assemblyman Reggie Jones-Sawyer (D), the lead author of the legislation, said he was shocked when he learned via representatives in the recording industry that hundreds of people, almost entirely Black and Latino men, were imprisoned mostly based on the evidence from their rap lyrics or status as a rapper.

Jones-Sawyer said that where California leads on the issue, other states and federal legislation may finally follow. New York lawmakers have introduced a bill that goes further than California’s by presuming at the outset that an artist’s creative output is inadmissible unless “clear and convincing” proof can show otherwise. The Restoring Artistic Protection Act (RAP Act) was introduced this year at the federal level and is all but identical to California’s law.

“By the governor signing this, it’s now a blueprint for how it can get passed in other legislatures and at the federal level,” Jones-Sawyer said.

Newsom said California’s entertainment industry makes the state’s legislation a “fitting” example.

“Artists of all kinds should be able to create without the fear of unfair and prejudicial prosecution,” Newsom said in a statement Friday.

While California’s law applies to all forms of artistic expression, including songs, dances and the written word, it was crafted with rap in mind because of the significant research — and number of real-life instances from courtrooms across the country — that show the genre is associated with stereotypes that tend to create unfair prejudice against the artist.

A 2016 study by criminologists at the University of California at Irvine found that participants were more likely to perceive rap as threatening and literal compared to genres such as country. Participants were presented with the same lyrics, with one group told that the lyrics were to a country song and the other group told that the lyrics were from a rap song; they found lyrics more offensive, literal and “in need of regulation” when they thought they were from a rap song.

Tricia Rose, who specializes in African American culture and politics at Brown University and is the author of 2008′s “The Hip-Hop Wars: What We Talk About When We Talk About Hip-Hop — and Why It Matters” said bias against rap is linked to long-standing racist stereotypes of Black people as violent, hypersexual, criminal and unintelligent.

“There’s been a fixation and strange desire for Black people to perform that criminal identity in art and culture,” Rose said. “The notion of racial authenticity is often attached to that fantasy, that fiction of Black criminality. [Rappers] are only getting signed if they’re taking up a more criminal persona, and fans of hip-hop — especially White fans — thinks that’s what makes hip-hop effective.”

Researcher Erik Nielson of the University of Richmond and his co-author, lawyer and professor Andrea Dennis, followed Rose’s work for their 2019 book, “Rap on Trial: Race, Lyrics, and Guilt in America.” The pair were among those who found the hundreds of cases where rap lyrics were used against defendants. Nielson said a more accurate estimate, when sealed indictments, juvenile cases and plea bargains are included, is probably in the tens of thousands.

Despite more attention to racial disparities in the criminal legal system, instances of bringing prejudicial and irrelevant rap lyrics into criminal proceedings have proliferated.

“It’s insidious. It plays upon racial stereotypes to secure convictions when there might not be much else in the way of evidence,” he said.

One case, dating back to 2000, is the trial of McKinley Phipps Jr., better known as Mac Phipps. The New Orleans-based rapper was set to perform at a club when a fight broke out, leading to the fatal shooting of 19-year-old Barron Victor Jr.

Phipps’s defense argued there was no physical evidence linking him as the shooter, but prosecutors secured a conviction after misquoting and taking his lyrics out of context.

“This defendant who did this is the same defendant whose message is, ‘Murder murder, kill, kill, you f— with me you get a bullet in your brain,’” prosecutor Bruce Dearing said during closing arguments, according to reporting by HuffPost.

Phipps was sentenced to prison, where he spent 20 years before he was granted clemency last year. HuffPost reported that five witnesses later recanted their testimony and said they never saw Phipps shoot anyone.

More recently, rappers Young Thug and Gunna, whose names are Jeffery Lamar Williams and Sergio Kitchens, respectively, were among 28 defendants arrested on gang-related charges under Georgia’s Racketeer Influenced and Corrupt Organizations Act, or RICO.

Details from their music videos and lyrics were cited as evidence of their alleged criminality and supposed gang ties. Kitchens’s lawyer in a motion filed in May called it “intensely problematic” that the state was citing lyrics in its allegations.

“These lyrics are an artist’s creative expression and not a literal recounting of facts and circumstances,” the motion read.

While California’s law requires judges to consider the value of an artist’s work against its potential to unfairly prejudice the jury before allowing it into evidence, Nielson is not convinced it goes far enough.

“That California prosecutors didn’t even oppose the bill tells you all you need to know about how effective it is,” he said. “This isn’t really going to change a whole lot in California, and that’s disappointing because the state is the worst offender of using rap as evidence.”

At the same time, Nielson said the law is symbolically important — and he hopes his prediction of it as minimally effective is disproved. Nielson argues that there should be a shield law for rap similar to rape shield laws that limit how much the defense counsel can bring a victim’s sexual history into evidence.

With rap lyrics, there may be circumstances when they are relevant to the case and should be permitted, Nielson said. But they shouldn’t automatically be allowed into evidence with no thought to relevance, given what’s been studied about how rap conventions can be so inflammatory and prejudicial that lyrics can alter the outcome of a case, he said.

“If you don’t need the rap lyrics because you have all the evidence, don’t use them,” he said “And if you need the rap lyrics because you don’t have the evidence, don’t charge them.”

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