When I was just a baby
My mama told me, “Son
Always be a good boy
Don’t ever play with guns,”
But I shot a man in Reno
Just to watch him die
Johnny Cash wrote that in his classic country hit, “Folsom Prison Blues,” recorded in 1955. The man in black. Self-styled outlaw. Sex symbol. Shot a man just to watch him die. The line made him famous and anchored a storied career.
When N.W.A. released “F– tha Police” in 1989, the gangsta rap protest song brought fame as well, but also bans from airwaves and a letter from the Federal Bureau of Investigation.
The difference underscores the scrutiny rap lyrics and hip hop in general continue to endure, compared to other genres where artistic expression is rarely interpreted as actual criminal intent and deeds — past, present and future.
Add to this today’s vast and easily accessible social media ocean for aspiring rap artists to post their work and express hip hop culture, and everything is a click or swipe away. And it is presenting a challenge in courtrooms in the United States and Canada, where a growing area of study examines the complex and controversial intersection of crime, rap lyrics as evidence, expert witnesses and the courts.
Google “rap on trial” and plenty pops up. Rap lyrics are being used in court cases as proof of intent, confessions and threats, and as character evidence, at times without the benefit of experts who can provide judges and juries with context and history. In other words, taking them to the school of rap.
“There is this tendency for outsiders in the justice system and police to view the word and the lyrics and stories that are coming out of the mouths of rappers, especially Black rappers, as if they are autobiographical portraits of their lives,” says Jooyoung Lee, associate professor of sociology at the University of Toronto.
“But that’s been roundly disproved and there’s quite a bit of stuff, both in academia and also just popular writing and documentaries, that really poke holes in this presumption that the kinds of identities and lyrics that people present in their music are actually authentic representations of who they are,” says Lee, who teaches a course on hip hop, which examines its beginnings and history and includes comparisons like Cash vs. N.W.A.
He has also testified as an expert witness in court, called upon to provide background context into why aspiring rap artists might talk or boast about involvement in street violence, “whether that be in the form of gangs or in shootings or robberies and other kinds of activities that often come up in certain genres of hip hop.”
The challenge for courts, says Lee, is differentiating between “artists who are really trying to make it and this is a way out of the gang life, the street life” and an emerging practice of young people “immersed or involved in gangs or street crews where they’re increasingly turning to social media as a way to provoke, disrespect, communicate.
“I think that’s where you really do need the expertise of somebody coming in,” says Lee, who grew up in California in the ’90s, fell in love with hip hop culture and studied and hung out with aspiring hip hop artists in South Central Los Angeles. He wrote a book about the latter, called Blowin’ Up.
University of Windsor law professor David Tanovich examined North American criminal cases where rap lyrics came into play — including ones in Canada, and one in which Lee testified — and found few excluded rap lyrics as evidence of guilt.
However, unlike Canada, the “issue of criminalizing rap has received considerable attention in the United States” judging by recent newspaper articles and opinion pieces, Tanovich wrote in a 2016 academic paper entitled “Rethinking the Admissibility of Rap Lyrics in Criminal Cases.”
Using media reports, Tanovich identified 36 cases in Canadian courts from the past decade where rap lyrics came into play, and found only one that involved lyrics from another genre. In that case, involving a murder, the Newfoundland Court of Appeal excluded the lyrics to a “metal/punk” song entitled “Kill Kill Kill.”
Of the 36 rap cases, 16 involved the Crown using lyrics as evidence of guilt. It was used as defence evidence in five cases. In four, rap lyrics were excluded. The remaining cases involved sentencing and charter applications.
“Generally speaking, the Canadian cases have failed to apply a culturally competent lens when assessing probative value and, to address the relevance of race and bias, when assessing prejudicial effect,” Tanovich wrote.
Tanovich has said to include lyrics there must be probative value, and rap lyrics should only be entered into evidence in “exceptional cases” because systemic racism is a problem in the justice system.
In a 2018 Toronto murder case, 10 rap videos were excluded from evidence in the trial of Jermaine Dunkley, an admitted criminal gang leader and rapper. Lee was called as an expert witness in that case by the defence, while a Toronto police officer was called as an expert for the Crown. Ontario Superior Court Justice Michael Code ruled that the videos would have a “powerful prejudicial effect” and “very few” parts of the videos were relevant to the trial at hand.
Nonetheless, a jury found Dunkley guilty of first-degree murder in November in what the Crown portrayed as a revenge killing. Dunkley is to face another trial for another murder in Hamilton.
Lee and other American experts on rap and the courts say courts generally fail to regard it as an art form.
That, notably, was not the case in another Toronto murder case in which Lee testified. “As with lyrics generally, but especially when it comes to rap, it is risky to take any word literally,” then-Superior Court Justice Ian Nordheimer wrote in a 2015 decision excluding lyrics written by Orville Campbell.
“Rap, particularly gangster rap, often deals with the subject matter of drugs, guns, shootings, violence and the like,” wrote Nordheimer, now sitting on Ontario’s Court of Appeal. “The mere fact that an artist records a rap with lyrics that refers to such activities cannot be taken as an admission by the artist that they were involved in such activities, even where the lyrics are used in the first person.”
There is a long history of artists writing lyrics as if they had personal involvement in events, but in fact had “no involvement with them at all,” wrote Nordheimer.
The Crown had sought to include a rap video by Campbell that included this, among other, lines: “One shot, leave your brains on your Nikes.” The victim in the murder for which Campbell was eventually convicted was wearing Nikes at the time of his death. The judge noted that “fact, of course, only makes the deceased one among literally thousands of young men” in Toronto who, on any given day, would be wearing Nikes. (Campbell is appealing his conviction.)
In a landmark U.S. court ruling on rap lyrics, the Supreme Court of New Jersey affirmed a lower appeal court’s decision to exclude 13 pages of violent rap lyrics in an attempted murder case, overturning a conviction.
“The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavours is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views,” the New Jersey court noted in its decision. “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 the floorboards, as depicted in his short story ‘The Tell-Tale Heart,’ simply because of their respective artistic endeavours on those subjects.”
Rap is “like poetry, or any kind of literary tradition that requires a person who is going to be well versed in that area,” says Lee, who hopes the Canadian justice system “gets to that point where people realize that, at the very least, you can’t proceed in these cases if you don’t have experts who have studied and who have an understanding of the culture present to weigh in on what they see and interpret from the evidence and data that they’re given.
“But there’s this other side of me that also, from a long view, sees the persistence of different institutional levers in place that disadvantage people of colour,” says Lee, “and that end up disproportionately impacting their chances as they go through the justice system.”
Jim Rankin is a reporter based in Toronto. Follow him on Twitter: @Jleerankin