Art and Evidence: Judicial Tools for Determining the Admissibility of Rap Lyrics in Criminal Trials

From the abstract:

“When rap lyrics or videos are offered as evidence in a criminal proceeding, trial judges must determine whether the material is admissible. This decision-making process may be complex and/or nuanced, since it involves principles of substantive law, evidentiary rules, trial procedure, societal norms, and biases all at once. With this Article, the authors seek to help readers better understand the process by discussing these components in the context of this work. The authors propose that assessing rap content for admissibility in criminal trials calls for a sincere application of the tools and methods already available to trial judges, and a heightened awareness of the potential that societal biases may unduly influence the outcome.

The authors argue that this decision-making process is a distinctly judicial practice, as it turns on the individualized evaluation of the evidence and circumstances in a particular case. This Article discusses the attempt of some states to regulate the admissibility of rap content with legislation (proposed in some, enacted in others). The authors classify this legislation as employing either an instructive approach, which guides trial judges through careful assessment of the evidence, or a preclusive approach, which seeks to exclude material based on categorical designations. The authors argue that any legislative intervention in this internal judicial process should be instructive.

Overall, this Article intends to support trial judges as they endeavor to promote fairness in the trial process. To this end, Section III of this Article provides a series of questions distilled from the voluminous case law on the topic, evidentiary principles, and observations about the common themes of the rap genre. These questions serve as a guide for trial judges as they assess the probative value and prejudicial effect of the proffered evidence, and helps navigate constitutional objections.”