Should Creative Expression be Admissible Evidence at Trial?

By Jack Bradley, Blog Editor

Photo Courtesy of Pixels

The admissibility of forms of creative expression in criminal trials is a challenging issue that must strike a delicate balance between justice and artistic freedom.[1] In the past few years, several popular rap artists, such as Young Thug, Gunna, and YNW Melly, have had criminal proceedings in which their musical lyrics were used as evidence.[2] Of the aforementioned artists, the high-profile musician Jeffery Lamar Williams, known as Young Thug,[3] was recently charged with 56 counts of racketeering. The indictment “heavily cited his lyrics, [and] music videos ….”[4] The use of creative expression, especially rap lyrics, as evidence is no new tactic. Rap lyrics have been used as evidence in criminal trials for over 30 years.[5] While there can be significant probative value from using musical lyrics at trial, this type of evidence has historically unfairly targeted Black musicians.[6]

Currently, within the Federal Rules of Evidence (FRE), the protection of creative expression is provided by Rule 403, known as the 403 balancing test, which requires that courts must weigh the probative value versus its prejudicial effect of the admission of a piece of evidence.[7] Only when the probative value substantially outweighs the danger of prejudice can evidence be admitted.[8] As such, if there is not a clear connection between the desired artistic testimony and the matter at hand, the evidence should not be admitted under current law.[9]

There is a strong movement for legislation amending the FRE pertaining to admissibility of musical lyrics.[10] The proposed rule would make it significantly harder for a trier of fact to admit music lyrics as evidence, as there would be additional steps required.[11] However, not everyone is convinced that such a change is necessary. Some critics argue that the balancing test affords sufficient protection for music lyrics and there is no need for additional protections.[12]

While it may seem that the balancing test should be an effective shield against prejudicial use of musical lyrics, the correlation between the alleged wrongdoing and the artistic expression can be a gray area. Often musicians purposely shield themselves with a persona, and it can be unclear whether their artistic speech is reflecting their own past experience or fictional stories that fit with their stylistic intent.[13] Therefore, not only does a court have to balance the probative vs. prejudicial value of the artistic speech, but it must also determine whether the artist’s speech is fiction or nonfiction.

Some state legislatures have taken it into their own hands to modify rules pertaining to admission of creative expression as evidence.[14] One of those states, California, has recently extended the balancing test for cases involving creative expression, stating the court shall consider “the probative value of such expression for its literal truth … is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available ….”[15] The addition of the California Act has been welcomed, as it still allows a trier of fact to use musical lyrics when there is empirical evidence correlating it to a crime, yet it makes musical lyrics inadmissible in cases that fall within the aforementioned gray area.

Further, there have also been efforts by federal legislators to restrict the use of musical lyrics. The Restoring Artistic Protection Act (“RAP Act”) “would protect artists’ First Amendment rights by limiting the admissibility of their lyrics as evidence in criminal and civil proceedings.”[16] In a press release, Congressman Hank Johnson, one of the Bill’s sponsors, stated “Freddy Mercury did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘’pulling the trigger.’ Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting ‘a man in Reno, just to watch him die.’”[17] The act failed in its first attempt but has since been reintroduced and garnered significant backing from the entertainment industry.

While it is unclear whether the RAP Act will ultimately be successful, it is likely that the movement will grow within state legislatures as the outcry from members of the entertainment industry and from legal advocates continues.

[1] See Emerson Sykes, Putting Rap Lyrics on Trial is a Violation of Free Speech, ACLU (Nov. 9, 2020)

[2] See Neil Shah, Rappers’ Lyrics Are Used Against Them in Court. The Music Industry Wants It to Stop, The Wall Street Journal (Nov. 1, 2022) See Also Andre Gee, Courts Are Preying On Rappers and Their Lyrics, Complex (Jan. 15, 2021)

[3] Jeffery Lamar Williams known as “Young Thug” is a Grammy Award winning rapper. Marisa Mendez, Young Thug Wins First-Ever Grammy for Feature on Childish Gambino’s “This Is America”, XXL Magazine (2019)

[4] Cady Lang, What to Know About Young Thug’s Trial and the Controversial Use of Rap Lyrics in Criminal Cases, Time Magazine (Jun. 29, 2022)

[5] See Emily Pecot, Using Rap Lyrics as Evidence in Court, New Jersey State Bar Foundation (Feb. 13, 2023)

[6] Safia Samee Ali, Black Rappers Call out Double Standard of Using Hip-hop Lyrics as Evidence in Rapper Young Thug’s Criminal Trial, NBC News (Jan. 13, 2023)

[7] U.S.C.S. Fed Rules Evid. R 403.

[8] Id.

[9] See supra note 13.

[10]  See text accompanying note 14.

[11] Sahahile Donaldosn, Rap Music on Trial Bill Would Stop Prosecutors From Citing Irrelevant Lyrics in Court, City and State New York (June 6, 2023)

[12] See supra note 11.

[13] Kelly McGlynn, Lyrics in Limine: Rap Music and Criminal Prosecutions, ABA (Jan. 11, 2023) (Noting “[t]he probative value of rap lyrics is highly questionable . . . [due to] artists often writing under fictional personas, referenc[ing] events in the news (including crimes), and employ[ing] lyrical hyperbole).

[14] See Cal. Evid. Code § 352.2(a) (Deering, Lexis+ through the 2023 Extra Sess. Ch. 1, 2023 Reg. Sess. Ch. 890). See Also A.B. A127,2023 Reg. Sess. (N.Y. 2023).

[15] Cal. Evid. Code § 352.2(a) 

[16] Press Release, Congressmen Johnson, Bowman Re-Introduce Bill To Protect Artists’ 1st Amendment Rights, The Office of Congressman Hank Johnson (Apr. 23, 2023)

[17] Id.  

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