Framing rap pre-trial

Arguably the most important intervention an expert can make in a rap-on-trial case occurs before trial, and even before the formal discovery process begins (discovery refers to the formal process in which attorneys on each side furnish the other with evidence, potential witnesses, etc.). If an attorney takes on or is assigned a criminal case involving a defendant who performs or produces rap music, best practice is to assume that prosecutors will try to leverage that music however they can. If they are successful, they gain a significant advantage (as Dennis puts it, ‘a stranglehold’) at trial, so an expert can provide vital research that defence counsel can use to argue for the exclusion, or at least limitation, of rap-related evidence.

Here the Caldwell case was very unusual. The trial process actually began before I became involved, and I was contacted by music journalist Jeff Weiss – the author of The Los Angeles Times article about Drakeo – because he was deeply concerned about Caldwell's defence, noting that he had attended a pre-trial hearing and it was clear that Caldwell's 91-year-old attorney was ‘woefully outgunned’ and appeared unprepared to navigate the challenges that a case so centred on black popular culture would present (J. Weiss, email communication, 28 January 2019). Caldwell's friend and sound engineer, Navin Upamaka, also contacted me with similar concerns. Both asked me if I could find a new attorney.

I reached out to a colleague with whom I had collaborated in the past, a San Francisco-based attorney named John Hamasaki. Having worked on cases involving rap as evidence in the past, he was eager to take on another, even if it meant relocating to Los Angeles for months. As it turned out, getting Hamasaki to take the case was easy compared with convincing Caldwell and his family to change attorneys right before trial – by any estimation a risky decision. So I set up a call with Caldwell, who was in prison awaiting trial; I later learned that his aunt had been listening in as well. I explained my experience with cases like his, my knowledge of Hamasaki's work, and promised that I would remain engaged throughout the trial, providing in-court testimony if needed. I didn't want the family to suspect that my recommendations were motivated by personal gain, so I offered to work on the case pro bono. Hamasaki was hired shortly thereafter.

Since Caldwell's previous attorney made no attempt to exclude his lyrics before trial, we knew they were going to be admitted and focused on preparing for my testimony. Normally, however, attorneys have an opportunity to exclude lyrics beforehand, and to that end they will often call upon an expert to put rap in the appropriate context, focusing on its evolution as an art form and its often-complex conventions. After all, it is safe to assume that most actors within the criminal justice system – police, lawyers, and judges foremost among them – will be largely unfamiliar with, or even openly hostile to, rap. What's more, they may have preconceived notions about the young men who produce it – namely, that they are neither educated nor sophisticated enough to produce complex works of art. For instance, when the head of the Newport News, Virginia, gang unit was asked if he considered the fictional or artistic elements of the rap videos he and his officers watch as part of their community surveillance, he replied, ‘We are not dealing with the brightest guys’, adding, ‘It's much easier to write about something [that happened] than to think of something’ (Ross Reference Ross2014). In many ways, this (mis)perception lies at the heart of rap-on-trial and, therefore, represents one of the primary challenges of an expert – namely, overcoming the assumption, generally perpetuated by the state, that rap artists aren't really artists at all, which opens the door to interpreting their lyrics as, in the words of one prosecutor, ‘autobiographical journals’ (Hernandez Reference Hernandez2013).

To counter this narrative, an expert may be called upon to provide a written report before trial that explains the history and conventions of the genre. For such a report it is often wise to emphasise the artistic, rhetorical and commercial traditions underpinning rap music so that, armed with this information, a judge might think twice before allowing rap into evidence.

For starters, in order to dispel the notion that rap artists are simply snitching on themselves in rhymed form, it is useful to explain the long and complex traditions out of which rap music emerged. While 1970s New York City is widely considered ground zero for hip hop, the movement evolved from a wide range of musical antecedents, including West African music, slave spirituals and work songs, as well as blues and jazz. Equally important are non-musical sources, including the urban fiction of authors like Iceberg Slim and Donald Goines (among the best selling African American authors of their times), the so-called ‘blaxploitation’ films of the 1970s, and the confrontational poetry of the Black Arts Movement (Quinn Reference Quinn2005).

Highlighting the connections between hip hop and its artistic predecessors is useful for two reasons. For one, it emphasises the creative traditions that underpin hip hop, complicating efforts to delegitimise it as art. In addition, it offers an opportunity to demonstrate that hip hop music has received the kind of recognition generally reserved for more traditional (read: white, Western) art forms. Kendrick Lamar's 2018 Pulitzer Prize for his album DAMN is an obvious and recent example, but rap music has been taught in colleges and universities across the world for decades, representing what Henry Louis Gates, Jr calls ‘the new vanguard of American poetry’ (Bradley and DuBois Reference Bradley and DuBois2010, p. xxvi). This new poetry has expanded far beyond the borders of the United States to become one of the world's most popular and influential musical forms. Judges need to know that.

They also need to know that interpreting the lyrics requires specialised knowledge. Recognising this, in 2003 a British judge presiding over a copyright case involving rap lyrics remarked that the case ‘led to the faintly surreal experience of three gentlemen in horsehair wigs examining the meaning of such phrases as “mish mish man” and “shizzle my nizzle”’. Noting the interpretive difficulties he had with many of the lyrics, the judge observed that although they were in a form of English, they were ‘for practical purposes a foreign language’ (CNN 2003).

Given its popularity and ubiquity, rap can hardly be considered ‘foreign’ anymore, but the judge's basic point is an important one for an expert to emphasise: rap lyrics do not lend themselves to easy interpretation, particularly for those unfamiliar with its conventions. These are rooted in a long tradition of African American storytelling and language games, which are themselves rooted in the process of signifying, or ‘the obscuring of apparent meaning’ (Gates Reference Gates1988, p. 53). In the signifying tradition, ambiguity is prized, meaning is destabilised, and gaps between the literal and the figurative are intentionally exploited. As Gates, Jr notes, therefore, rap ‘complicates or even rejects literal interpretation’ (Gates Reference Gates, Bradley and DuBois2010, p. xxv).

Recognising this type of rhetorical flexibility is essential to interpreting rap music. And it is useful to remind courts that most, if not all, art forms require some level of expertise to understand fully. Yet rap's complexities make it particularly challenging. Rappers employ all the same devices as other poets, including extensive use of symbolism and metaphor; they are also highly focused on form, choosing words not only for their meanings and connotations, but also for their place in the metre and rhyme scheme of the song. Further complicating matters, rap is characterised by dense slang, coded references, intentional mispronunciations, and sometimes blazing-fast delivery, which defies interpretation at every turn.

This is often the point in rap, as well as in the black vernacular generally, which has long employed semantic inversion, neologism and other devices to maintain what linguist Geneva Smitherman refers to as a ‘black linguistic code’ (1977, p. 70). Speaking to this kind of code in rap, Jay Z writes, ‘The art of rap is deceptive’, noting that lyrics are imbued with multiple, unresolved layers of meaning so that ‘great rap retains mystery’ (2010, pp. 54–5). An expert should, whenever possible, emphasise the fluid, often multi-valent nature of rap lyrics in order to illustrate the problem with trying to ascribe fixed meanings to them.

Yet another way to contextualise rap music, particularly the violent rap that ends up as evidence, is to explain the commercial pressures on aspiring artists. For decades, music industry executives – particularly those running major record labels – have pressured young artists to present themselves as a gangster in their lyrics, even when that persona has nothing to do with the artist in real life. As Damon Tillard, the so-called ‘Hip Hop Minister’, puts it in Byron Hurt's (Reference Hurt2006) documentary Hip-Hop: Beyond Beats and Rhymes, ‘Every black man that goes in the studio, he's always got two people in his head: him, in terms of who he really is, and the thug that he feels he has to project. It's a prison for us’. To be fair, some artists undoubtedly relish the chance to adopt a violent persona – after all, violent themes are ubiquitous across popular culture. But there is no denying that thanks to industry pressure, incorporating violence is often more a requirement than a choice. This pressure comes in a variety of forms. For an up-and-coming artist, it can mean the difference between landing a recording deal and being turned away. For more established artists, many of whom are in highly restrictive contracts (Brown Reference Brown2020), it can mean having a recording project held up or cancelled unless the lyrics are revised to conform with gangsta rap conventions. And even once an album is released, it can mean the difference between getting airplay on the radio or on television – or being relegated to relative obscurity. As Mark Anthony Neal notes, the result is only certain types of rap make it to the mainstream: ‘We want to see the hardcore thug performing hip-hop. We want to see booty shaking in the background. And when hip-hop videos don't fit into those conventions, they don't get played’ (Hurt Reference Hurt2006).

For many artists, record deals with major labels and distribution via radio and television are still the goal, but for the last decade in particular, social media has allowed for alternative business models. Gone are the industry gatekeepers who control access to the market; thanks to sites like YouTube, Facebook and SoundCloud, amateur artists have new ways to create and distribute their music directly to their fans. For some, this has opened up new creative spaces. No longer confined to gangsta-type themes, some artists have built successful careers while rapping about more socially or politically conscious themes – something that a decade ago would probably have relegated them to rap's ‘underground’.

But for many aspiring rappers, certainly those I've seen caught up in rap-on-trial, gangsta-inspired rap is still seen as the easiest path to success. Whether or not the amplification provided by social media results in commercial success for individual artists, it certainly increases exposure to law enforcement. It is no coincidence, then, that the rise of rap-on-trial cases in the US – and probably the UK as well, where drill has emerged in large part because of sites like YouTube (Ilan, Reference Ilan2020, p. 2) – tracks neatly to the increasing prevalence of social media in the production and distribution of rap music (Nielson and Dennis Reference Nielson and Dennis2019).

In the majority of cases I've been involved in, attorneys have asked me to highlight the imitative nature of the artist's lyrics, that is, that they are modelled after those of more prominent and commercially successful artists. So in most reports I've written, as well as in all three amicus briefs I've written for the US Supreme Court, I focus on the extent to which the lyrics being proffered as evidence by the State have been used, often verbatim, by many mainstream artists. This approach is intended to demonstrate to a judge or jury that lyrics that on their face may seem shocking or disturbing can, in fact, create a pathway to a lucrative career.

At the same time, it is intended to effect a kind of artistic distance between the defendant and his lyrics; because he is imitating other artists, it is more difficult to connect his lyrics with his own thoughts, feelings and experiences. These are borrowed words, belonging to someone else. This line of argument works as a fallback position – if judges and juries don't buy rap lyrics as fiction, then this is the next best approach. The result is that an expert may sometimes feel as if he or she is denigrating the artist on trial by emphasising his lack of originality.

In 2017, I was confronted with a disturbing example of this in the case of Ronnie Fuston, who had been convicted of murder by an Oklahoma City jury (Fuston v. State, 470 P.3d 306 (2020)). The State was seeking the death penalty, and the jury that found him guilty was being asked to weigh whether he was deserving of execution. Fuston's attorneys argued that he had taken multiple IQ tests that classified him as ‘mentally retarded’ (that is the legal term in Oklahoma). Although the US Supreme Court outlawed the death penalty for someone whose IQ designates him or her as mentally retarded (Atkins v. Virginia, 536 US 304 (2002)), the Oklahoma legislature passed a law stating that anyone who had ever received a score above 75 – the threshold score for mental retardation according the US Supreme Court – could not be considered retarded, even if multiple other scores fell below 75. (Fuston's scores went as low as 59.)

So at sentencing, prosecutors were intent on emphasising Fuston's intelligence in order to argue that he was fit to be executed. One way they did that was by introducing a recording of Fuston rapping (which had not been admitted at trial) to demonstrate that he had the mental acuity to write and then memorise long lyrical passages. My role, then, was not only to emphasise that the lyrics were highly imitative of more successful artists, but also, through audio manipulation of the recording, to argue that because there were a number of audible stops and starts – as opposed to one single recording – that Fuston could have memorised just a line or two at a time and recorded each memorised portion in succession. In an uncomfortable turn of roles, the State was cynically elevating the sophistication of a rap artist and I felt as if I were doing the opposite.

This is obviously an extreme example, but it does shed some light on the conflicting roles that an expert may be required to assume. Here, personal or professional convictions can collide with the realities of the criminal justice system and the most effective ways to navigate it.

Demonstrating prejudice

In order to exclude, or at least limit, the introduction of rap lyrics as evidence at trial, attorneys will generally try to demonstrate that rap has the potential to be highly prejudicial to a jury. That's because in the US, the federal rules of evidence permit a judge to exclude evidence, whether it is relevant or not, if its probative value is significantly outweighed by its prejudicial impact (Rule 403). In the UK, section 78 of The Police and Criminal Evidence Act of 1984 gives judges similar discretion. Although there are other grounds upon which to limit or exclude rap music as evidence – namely, by arguing that it is not relevant in the first place (Owusu-Bempah Reference Owusu-Bempah2022) or, in the US, that introducing it infringes on First Amendment protections – the most successful strategies have centred on its potentially inflammatory impact on a jury. And for good reason. As a growing body of empirical research has demonstrated, rap music can be highly prejudicial, which is why keeping it out of the courtroom altogether is often in a defendant's best interest. When arguing for exclusion, either in a pre-trial motion filed by an attorney or in a report solicited from an expert, there are a few studies in particular worth citing.

Among the most important is Carrie B. Fried's Reference Fried1999 study, titled ‘Who's Afraid of Rap: Differential Reactions to Music Lyrics’. For this study, Fried devised an experiment in which she compared people's reactions to rap vs. country music. To do this, she presented two groups of people with an identical set of violent lyrics, taken from a song called ‘Bad Man's Blunder’ by the Kingston Trio, a folk/pop band that began recording in the 1950s. The lyrics included passages like this:

Fried removed all information related to the song's title or genre, so participants in the study had only the lyrics to consider. One group was told the lyrics came from a country song, while the other was told those exact same lyrics came from a rap song. Fried then measured their reactions and, as she hypothesised, found that responses were significantly more negative when the lyrics were represented as rap, revealing, to quote Fried herself, that ‘[t]he same lyrical passage that is acceptable as a country song is dangerous and offensive when identified as a rap song’ (pp. 715–16). She emphasises an important racial dimension, too. Whereas country music is traditionally associated with white performers, rap ‘primes the negative culturally held stereotype of urban Blacks’ (p. 716).

Notably, this study was replicated in 2016 by researchers at UC Irvine, and almost 20 years later, their results matched Fried's. As the researchers noted, ‘participants deemed the exact same lyrics to be more offensive, in greater need of regulation, and more literal when characterised as rap compared with country’ (p. 88, emphasis added).

Fried's study is just one example of research examining people's differential responses to rap music when compared with other genres or artists. Other studies have examined the way rap music is portrayed in the media compared with heavy metal (Binder Reference Binder1993), the way fans of rap vs. heavy metal are perceived (Fried, Reference Fried2003), the way lyrics are judged when participants believe they come from a rap, country or heavy metal song (Dunbar and Kubrin Reference Dunbar and Kubrin2018), and the way violent lyrics are perceived if the artist is presented as black vs. white (Fried Reference Fried1996). All of these studies tell a similar story: rap artists and fans are seen as more threatening than those from other, traditionally white, genres.

Fischoff (Reference Fischoff1999) reveals that these perceptions and the stereotypes underlying them can have a profound impact in a courtroom. To demonstrate this, he designed a study in which participants were separated into four different groups and presented with biographical information about a hypothetical African American male. The amount of information each group was given varied. For example, only some groups were told that this hypothetical man was on trial, accused of murder and/or that he was the author of violent rap lyrics. Participants who were told about the lyrics were also shown samples.

Fischoff then asked all participants about their perceptions regarding the young man's personality. For starters, he found that rap lyrics significantly prejudiced participants, which meant, among other things, that participants who read the lyrics were significantly more likely to think the man was capable of committing murder. What's more – and here's the most surprising part – Fischoff found that exposure to the lyrics evoked a negative reaction that was more intense than the reaction to being told the young man was on trial for murder.

Taken together, the studies examining people's response to rap reveal that rap music and the people who create it are viewed as more dangerous and threatening than traditionally white genres. This is probably the most important argument for excluding rap lyrics altogether, and even if it is unsuccessful at the trial level, it preserves the issue on appeal. In the US, most appellate courts have been unwilling to reverse a decision based on the improper use of rap music as evidence. However, there have been some high-profile exceptions, including in Massachusetts (Com. v. Gray, 463 Mass. 731 (2012)), New Jersey (State v. Skinner, 95 A.3d 236 (2014)), Maryland (Hannah v. State, 23 A.3d 192 (2011)) and Mississippi (Brooks v. State, 903 So. 2d 691 (Miss. 2005)), where those states’ highest courts reversed lower court decisions, ruling that the use of rap lyrics or videos as evidence was improper. Notably, all of those decisions focused on the prejudicial nature of the evidence relative to its probative value.

These decisions notwithstanding, the reality is that if the state introduces rap music as evidence, it is likely to be admitted over the objections of defence counsel, so the next stage of preparation from an expert perspective is to prepare for trial. This may include assisting the defence attorney(s) with jury selection, offering sample materials that other attorneys have used in similar cases, suggesting questions that a defence attorney might ask of the State expert (usually a police officer) on cross examination, and of course working through the best line of questioning on direct examination and the most effective ways to respond to cross examination.

Expert vs. advocate

My role as an expert witness came about somewhat accidentally. Since 2011, I have been writing publicly about the (mis)use of rap lyrics as evidence, in both popular and scholarly venues (see, for example, Nielson Reference Nielson2014; Kubrin and Nielson Reference Kubrin and Nielson2014). This work increasingly put me in contact with practising attorneys, some of whom I contacted directly for my research, and some of whom reached out to me after reading my public writing on the subject. In the course of these conversations, attorneys began to ask if I would serve as an expert witness, and once I began doing so, word spread within the legal community. I was not the only person in the US serving as an expert, but I was the one doing it in the most public way, writing about my experiences and discussing them in interviews with national media outlets.

As a result, some attorneys were eager for me to use my media platform to draw attention to their clients’ cases to put pressure on prosecutors (and also, I suspect, to raise their own profiles as defence attorneys). Some experts may be reticent to do this for fear that talking in critical terms about an ongoing case may compromise the appearance of objectivity – or at least open the door for prosecutors to do so. And it is certainly true that the sheer volume of public work I've done on the issue, much of it knowingly provocative, has led prosecutors to attempt to portray me as something of a zealot. Yet the question is whether the benefits of exposure and public advocacy outweigh the risks associated with it. And there's no clear answer.

In one case, the 2014 trial of Newport New, Virginia, rapper Antwain Steward, it clearly helped. Steward, who rapped under the name Twain Gotti, was arrested and charged for his alleged role in an unsolved double murder. Police and prosecutors indicated that one of his rap videos led them to pursue him as a suspect, and they later signalled that the video would play a significant role at trial (Speed Reference Speed2013). In response, and in coordination with his attorney, I waged a media campaign with the goal of raising public pressure on the prosecution. By the time the trial was set to begin, reporters from major media outlets, including in the US and abroad, were covering the case and peppering the prosecutor's office with requests for comment. PBS NewsHour, a major American news show, arrived with cameras (PBS 2014).

I was in a hotel room near the courthouse preparing to testify, when I got a call from Steward's attorney – the prosecutors had blinked and, at the last moment, decided not to introduce the video at trial. According to his attorney, they had succumbed to the public pressure. Then a few days later, I learned that without the video to bolster their case, prosecutors were handed a defeat. Although he was found guilty of a lesser gun-related charge, Steward was acquitted of both murders.

For the flip side of the coin, consider the case that opens this paper, that of Darrell Caldwell, also known as Drakeo the Ruler. Before and during his trial, I worked with his attorney on a similar media campaign intended to put pressure on prosecutors. As part of that campaign, journalist Jeff Weiss, who was covering the trial, released a scathing story, titled ‘Stabbing, lies, and a twisted detective: inside the murder trial of Drakeo the Ruler’, that took aim at the prosecutors and lead detective on the case (Weiss Reference Weiss2019). After a near-total acquittal, prosecutors in general are unlikely to re-file charges on any lesser counts that are hung, especially if they are hung in the defendant's favour (meaning that most jurors voted in favour of acquittal) as in Caldwell's case. But Los Angeles County prosecutors, who were furious about the story, did re-file, and only because the sitting District Attorney lost her re-election bid to a far more progressive opponent was Caldwell ultimately spared a second trial. When asked what motivated prosecutors to re-file initially, Drakeo's attorney, John Hamasaki, said, ‘Part of what I see underlying this re-prosecution is actually an article written by Jeff Weiss in Fader … I get the sense that [police and prosecutors] were really badly embarrassed by that article. They lost in a very public way at trial’ (No Jumper 2019).

The Steward and Caldwell cases reveal the potential benefits, but also the potential perils, of using the media to raise public awareness about ongoing cases. It should go without saying that the final decision about whether to engage the media or not should rest with the attorneys. Yet an expert has a decision to make as well about his or her public presence in the first place. Engaging in public scholarship or advocacy around an issue – in this case, arguing against the use of rap lyrics as evidence – may feel uncomfortably subjective. But, as an analogy, would we view an expert witness in forensics who found eyewitness testimony to be unreliable – and who shared that view publicly – as biased and therefore unreliable? I'd hope not.

That's because as scholars intervening in a criminal justice system that is undeniably racist and unjust, our work should be motivated by the desire to change that system. That is nearly impossible to achieve if we attempt to maintain a posture of neutrality at the expense of meaningful action. As W.E.B. DuBois (Reference DuBois2007) recollected in his autobiography, he eventually came to the realisation that the stakes were too high, the injustices too great, to remain objective: ‘one could not be a calm, cool, and detached scientist while Negroes were lynched, murdered and starved’ (p. 34). The imperative to take action, to measure our work in terms of demonstrable outcomes, demands that we acknowledge the importance of advocacy in our scholarship, even though, as I have described here, doing so presents its own risks and challenges. While each expert-advocate will be be forced to navigate these, I hope I have shown that the potential for this work to have real impact, to change lives, necessitates that we do so.