Rhyme and Reason: How Intellectual Property Can Inform the Use of Rap Lyrics as Evidence in Criminal Trials

Abstract

Over the past two decades, the use of rap lyrics as evidence in criminal prosecutions in the United States has become increasingly common. The introduction of these rap lyrics into evidence proves uniquely problematic and dangerous, specifically for Black and Latino boys and men who already face systemic oppression, bias, and incarceration. Common objections to the use of these rap lyrics as evidence include a First Amendment Constitutional argument, as well as those grounded in existing evidence rules. Proposed solutions are also divergent and include: the categorical exclusion of rap lyrics as evidence, the mandated use of expert witnesses to dissect the rap lyrics in the context of the genre more generally, and the lyrics’ admission only when they explicitly discuss the crime at issue at trial. However, because this is such a new and evolving area of the law, what these solutions often lack is solid doctrinal foundations, which make it harder for consistent legislation and adjudications to follow.

This Note proposes two solutions for the admission of rap lyrics as evidence grounded in two existing Intellectual Property (“IP”) frameworks. The first solution addresses, as a threshold matter, how to determine whether rap lyrics in any given case should be admissible at all. Borrowing from trademark law’s spectrum of distinctiveness, this Note creates a similar spectrum of distinctiveness based on the proximity of the rap lyrics to the specific crime at issue in the trial. This spectrum of distinctiveness in many ways encompasses the evidence rule against unfair prejudice and should be used by judges, who themselves are subject to implicit biases and are not qualified to dissect rap lyrics. Second, for situations where rap lyrics are deemed admissible, this Note propose a solution that requires judges to, at the defendant’s request, either (1) provide a court-appointed expert to testify and contextualize the lyrics or (2) allow the defense to bring forth their own expert witness. This solution is based on a cautionary tale from copyright law: the infringement by reproduction doctrine, famously and confusingly codified in the 2nd Circuit case of Arnstein v. Porter. The Arnstein court’s categorical exclusion of expert testimony during the improper appropriation stage of analysis, relying instead on the response of the ordinary lay hearer (i.e., the jury) is “universally repudiated” by legal copyright scholars. Thus, especially when transferred to the criminal context where the stakes are much higher, the aftermath of Arnstein emphasizes the importance of always permitting, and perhaps even mandating, the use of expert testimony.