EDNY Ruling Charts 99 Problems In Rap Lyric Admissibility

A recent decision from the U.S. District Court for the Eastern District of New York signals a trend toward increased scrutiny of prosecutors’ efforts to admit rap lyrics as evidence of guilt in federal criminal trials.

On Jan. 30, in U.S. v. Jordan, U.S. District Judge LaShann DeArcy Hall denied the government’s motion to introduce at trial videos depicting the defendant, Karl Jordan Jr., rapping and giving related interviews.

Jordan was charged with the murder of rap artist Jason Mizell, known as Jam Master Jay — the DJ of Run-DMC — and related narcotics trafficking and firearm counts.[1]

For decades, prosecutors have sought to admit rap videos and lyrics in criminal trials — and have often succeeded. In recent years, however, courts have expressed growing concern about allowing rap lyrics and videos to be used against criminal defendants.

Judge DeArcy Hall’s thoughtful decision in Jordan situates this legal issue against the backdrop of hip-hop’s rise to prominence in popular culture and the increasing judicial skepticism about the admissibility of rap lyrics in criminal trials.

The Historical Landscape

Historically, cases considering the admissibility of rap lyrics and videos have focused their analysis on the balancing test set forth in Federal Rule of Evidence 403, which states that courts may exclude relevant evidence if its probative value is substantially outweighed by its risk of unfair prejudice, among other factors.

Some courts have admitted rap lyrics because their content had a factual nexus to the charged conduct, such that its probative value was not outweighed by unfair prejudice. Others have excluded rap videos or lyrics as too tenuously connected to the charged conduct, or too inflammatory, for their probative value to outweigh the risk of unfair prejudice.

Courts have also expressed concern that admitting rap lyrics — especially those referencing violence, drugs or other criminal conduct — is in tension with Federal Rule of Evidence 404’s limits on character evidence and prior bad acts evidence.[2]

In U.S. v. Pierce, the U.S. Court of Appeals for the Second Circuit in 2015 affirmed the admission of a rap video, holding that the government’s use of the song’s lyrics was permissible to establish the defendant’s association with members of the charged enterprise and motive.[3]

According to the government’s cooperating witness, the use of “YG” in the lyrics referred to a feud with the rival “Young Gunnaz” gang. From this testimony, the circuit court determined, the lyrics were “relevant, [and] their probative value was not outweighed by the danger of unfair prejudice.”[4]

Since Pierce, several district courts in this circuit have admitted rap videos or lyrics as trial evidence where the specific content mirrored aspects of the alleged crime.[5]

For example, in U.S. v. Carpenter, the Eastern District of New York held in 2019 that some of the defendant’s rap videos were admissible. One video depicted the defendant holding a gun, which was allegedly the same weapon recovered when he was arrested. Another showed the defendant stating in an interview that “[he had] been through,” seen and done “every single thing [he] talk[ed] about” in his music.[6]

In other cases, courts have carefully reviewed lyrics and admitted only those that resembled the charged conduct.[7]

Beyond the Second Circuit, appellate courts have taken a similar approach. Those circuits that have upheld the admission of rap videos or lyrics have cited similarities between their content and the charged conduct.[8]

At least two circuits have warned trial judges against admitting videos or lyrics with only tenuous connections to the charged conduct[9] — even where the lyrics at issue bore arguably greater factual similarity to the charged conduct than in Pierce.

For example, in U.S. v. Gamory, the U.S. Court of Appeals for the Eleventh Circuit in 2011 found error where “the lyrics referred to [the defendant], a white crib, a Range Rover, drugs and Hush Money and … the artist in the video … wore a necklace with a ‘JB’ insignia that was similar to cuff links seized during the search of [the defendant’s] residence.”[10]

The Eleventh Circuit held that those references were “not clearly probative of [the defendant’s] guilt,” and that the video’s depictions of “violence, profanity, sex, promiscuity, and misogyny” were “heavily prejudicial,” though the court ultimately held the erroneous admission was harmless.[11]

Likewise, some state supreme courts have expressed skepticism about the admissibility of rap lyrics or videos, for the same reasons.[12]

In analyzing lyrics under a state evidentiary rule in its 2014 ruling in State v. Skinner, for example, the Supreme Court of New Jersey determined “the prejudicial effect of … graphically violent rap lyrics overwhelms any probative value that they may have” — which, it added, was “little to no[ne],” because “one cannot presume” that defendants acted in accordance with views expressed “in fictional or other forms of artistic self-expressive endeavors.”[13]

Rising Concerns About Admitting Rap Lyrics

In the last decade, district courts have signaled increasing skepticism about admitting rap videos and lyrics as evidence in criminal trials. Although courts have continued to apply the same legal standard, judges appear to be demanding a closer factual connection between the video or lyrics and the alleged conduct.

Moreover, these decisions, which come from districts across the country, reflect increased engagement with the implications of treating hip-hop, specifically, as evidence of guilt.

Some have expressed concern that the risk of unfair prejudice is too great because rap, as a genre, “frequently features aggressive and hyperbolic language,” as the U.S. District Court for the District of Connecticut articulated in its 2022 decision in U.S. v. Wiley.[14]

Others also underscore, as a basis for exclusion, how documented prejudices[15] “about the genre and those who create rap music — typically young men of color — may influence how police, judges, and jurors interpret rap lyrics” and heighten the risk of unfair prejudice, the Connecticut court wrote in its 2023 decision in U.S.v. Donald.[16]

Some courts have pointed out that a double standard may be at play. As the U.S. District Court for the Eastern District of Pennsylvania noted in its 2021 Bey-Cousin v. Powell ruling, artists have long used the fictionalized first person as a mode for artistic storytelling, but no one thought that Freddie Mercury confessed “to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘pull[ing] the trigger,'” that Bob Marley confessed “to having shot a sheriff,” or that Johnny Cash confessed “to shooting ‘a man in Reno just to watch him die.'”[17]

As this jurisprudence has developed, support for legislation curbing the admission of rap lyrics has also increased, at both state[18] and federal[19] levels.

Artists, record labels, and streaming services are also organizing to protect their right to creative expression, without fear of incrimination. Among others, companies including Warner Music Group Corp., Sony Music Entertainment Inc., Spotify Technology SA, TikTok Inc. and YouTube Music, and famed artists such as Drake, Megan Thee Stallion, Post Malone, 21 Savage, Quavo, and Takeoff, now deceased, signed onto an open letter urging an end to the use of art as trial evidence.[20]

An online public petition reiterating the letter’s content verbatim has garnered almost 95,000 signatures.[21]

The Jordan Opinion

Jordan builds on this trend and situates the legal issue in the broader history of hip-hop’s rise.

In moving to admit the videos featuring Jordan, the government argued that the lyrics in a song and associated music video titled “Aim for the Head” were consistent with the facts of the case, because a headshot wound killed Mizell.[22]

The government likewise argued that a video and song called “Silver Spoon” was relevant because it discussed drug trafficking activity similar to the alleged drug transaction that precipitated the murder.[23]

Jordan countered that the videos had only a tenuous connection to the case and posed a significant risk of unfair prejudice.[24]

Like other courts, Jordan frames the issue as a question of whether there was “a specific factual nexus between the content of rap music and the crimes alleged.”[25]

But the decision’s analysis is informed by its thorough — and musically knowledgeable — explanation of rap’s rise as a form of sociopolitical commentary, protest, self-expression and storytelling.[26]

Jordan’s historical focus thus sharpens the concerns that other courts have raised. It notes that rap has always been “fundamentally an art form that traffics in hyperbole, parody, kitsch, dramatic license, double entendres, signification, and other literary and artistic conventions to get [its] point across.”[27]

It discusses how the themes in gangsta rap — including references to violence and drug-dealing — create “a portal for others to see into America’s urban centers.”[28] And it demonstrates how commercialization has altered rap artists’ incentives, pushing them “to create music about drugs and violence to gain commercial success, and [to] exaggerate or fabricate the contents of their music in pursuit of that success.”[29]

This context is essential to understanding why — absent a close nexus to the facts of a case — generalized lyrics about violence and criminality have diminished probative value and risk unfair prejudice.

Given this context, the court in Jordan concludes, “Aim for the Head” lacks a sufficiently specific factual nexus, or close enough temporal proximity, to the alleged murder.[30] Instead, its “lyrics merely contain generic references to violence that can be found in many rap songs.”[31]

As to “Silver Spoon,” its reference to “breaking down bricks,” the decision notes, is frequent in popular rap music.[32] And, more importantly, the action of “breaking down bricks” has no “specific nexus to the underlying offense conduct alleged in this case,” and was “too imprecise” to be sufficiently probative.[33]

Looking Ahead

Jordan succinctly, but powerfully, captures central concerns motivating closer scrutiny of admitting rap music and videos in criminal trials. These concerns have increased in importance as the commercialization of rap music intensifies artists’ economic incentives to embrace fictional narratives, while jurors may continue to possess preexisting prejudices about the genre.[34]

Jordan is also innovative in its approach to analyzing the factual nexus between any rap-related evidence and the charged conduct. Through its engagement with hip-hop history, the decision examines lyrics that, at first blush, appear to relate to the conduct at issue, but in fact are common themes in rap music and culture.

Of course, not all judges may have the deep knowledge on display in the Jordan opinion. Practitioners would therefore be well advised to equip courts with the information necessary to engage in this more discerning analysis.

Defense counsel should take affirmative steps to acquaint themselves with their clients’ cultural contexts and be prepared to cite specific comparators to prove their clients’ lyrics merely echo common hip-hop themes.[35]

Prosecutors should similarly be wary of concluding that a defendant’s words, however evocative, amount to a confession.

And where their knowledge falls short, practitioners should consider having expert witnesses explain hip-hop’s motifs and literary devices to judges and juries. This approach has been successful in at least one case, People v. Ortiz in the San Francisco County Superior Court, where a hip-hop expert explained why the defendant’s hand sign referred to his neighborhood and did not, in fact, signal gang affiliation, leading to an acquittal on murder charges in 2022.[36]

Such an approach would be equally useful in weighing the admission of new genres or media. In an age of constant creation and democratized artistic expression — when, as Judge DeArcy Hall puts it, “anyone with a cellphone and the ability to rhyme [can] publish their music with the dream of fame on the other end,”[37] — judges and lawyers should be both more informed about art and popular culture, and more skeptical of their probative value as evidence of guilt.

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Written by Noam Biale, Alison Moe, and Claire Blumenthal Buck.

This article was originally published by Law360. A link to the original article may be found here.

[1] Superseding Indictment, United States v. Jordan, No. 20 Cr. 305 (LDH), 2024 WL 343970 (E.D.N.Y. Jan. 30, 2024), Dkt. 45.

[2] See State v. Skinner , 218 N.J. 496, 517–22 (2014) (analyzing lyrics under N.J. R. Evid. 404(b)); United States v. Wiley , 610 F. Supp. 3d 440, 446–47 (D. Conn. 2022) (same, as to Fed. R. Evid. 404(b)).

[3] United States v. Pierce , 785 F.3d 832, 840–41 (2d Cir. 2015), cert. denied, 577 U.S. 890 (2015).

[4] Id. at 841.

[5] See, e.g., United States v. Carpenter , 372 F. Supp. 3d 74, 76–77 (E.D.N.Y. 2019); United States v. Herron , No. 10 Cr. 0615 (NGG), 2014 WL 1871909, at *3–5 (E.D.N.Y. May 8, 2014), aff’d, 762 F. App’x 25 (2d Cir. 2019), cert. denied 141 S. Ct. 2605 (2021).

[6] Carpenter, 372 F. Supp. at 77.

[7] See Wiley, 610 F. Supp. 3d at 446 (same, refusing to admit “vague [lyrics] about [the defendant’s] youthful origins in drug trafficking, i.e., prior bad acts” as “irrelevant”).

[8] See, e.g., United States v. Moore , 639 F.3d 443, 448 (8th Cir. 2011); United States v. Stuckey , 253 F. App’x 468, 482–83 (6th Cir. 2007); United States v. Foster , 939 F.2d 445, 456 (7th Cir. 1991).

[9] See United States v. Gamory , 635 F.3d 480, 492–95 (11th Cir. 2011), cert. denied, 565 U.S. 1080 (2011); Boyd v. City and County of San Francisco , 576 F.3d 938, 949–51 (9th Cir. 2009) (admission of rap lyrics in § 1983 suit).

[10] Gamory, 635 F.3d at 493. The Eleventh Circuit, however, determined this error was harmless. See id. at 494.

[11] Id. at 493.

[12] Skinner, 218 N.J. at 517–25; see, e.g., Hannah v. State , 420 Md. 339, 347, 355–57 (2011) (error to admit lyrics and permit related cross-examination); State v. Cheeseboro , 346 S.C. 526, 549–50 (2001) (error to admit, but harmless).

[13] Skinner, 218 N.J. at 521–22. Although Skinner addressed a challenge to the lyrics under a New Jersey analogue to Federal Rule of Evidence 404(b)—rather than 403(a)—its concerns about the authenticity of views expressed in artwork apply here.

[14] Wiley, 610 F. Supp. 3d 440, 445; see, e.g., United States v. Donald , No. 21 Cr. 8 (VAB), 2023 WL 6958797, at *21 (D. Conn. Oct. 20, 2023); United States v. Williams , 663 F. Supp. 3d 1085, 1134–35 (D. Ariz. 2023); United States v. Stephenson , 550 F. Supp. 3d 1246, 1253–55 (M.D. Fla. 2021); United States v. Johnson , 469 F. Supp. 3d 193, 222 (S.D.N.Y. 2019); United States v. Williams , No. 13 Cr. 0764 (WHO), 2017 WL 4310712, at *7 (N.D. Cal. Sept. 28, 2017); United States v. Bey , No. 16 Cr. 290 (WB), 2017 WL 1547006, at *6–7 (E.D. Pa. Apr. 28, 2017); see also United States v. Sneed , No. 14 Cr. 0159 (MEA), 2016 WL 4191683, at *6 (M.D. Tenn. Aug. 9, 2016).

[15] Adam Dunbar, Charis E. Kubrin & Nicholas Scurich, The Threatening Nature of “Rap” Music, 22 Psych., Pub. Pol’y & L. 280, 288 (2016) (recounting results of study showing that subjects considered rap “more offensive, in greater need of regulation, and more literal” than other genres); Carrie Fried,Who’s afraid of rap? Differential reactions to music lyrics, 29J. App. Soc. Psych.705, 707 (1999) (“One reason that rap music, in particular, receives negative reactions may be that it is seen as a predominantly Black form of music.”); see also Stuart Fischoff, Gangsta’ Rap and a Murder in Bakersfield, 29J. App. Soc. Psych.795, 804 (1999)(documenting experiment results capturing prejudicial effect of rap lyrics, specifically, and noting that “a White defendant who authored gangsta’ rap lyrics might be adjudged differently than a Black defendant”).

[16] Donald, 2023 WL 6958797, at *21; see, e.g., Williams, 663 F. Supp. 3d at 1134–36; Wiley, 610 F. Supp. 3d at 445–46.

[17] Bey-Cousin v. Powell , 570 F. Supp. 3d 251, 255 (E.D. Pa. 2021) (internal citations omitted).

[18] Recently, Louisiana and California enacted legislation limiting the admissibility of rap lyrics as evidence. See La. Code. Evid. Ann. art. 404(B) (2023); La. Code. Evid. Ann. art. 404(B) (2023). The New York State Senate is poised to vote on similar legislation later this term. See Senate Bill S1738 (2023–2024), https://www.nysenate.gov/legislation/bills/2023/S1738 (last accessed Feb. 5, 2024).

[19] RAP Act of 2023, H.R.2952, 118th Cong. (2023), https://www.congress.gov/bill/118th-congress/house-bill/2952; Restoring Artistic Protection Act of 2022, H.R.8531, 117th Cong. (2022), https://www.congress.gov/bill/117th-congress/house-bill/8531.

[20] “Art on Trial: Protect Black Art,” https://www.protectblackart.co/ (last accessed Feb. 7, 2024); see Alejandra Gularte, “Megan Thee Stallion, Drake, and More Sign Open Letter to Protest Uinsg Rap Lyrics in Court,” Vulture.com (Nov. 2, 2022), https://www.vulture.com/2022/11/rappers-protest-using-rap-lyrics-in-court.html.

[21] https://www.change.org/p/art-on-trial-protect-black-art (last accessed Feb. 7, 2024).

[22] Government’s Motion in Limine, Jordan, No. 20 Cr. 305 (LDH), 2024 WL 343970, Dkt. 113 at 37–38.

[23] Id.

[24] Opposition to the Government’s Motion in Limine, Jordan, No. 20 Cr. 305 (LDH), 2024 WL 343970, Dkt. 121 at 19–23.

[25] Jordan, 2024 WL 343970, at *4.

[26] Id., at *1–3.

[27] Id. at *3 (emphasis in original).

[28] Id. at *2.

[29] Id. at *3.

[30] Id. at *5.

[31] Id. at *5–6 (collecting examples).

[32] Id.at *6.

[33] Id.

[34] Andrea L. Dennis, Poetic (in)justice? Rap Music Lyrics As Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1, 18 (2007) (“Thus, the mainstream public generally perceives that creators and consumers of rap music condone and/or engage in violent, deviant, and criminal behavior.”).

[35] The University of California, Irvine IP, Arts & Tech Clinic has created a series of useful resource for attorneys, including a legal guide, brief bank, and case compendium. See Rap on Trial, https://ipat.law.uci.edu/endrapontrial/ (last accessed Feb. 7, 2024).

[36] Marcus White, “S.F. jury acquits man of murder 18 months after trial deadline,” San Francisco Examiner (Sept. 22, 2022), https://www.sfexaminer.com/news/s-f-jury-acquits-man-of-murder-18-months-after-trial-deadline/article_c7afac50-3a9e-11ed-91ea-13e8cbf2c373.html. In addition to admitting the contested rap videos, Judge Garaufis also permitted testimony from a defense expert who had written extensively on hip-hop culture, themes, and narratives in Herron. 2014 WL 1871909, at *7–8.

[37] Jordan, 2024 WL 343970, at *3; see also Dawson v. Delaware, 503 U.S. 159, 168 (1992) (First Amendment bars admission of evidence of defendant’s abstract beliefs at sentencing hearing, where those beliefs have no bearing on issue being tried).