Rap on Trial

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: Hello and welcome to Opening Arguments. This is episode 1055. I'm Thomas Smith. That over there is real-life attorney and at home. Are you back or no?

0:00:56 Matt: In the office and very happy to be with you.

0:00:57 Thomas: Matt Cameron back at last. It's like you were never gone though.

0:01:03 Matt: Yep, back to work. I had a great July, but looking for an even better August. Let's do it.

0:01:08 Thomas: Yeah, and, uh, this was, as we noted last time, the episode that got pushed because there's, uh, 'twas a little bit of news last week. Can you believe it's been one week, man, since it's, it's been one, one calendar week, one fiscal, uh, I was gonna say metric week, but we don't use the metric system. So yeah, since Biden dropped out, it really feels like it's been months. It's crazy. But anyway, not talking about that today, that pushed off this episode, but I am so excited to finally get to this one because this is really fascinating. Perhaps a wee bit inspired by current trials that we've talked about on trial. So Charis Kubrin is a professor of criminology at UC Irvine. And she has actually a TED Talk that went super viral several years ago. But also she's done so much work about rap on trial, about this phenomenon, pattern of prosecutors using rap, rap lyrics, to try to put people in jail in incredibly inappropriate and I'll just say it, racist ways.

0:01:25 Matt: Yeah. It's one metric presidential campaign.

0:02:21 Matt: Yeah, and she's actually created a guide for attorneys. There's nothing like it, as far as I know. Co-authored with attorney Jack Lerner. And we'll talk to her a little bit about that, as well as just kind of how she got into this very unique specialty, specialty of being able to testify as an expert witness about rap lyrics. Pretty cool thing.

0:02:35 Thomas: And the whole interview is a rap. So hit it, Matt, with the... No, that

0:02:40 Matt: I'm not beatboxing. You're not making me do it.

0:02:42 Thomas: Would be so awful.

0:02:44 Matt: Yes, it would.

0:02:47 Thomas: Don't worry, we're not doing that. No, it's really You know, this was one of those interviews where I was like, well, much not editing to do there, which is like the highest compliment I can pay a human being.

0:02:54 Matt: Yeah, that's right.

0:02:56 Thomas: Actually, it's better than any other quality that anyone can have. Mr. Rogers. I don't know. He's OK. But how much editing do you have to do on him when he comes on your podcast? You know, like, yeah, greatest miscarriage of justice that that execution or whatever. Wait, does he execute it? I think so. Anyway.

0:03:08 Matt: You know, that Ted Bundy, he could do it in one take. Yeah.

0:03:18 Thomas: No jokes aside, this was phenomenal. I can't wait for you all to hear it. So after this break, which you can avoid at patreon.com/law. We'll get to this interview. Oh, and big news over at patreon.com/gavelpod. have two parts out for you. Two parter out on Michael Cohen. Finally, Eli Bosnick as Michael Cohen, it was a behemoth. So it took me a while to edit, but I have that out tonight as we speak.

0:03:44 Matt: Best voice acting that we've had yet, for sure.

0:03:45 Thomas: So good. And just so much good testimony. It's really, really fantastic. I know the Trump trial may feel like a distant memory, but you folks want to hear Michael Cohen's testimony by Eli Bosnick. It's fantastic. And it only gets better. There's more from there. We're going to have more gavel pod coming to you before the end of the month. Perhaps wink, wink, nudge, nudge, the Alec Baldwin thing that happened will be what we will cover. All right. Well, announcements aside, let's get on over to the interview.

0:04:17 Matt: Word. Come on, I can get away with that.

0:04:30 Thomas: Charis Kubrin. How are you doing?

0:04:32 Charis: I'm delighted to be here. Thanks for having me.

0:04:35 Thomas: Yeah. So just to get this right out of the way, part of the reason we wanted to have you on and talk about this subject is the Young Thug Trial, but that is something that you cannot talk about.

0:04:48 Charis: Much to say, unable to say it. Yes.

0:04:50 Thomas: Okay. Just wanted to cover that because I'm sure we would get questions, but there's so much to talk about without covering that. First wanted to just kind of ask how you got into this, I don't know what to call it, this kind of connection, this sort of what, this connection of two things, law and of rap music. Do you want to tell us a little bit about your background and your history there?

0:05:12 Charis: Sure. Yeah. And it's so many things. It's law, it's criminal justice, it's race, ethnicity, it first amendment. I mean, it all so many different things. But I first got involved, it was back in 2011. I got contacted by a defense attorney who had a client who was an aspiring rapper whose rap lyrics were being used against him, claiming that the lyrics were so violent and threatening that communicating a terrorist threat through his lyrics.

I won't go into the details of that case, but I got asked to be an expert witness in this case because this attorney wanted me to do a content analysis of this young man's raps. He had lots and lots and lot of raps, as an aspiring rapper would, notebooks filled with with them.

Basically this attorney was interested in me doing a analysis of these lyrics to determine the extent to which I thought they represented some larger terrorist threat or were simply the stuff of rap, which is exactly what I concluded, which is that they were the stuff of rap. And there was a big misunderstanding here. So jury didn't agree. He was found guilty later through the appeals process. But that was 2011. Then, I've been involved in dozens of cases all over the United States, testified in many, done research, TED Talk, a legal guide, trainings for defense attorneys. It's been a lot in few short years.

0:05:16 Thomas: Right. Yeah. Yeah.

0:06:37 Thomas: So you're telling me it's having more than just that one time, huh?

0:06:37 Matt: How

0:06:41 Charis: Imagine that. The funny thing is, is when I did get asked to do this the first time, I thought, this is so bizarre. First of all, I had never been an expert witness, so I didn't really even know what that meant. Then also the case was so unique, I thought wow, what a one -off. And boy, was that.

0:06:42 Thomas: Oh,

0:06:58 Matt: Expert witnesses like you are there out there? Evade

0:07:00 Charis: They're growing in this area because this is becoming such a concerning issue over time. I mean, I know and work with several and have over the years. And I've had students of mine that have done their dissertations with me, Adam Dunbar, who's now a professor who himself is testifying all the country. So there's, it's growing in number, even as this is, what you would think kind of a relatively niche area. Unfortunately, it's a very effective tactic that prosecutors are using, which means that it's caught on and there's guides out there for how to use rap lyrics. If you're an attorney wanting to prosecute young men of color.

0:07:37 Thomas: No. There's the anti -you. There's like the inverse you out there writing the how to do bad things guide.

0:07:43 Charis: We Lerner and I, Jack Lerder at UCI Law, and I created our legal guide in response to a guide that we came across on the internet promoting the use of rap lyrics. And so, yeah, that was out there for a while. It was actually a gang prosecution manual and a former district attorney talking about a number of ways to prosecute gang cases. But in one section of it, there's discussion about rap lyrics being used. And the quote from the guide that really stuck out to Jack and I was in order to quote, invade and exploit the true true personality of the defendant?

0:07:55 Thomas: Oh, my gosh.

0:08:22 Thomas: Yeah.

0:08:23 Matt: And exploit.

0:08:23 Thomas: Yeah. Okay. Okay. I can't help but ask this because you mentioned that one he did, it's like, hey, come do a content analysis. And now I'm an expert witness and there's all that. And the thing I can't help but think is this might make sense in a world where there are terrorists among us and there are rap not terrorists. And then you're the expert in a like Dan Brown novel who comes in and analyzes the runes and, you know, and is doing all this work to be like, ah, now it's a 50-50 shot. I believe this is one of the not terrorist ones. Then that would kind of make sense. You'd be like, okay, cool, you're an expert. Is the expertise just being like this doesn't exist, you know, like, what, how is this a weird question? Like, is what, what content analysis yeah it

0:08:23 Matt: Wow.

0:08:41 Charis: Yeah, no, it's not a weird question. And I get this all the time. So, you know, think is happening in these cases is that prosecutors are convincing judges and juries that rap, it sort of denying rap the status of art, denying the fact that it has has artistic conventions, and all kinds of norms that exist in order to say rap equals reality, in order To say what you hear in rap music, and what you see in rap videos is autobiographical, and it's the truth.

And for people that know and listen to rap music like it sounds like you both both do, I do, sort of young people in general, it's laughable because claiming that rappers are doing the stuff they're saying in their raps, when I testify, I say, if rappers were doing one -tenth of what they say they're doing in their wraps, we'd be in really big trouble, right? There are artistic conventions. These artistic conventions encourage rappers to be edgy and provocative, to issue threats.

They claim that they're keeping it real. All of the conventions, conventions, that unfortunately will get left out of the courtroom unless experts or those that are knowledgeable about music bring it in. And that's really, you know, I don't know whether these folks are guilty. I don'T know what other evidence exists in the trial.

I'm not there to say guilty, not guilty .I'm simply there to give tools to the jury to say, before you just go ahead and assume that what you're seeing in this video is happening in real life, please understand these or the conventions.

0:09:10 Thomas: Also

0:10:41 Matt: Yeah, so the thing I was really interested in when I was looking into your background is you're a criminologist, obviously, but you identify as a RAP scholar. I just want to know kind of where does that come from?

0:10:48 Charis: I would like to clean the record on that because that is not something I would ever self -identify as, at least not willingly. Is, as you know, to testify, you have to be qualified in a certain area. And so that seems to be the label that is given. I mean, it's such an odd area of expertise.

0:10:52 Matt: Okay. Okay.

0:11:09 Matt: It is.

0:11:10 Charis: Yeah. And it wasn't really an issue until these cases has started proliferating.

0:11:15 Thomas: Feels like a title you should only be awarded in a rap song, like it should

0:11:19 Charis: Just, I just don't really feel worthy of the title. Also, I've been in cases where I've, I'm being introduced as an expert in that area. And there's chuckles in the courtroom, because if you've seen me, I am nothing like what you would imagine a quote unquote rap expert looks like. But hey, I'm just there to share the research that I've done over the years that I and others have done to inform jurors so they can make sound decisions. That's it.

0:11:19 Thomas: Yeah. Yeah.

0:11:45 Matt: Well, Just interested as an English major, I gues. So do Obviously you do have, like, an actual degree in criminology, but you just really enjoy rap, you just listen to a lot of it, how did you get into this, you

0:11:49 Charis: Right. That's fair. And I didn't say much about my content analysis. So when I was doing my dissertation at the University of Washington back in the 90s, I was really interested in leading social theories of crime and violence and society that I was learning about in my grad classes. Then I'd be listening to hip hop just for fun or out at a club.

And I'd been noticing linkages between what I was studying in graduate school and what I I was hearing from at that time, because this is the nineties, you know, Biggie Smalls and Dre and, and that, crew. And I was saying to myself, wow, how interesting that a lot of what I'm reading about is being echoed in these lyrics. And then I went to my advisor and said, I'd love to do a dissertation that analyzes the theories in the context of these rap songs.

And he looked at me and said not, if you want to get a job, you won't because this was the time when rap was was coming up. It was new. People didn't quite know the impact it was going to have. And it was very niche. There weren't whole studies of the field like there is now. So I did something else. I did a traditional quantitative dissertation. I have lots of other areas of research.

But when I got my first job as an assistant professor at George Washington in D.C., I said, damn it, I want to do this study because I'm interested in it. That's what led me to embark on like a three -year, four -year set of studies where I content analyzed over 400 rap music songs, analyzing a variety of themes and lyrics, everything from the violence that we commonly talked about to misogyny, nihilism, respect, you name it, problematic policing.

And I wrote a ton of papers and I decided, okay, time to move on. But in 2011, that's when when the attorney came across those papers and asked me to do a similar content analysis of his client's wraps.

0:13:39 Matt: Hadn't considered being an expert witness before that?

0:13:41 Charis: Oh, I didn't even know what it was. I mean, I'm Embarrassed to admit this, but I'm going to be honest about it. You know, he said, we need an expert witness. And I'm quickly Googling expert witness because, you know, like I said, my PhD is in sociology. My area of concentration is criminology. I knew very little about the law and legal issues. So that was just just completely new territory to me. But when he told me, what we want you to do is an analysis of the lyrics and determine if my client's lyrics are uniquely threatening or sound like what you would find in raps more generally. And that's essentially it. What I found in my analysis for that particular case, and in frankly, most of these cases, is that the lyrics are very standard. They're following the conventions of rap music. Prosecutors like to say, well, this rapper or talked about keeping it real or said, you know, I mean, just rapping about it, I'm doing it. And then I have to explain to them the convention

0:13:41 Matt: Wow. I

0:14:39 Thomas: Most

0:14:39 Charis: Of keeping it real.

0:14:40 Thomas: Rap Songs start out with, "Hey, this is all all for funsies. Not real, everybody. Okay." Anyway, murder.

0:14:47 Charis: That's one way of putting it, yes.

0:14:51 Matt: Gotta ask though, uh, top three artists, I

0:14:53 Charis: I hate that question. But at least you didn't ask me top. Well, you now, as I mentioned before, I am not exactly a brand new professor. I have been around a while. So of course I'm going to hearken back to some of the old school rap and I mean, I just, I like a lot of the Old School West Coast rap. I although do. I was a Biggie Smalls fan at heart, I think he's a lyrical genius, frankly. Um, you know, I, the song One Mic. Um I Like, I Mean it's more like songs. I mean I, my first song that I ever got interested in, what got me interested in rap music to begin with with was the message. And I

0:14:55 Matt: Knew you Would I'm With you, yeah.

0:15:29 Matt: Of course.

0:15:29 Charis: Was like, gosh, a young budding teenager then hearing this song going, wow, this is fascinating.

0:15:36 Matt: It's So good, yeah.

0:15:37 Charis: What is this? Yeah. And I remember back in the day, that was when the internet didn't exist, or it didn't exists how it does now. And l would listen and write the words out to the song. And yeah, but so I listened to it all. I like it all, I'm less familiar with the more recent stuff. That came with having having a kid and realizing not appropriate all the time.

0:15:37 Matt: What's

0:15:55 Thomas: Sure. I kind of want to ask, is there something that these prosecutors point to that's like, well, this is the case though, where there was the murder guy and he did talk about how he did the murders in the rap music. Is there something they point to like that or not?

0:16:05 Charis: Yeah. Well, what they're looking for, and sometimes they can find it. And I think it happens by chance is linkages between the lyrics and the facts of the case. And often though, they're very loose linkages. Like in other words, it's rare. In fact, I've never been involved in a a case where a rapper says, I'm going to go shoot this person outside Olive Garden at 5 p.m. with this kind of gun, and then I'm gonna go do this and go do that.

And then that in a case. What you get more often is there might be a crime that's been committed. Who's an aspiring rapper is one of many potential suspects.

Maybe they have a rap that mentions firearms and guns because rappers love to rap about guns and you know there will be like oh well this crime involved a gun and this song talks firearms or guns and I'll say yeah but the vast majority of songs glorify firearms and then I pull out my content analysis or other knowledge I have and show that this is as common as anything in these songs so that is probative of very little in my mind.

0:17:20 Matt: The heuristic for the content analysis, how does that work? I'm Not sure if I know what I mean by that. I guess I'm just curious to know how, how you, uh, like, what do you, what do YOU mean when you say content analysis? Are you looking For like a word cloud of How many Different times a word is used or

0:17:23 Charis: You mean by that? Right. Yeah. Okay. Fair enough. Yeah. A social scientist, we would say, what's your methodology on that? So, well, I sort of trained as a quantitative researcher. And so who's very interested in issues of sampling, not sampling like rap music sampling, but like your sample that you are analyzing. And so for my studies that I did, what I did was identify a roughly 10 -year period where rap was quite popular in the 90s. And then I got every single album that went platinum during that time period from the Record Industry Association of America. Then I got every single song off of all of those albums. We're talking thousands of songs.

And And then I went through and randomly selected a chunk of them, which resulted in my sample of over 400 cases. It was actually a sample of 600 cases. And then, I started coding them. Now, how did I do that? Well, this was back in the day of Napster. I was able to download a lot of these songs. Of course, I had a lot them because I listened. Friends had a a lot these albums.

What I would do is I printed up all the lyrics to every single one of these songs. I still have the binders. They're these massive binders in my office. Yeah. And I had the lyrics in front of me. I would play a song, get a sense of the entire song, the themes, the the flow, all of it. Then I would listen to it multiple times and code each line, line by line, identifying various themes I was looking for in the data.

And I had identified these themes from the theories that I was interested in. And as I mentioned before, everything from violence to problematic policing, you know, nihilism, that sort of thing. And I did this line by line for 400 and some odd, 32 songs, I believe it was. And it took years. And then I decided, well, this is my read of rap music. I think this line here represents this theme, but with someone else.

And that's when I decided to do what's called check for intercoder reliability. I hired a grad student. Coded a subset of the cases and then we compared. When I said that there was problematic policing in this set of lyrics, did she also see it? So it's just a way to check and make sure that your interpretation of things is not unique, but rather this is the general thing. And then of course, there were a lot of challenges along the way.

Like there were A lot of bad words that were were used to characterize women in rap music, as you can imagine. I found them extremely offensive, but were they intended to be that way? You know, like Too Short made an appearance, I don't know if you're familiar with the rapper Too Short, extremely talented, but quite misogynistic rapper from Northern California. And he used a lot of really misogymistic language, but it was often, he would talk about his wholesome hoes or something like that.

And I'm going now, is this this misogyny, you know, way he's characterizing women, not good. On the other hand, what's the meaning? So there was a lot of questioning around that. And I did my best to kind of address those as they came up. Sometimes I had to consult a rap dictionary online or talk to others who were much more knowledgeable about local lingo, because this was a national sample.

There was rap from Seattle and rap from the dirty South and from, of course, the East East Coast and the West Coast and, you know, so it was a lot of work, but I took it very seriously, as seriously as I could.

0:17:37 Matt: Yeah.

0:17:46 Thomas: And that was all pre ever thinking about being an expert witness and all that stuff, right? Because I imagine, I mean, I don't know what relevance the misogyny necessarily would have in some of these things is that strikes me. And Matt, you're the lawyer, but yeah, sure.

0:20:59 Charis: Yep, absolutely. Right. No, yeah, this was my internal interest. Like I said, I had these theories I was learning about, and did I know that this would lead to the expert witness work? And I tell my students, research the things you're passionate about because you never know.

0:21:12 Thomas: Yeah. So it really sounds like when you're an expert witness in of these Things, I Mean, is it really not much more than like you're an expert in explaining rap to white people? Like, is that kind of because it's there's no Because it really sounds like the job you have is, hey, this is normal for the genre, right? I mean, I'm

0:21:36 Charis: Right. Right, I mean, I'm doing a number of things. So half of it is that it's explaining rap conventions, it's putting rap in context, if you will, so educating not just jurors, who are in these cases mostly white, although not entirely, mostly older, although although not entirely. I think you're my parents, right? But judges and prosecutors and defense attorneys. So I talk about rap's history, its conventions, its themes. I talk about examples of lyrics that use these conventions.

And of course, I talk about the social and political aspects of rap music, which, you know, is useful for contextualizing the evidence in question. Because often people will be like, "Well, why do rappers say the things they say?" It doesn't make sense to them. So having some of that history and background makes the current lyrics, I think, make more sense.

And then I try and help judges and jurors understand that rap is art form, and like any other art form, it should not necessarily be taken literally. Nobody's assuming that Quentin Tarantino is doing the stuff he's making in his films, right? The other side of my testimony is then talking about rap and bias and how rap lyrics can introduce bias into the courts. And that is based on research I and others at UCI have done.

My former student, who's now a professor, Adam Dunbar, and my my colleague, Nick Scourge, we've done a series of experimental studies that show bias is produced simply by labeling violent lyrics as rap versus some other genre of music.

0:23:26 Thomas: So surprised. No way. Yeah. Do you want to go into that?

0:23:27 Charis: Right, right. Yeah, exactly. So yeah, I had come across a study in 1999 by a social psychologist named Carrie Free that was really relevant when I was preparing for the TED talk that I gave. And I thought it was fascinating. And in that experiment, she had people evaluate a set of violent lyrics. They were actually from a folk song. Okay. And they were pretty mild, but still they involved some violence. And then she randomly told some people they were country music lyrics and then other people, they were rap music lyrics. And Then she asked people to evaluate the lyrics. How threatening do you find these lyrics? How offensive should they be kept off the radio? And what she found was the very same set of lyrics identified as rap evoked more negative evaluations than those lyrics categorized as country. When I would present that as I was testifying, prosecutors would shut me right down and go, nope, sorry, that study was was done in 1999. It's 2015 or whatever year it was. Race isn't an issue anymore. Yeah, right.

0:24:30 Thomas: We're post -racism now. Yeah. Come

0:24:32 Charis: Exactly. And so that's why me and my colleagues decided to recreate the study 20 years later to see if the findings still hold. And they did. And then we extended that research by looking not just at how people evaluate the lyrics themselves, but how they evaluate the artist of those lyrics. In other words, the character of the artist. Why is that important? Because we believe that in these cases, jurors are making character evaluations about the defendant based on the fact that they are rap music artists.

0:24:41 Thomas: On. No.

0:25:06 Thomas: Yeah. Let me ask you this. Think I I'm perhaps in danger of, and I always do this, I kind of try to assume, maybe not not the best in people, but I tend to, you know, make my kind of rational explanation for what's happening. So I'm imagining like, oh, there's going to be rap songs where like there's some sort of direct linkage or evidence or like information about a crime that would tie it to it. But like, I'm starting to wonder based on what you're saying, if I'm giving prosecutors way too much credit, can you tell us some of the ways that you've, you Know, literally witnessed, I guess, them kind of using these lyrics to try to convict someone?

0:25:25 Charis: Yeah. Well, yeah. I mean, it's an important question. Should lyrics ever be used? Well, so I do believe there are probably some very, very, very small set of cases where the lyrics or the videos offer probative value. In other words, they mirror the facts of the case. They offer information that is useful to help jurors make a decision. Problem is the bias still exists. And so it goes to that question, and you all know this better than I do, of the probative values versus the prejudicial impact.

I think the prejudical impact, according to the research, is always going to be there. So the the question is, how often does that probative value outweigh the prejudicial impact? Most of the cases I'm involved in, I don't think it does. And that's because the correspondence between the prosecutor's lyrics that they're showing and the of the case are too loose for taste. So they're making claims like, you know, a simple line that we've heard hundreds of times.

The one example I use, I'm going to pop a cap in his ass. How many rappers say something along those lines? Or you best not be playing because I'm gonna do this. Or whatever the threat is that we've heard rappers say over and over and get in their songs is so common that it's not remotely uniquely threatening in the vast majority of the cases I'm involved in. So I guess, is there ever a case where the lyrics could be useful? Of course. Is far, you know, far more cases being brought in court where I think that's, that's the truth.

0:25:39 Thomas: Oh,

0:27:20 Matt: Cases you're talking about right now are the cases in which you have an artist who is on trial and their lyrics are being introduced against them. I was wondering about, because I think this has come up in your guide, in other places, uh, when, uh, sort of the presence of rap music, you know, maybe in somebody's car or in the background while crime is being committed, or like just that they're a fan of it, is That how Often does that kind of thing come in, one

0:27:38 Charis: Right? Right. Know, it hasn't. And that's what's really interesting. So like people go, well, this isn't because when I talk about this as being a uniquely rap thing, right, you don't see this for country. You don't see this for other forms of artistic expression. You don't see this in a variety of other ways. People go, well, what about heavy metal? So the interesting thing about that is, and this relates to what you were saying, is that's the kind of incitement argument that I think has been seen in the courts. There's like people are listening to heavy metal and it causes them to do this, they become a threat, you know, in This Way

0:28:12 Thomas: Yeah, It was The band they like, it's backwards and then they Want them to kill themselves because that's A good Maybe

0:28:15 Charis: Was That Black Sabbath, I Don't, you know I don't I really Don't Know a Lot about Heavy metal so I should Keep My mouth Shut

0:28:19 Matt: Of the Is that Era Yeah Yeah

0:28:18 Thomas: Yes Yeah And It's Like why would we want our paying listeners to kill themselves? That would be kind of weird, like they're a customer base, that, why would we do that? Well,

0:28:28 Charis: You know, speaking of this point, though, like my husband listens to Skinny Puppy, and I don't even all know what even that's called, like some horror kind of punk music or whatever. I can't believe some of the lyrics of these things, and it just goes totally under the radar. I mean, a lot of, in my mind, lyrics that talk about overthrowing the government and, you know, just radical kinds of things. And, um,

0:28:52 Thomas: That, what, who's the asshole, Manson, Marilyn Manson, his A Lot of his songs were basically a confession of the awful sex criminal that is, and that I've Never Heard of that being I

0:28:56 Charis: Oh, right. But yeah, in that case, and I don't know where that case stands or what's going on, but it seemed, I don'T know. I have no idea about that. Like I said, job, I continually remind myself, my job is not to determine the guilt or innocence of an an individual. And I purposefully don't know really anything else about the at hand, the facts of the case. My sole role is to provide a counter -argument to the claim by prosecutors that rap lyrics are autobiographical confessions of criminal behavior. That's what they're arguing.

0:29:06 Thomas: Don't know if There even Is A case, sure Yeah

0:29:38 Matt: I guess just, just to make sure I understand, though, I, because you aware of cases in which just Like they're Being A Fan of rap Or just being, having it, like, playing in the car, is being used against them because I've had things that touch on that in my cases. Well,

0:29:41 Charis: Oh, right. Yeah. I forgot to actually answer that. Okay. That's interesting. I'd like to hear, hear more about that, because I, I'm, haven't come across any cases like that. Oh,

0:29:55 Matt: I've also practiced in immigration court, which is the wild west, so it's A little different And

0:29:58 Charis: Yeah

0:29:58 Thomas: Yeah They Get to use anything, you

0:30:01 Matt: We don't, uh, I mean, I've heard of it, but I've never heard of more than once because I work with a lot of young Latino kids, and you know, we, we have, we don t have as much anymore, but when I started my career there were issues with ms -13 or, in this area, as there are in other places, and, um, know, I remember one particularly memorable case where the kid had, uh, like, handwritten on his mix CD, it said MS13 mix, right, and they actually used that in his bond hearing to say, well, look at that, he's listening to gangster rap, and it's not that much different than American gangster rap, it's just in Spanish, you know, glorifying The same kind of stuff that you'd expect, uh, that was, it was a small factor, but it was one of the factors, it was, was used, the kid was not a gang member, it was just this usual kind of thing where he's caught up in the culture, and I was just wondering if that kind of thing, as a character evidence, like you're talking about, can be used about against people who are not artists but are just sort of in the culture or fans, so

0:30:29 Charis: Right Interesting. No, I mean, mostly it's been aspiring artists, you Know, by the way, yeah, I do get asked about narco corrida, is that brand of music that kind of celebrates the drug culture and life in Mexico And I don't know a lot about that music, but I think there's some parallels there That would be Really interesting To study, yeah

0:30:59 Matt: They Yeah That's Pretty similar It Is, yeah, but it's scarier because it's Spanish So, you know, that just scares judges More, but

0:31:08 Charis: Well There's Like a big, the equivalent of me, over in England, um, well, there are several people doing really amazing work in this, because, um, guess it's called grime, that there'sa Lot of claims around, um, authenticity there, and I know Ethna Quinn and others are doing really important work to, um, that practice abroad.

0:31:32 Matt: I Think the equivalent here might be drill, where you're talking About, like Very Specific Have you done any work on drill cases? Should explain, I guess, what drill is

0:31:41 Thomas: First, hey

0:31:34 Charis: Oh, right. Drill. Yep. No. Um, There's so many different sub genres of rap music. And I mean, I always get a little nervous kind defining something because someone will always come and go, well, that's not exactly it because it includes this. But I consider drill to to be a more modern version what was used to be called gangster rap, which is like no longer an appropriate label itself for so many different reasons. But when I wrote my papers early on, I was talking about the sub genre of rap called gangster wrap, but that glorifies a lot of violence that involve, you know, gangs. There's a lot, a lot, a lot more of it is taken online, and there's a little bit more of a lot of claims that gangs are taunting each other through their music.

0:32:18 Charis: Yeah. And, a lot more specific and because it's specific among gang members and, you know, there's a lot more claims about its authenticity.

0:32:18 Matt: It's Specific Adams basically declared war on like drill rap as a concept, right, and yeah, I

0:32:33 Thomas: Let me ask a dumb question, potentially, to Matt, or either of you, if you know the answer. Why don't they just have like other evidence to convict people? You can't imagine a case, there's, there can't be that many legitimate, legitimate murder, whatever cases where it's like, well, this is the make or break. It's whether or not they did lyrics about it or whatever. Like, if you don't have a case, you don'T have a case. I don'T know what is happening.

0:32:47 Charis: Right, exactly. So that is exactly my feeling about this, which is that if you have to rely on the rap evidence and the stereotypes associated with it, that's the problem. If these folks are guilty of whatever crime they're being charged with, you have to prove it the hard way, right? Right, with the evidence, the real evidence, the direct evidence, the physical evidence, not by taking the shortcut. That's been my feeling about this all along. So I think the reason why it's so popular to do this because prosecutors know that these stereotypes exist and it's easy to play on them. And that's, especially see that with certain kinds of juries.

I mean, in our legal guide, one of the things we talk about is the experimental research shows that younger people are much less likely to be fooled in these, not fooled in these experiments, but are much more likely to believe that they are much, much less like to evaluate the rap negatively compared to country. It's the older folks. And that's because young people know what rap is. They get it. They They, understand it.

And so the problem is though, our juries across the United States are populated by older folks with very often very little rap knowledge. That prosecutors know that, and that's a shortcut for them.

0:33:04 Matt: Can You give us an example of a kind of a case where the evans is kind of thin but they're using lyrics that seem bad to a jury, right?

0:34:15 Charis: Well, I mean, that's just the average case that I've been involved in.

0:34:18 Matt: That's I was gonna say

0:34:19 Charis: I mean, yeah,

0:34:19 Matt: That's most of

0:34:19 Thomas: Oh, man.

0:34:19 Matt: Your cases, right? But just like something that comes to mind when I just something egregious

0:34:20 Thomas: Geez.

0:34:22 Charis: I know that the thing is, is there's just, that'S the typical case where they are quoting lyrics that, just to give you a real concrete example, example, the line, and I forget which case this was, there are so many of them, but like the line in a rap, like "I ain't playing." A prosecutor will say, "Look, jury, this person went through issuing all these threats and then capped it off by saying, I ain't playing. That tells you that he's taking it seriously and that this is actually the truth." And so then I will come in and identify 50 songs, songs where rappers are making statements anywhere from "I ain't playing" to "shit is real" to "you best not play me," you know, whatever the phrase is. Or people will say, "Oh, you know, talking" they're about guns, like the example I gave before, all this conversation about guns and they're pointing the gun at the camera and and issuing a threat. And so then I pull up videos and how common that is.

0:34:22 Matt: Hmm. Yeah.

0:35:35 Thomas: Oh, you know what you could also show is the average campaign photo for a Republican anywhere in the country. They pose with guns like it like it's insane. This is so frustrating. Like the double standard is incredibly frustrating.

0:35:43 Matt: At this point Yeah. Which

0:35:44 Charis: You that the funny thing about the double standard is, is people go, why are you support, rappers? I mean, what good are they doing for society? They do this, they do this. And then I start listing all of the thises that exist in our mainstream media, right? Guns, the glorification of violence, the misogynistic treatment of women. That doesn't make it great. I mean, I'm not happy about that, but you're absolutely right. We tend to single out those things and ignore it when we're watching, I don't know, what are those shows that on HBO that everybody loves? Game of Thrones. I means, everything you would find in a a rap you're going to find in the of Thrones or some film that everybody.

0:36:05 Thomas: It is true. People love their violent stuff. Not only that, a of people love just true crime stuff, you know, like listening to that. And yeah, you're definitely preaching to the choir over here. I've lost my taste for a lot that kind of violent stuff, but it's fine. It's like people like what they're going to like, but I think to your point, it's like, let's recognize that that exists kind of everywhere. It's almost ubiquitous in our society. You know, another thing this reminded me of in of the, you know, probably double standard that reminded me early on when you were talking about how they were talking about the average kind of like white male online troll has made violent threats to I don't know, 1000 people, went mostly women per day, you know, it's and that kind of thing. I don'T I think I've heard of maybe that being used used somewhere here and there, uh, criminally, but I can't think of anything specific, but there, I mean, that's a much more, in my opinion, much more realistic. There's no artistic purpose there. You know, that'S, oh

0:36:28 Charis: Yeah. Yeah, right. Yeah.

0:37:27 Charis: You're right to me. You know what? I mean, first of all, I learned that very quickly after I did my TED talk and thought, oh, I'm going to see what comments people have and see how I can get better. And then I started reading it and I was like, oh my goodness, this, you turn those suckers off real quick because I just, misogyny the, in addition to the, you know, I hope you get raped by Iraq. I mean, just all of it.

0:37:33 Thomas: God. Oh my God.

0:37:49 Charis: Um, I've, you know, I do, it's funny cause you mentioned doing work on immigration or, you immigrants. And so I, one other area that I do work in is around immigration and crime where there is so much misinformation and bad bad perception, and I do work that shows that immigrants are actually less crime-prone than their native-born counterparts.

And I had the gall to go onto PBS NewsHour and do an interview following the Laken Riley case where I was asked to simply provide some context and evidence for what we know about immigration and crime, right? We can all acknowledge this was a horrible tragedy. This person, whether they're an immigrant or not, should, if they are found guilty of this crime, be put away for a long time.

We can acknowledge that and we can also say, but luckily this is a pretty darn rare event when it comes to immigrants. The hate mail and the violent threats that I got, all from men. And I know this because they filled up my phone and they filled up my email. And this led me to write an op -ed that I published in the LA Times, which is that we have a crime problem in this country and it's not immigrants, it's actually violence against women.

That op-ed created a whole new storm of angry vitriol, misogynistic vitriol. So I absolutely agree that we've got lots of problems around violence and misogyny in society. And rap is a sliver of that.

0:39:19 Matt: I mean, to me, it more explains the Laken Riley tragedy than immigration, right? I mean, it has to be misogyny. From what I know about the facts, somebody feels entitled to do that, yeah.

0:39:27 Charis: And that's exactly what struck me was the minute they found out that this individual, Jose Ibarra, was undocumented, the news media just jumped on that every article I read.

0:39:37 Matt: That's the story exactly.

0:39:38 Charis: But what struck to me was the fact that he was a male offender and she was a female victim. And this is so typical of violence against women that happens in our society. And nobody cares about it. Everyone was rushing to make immigration bills and get tough. And it's a political platform, you for Trump and his followers. And I'm sitting here going, do we care about violence against Women?

0:39:51 Matt: Yeah.

0:40:03 Thomas: I think no. I'm pretty sure the answer is no.

0:40:04 Matt: No. Yeah. Uh, Yes, just answer that before, that what we had was Kate Steinle, right, which was an accident, right?

0:40:06 Thomas: Sorry.

0:40:09 Matt: And that was the big one that they made so much of for years and years.

0:40:05 Charis: I know. Oh, the San Francisco one.

0:40:11 Thomas: I don't, I don'T know that one. I DON'T, do we need, how much do we explain this? I, I, mean, Lake and Riley, I'm vaguely familiar with, but But I don't know any of the, you know, the average person, if you want to explain any of those.

0:40:12 Matt: Yeah. Yeah.

0:40:13 Charis: Yeah. Well, these are all cases of individuals that were harmed by undocumented immigrants. And Trump ran on the first case back back in the day, sort of using that as a lightning rod for his campaign. Pain. It's been very successful to sort of say like, look, immigrants are the bane of existence in our country and they are bringing all, I mean, that was the famous quote. Bringing They're the drug dealers and the rapists into our country.

0:40:48 Thomas: And some of them, I'm sure, are good people. But what's that first case you're talking about? I just don't remember that name.

0:40:51 Charis: Right.

0:40:54 Matt: Kate Steinle was, uh, and I should mention, both of these are young, attractive white women. I think that's also very relevant. Uh, and they, at Kate's time, it was a terrible tragedy, but this man found a gun on a bench and he was pointing it at a seal, which I have my own problems with, don't point guns at seals, uh, it went off, it was, it was actually something left by a park service employee or something, uh, and it went off and sort of ricocheted in a really unlikely way and killed Kate Steinle.

0:40:59 Thomas: Right. Oh, my God.

0:41:00 Charis: Good point. Good point.

0:41:19 Matt: But this was not a murder, it was obviously an accident, and this for years was the one that I kept pointing to as like the example of undocumented immigrant crime, and I always thought it actually really made the point that we're making here.

0:41:20 Charis: Yeah.

0:41:24 Thomas: Wow. They're They're coming here. They're pointing guns at SEALs.

0:41:31 Charis: Right?

0:41:32 Matt: Right, exactly, that like that's the best you can do. I'm sorry, I mean, it's a horrible death obviously, but like that's the best YOU can do.

0:41:36 Charis: Yeah. What I found is you cannot take a position where you are upset about what happened in an individual case, right, as we have in these individual cases, particularly Lake and Riley, and also take the position that that is an outlier, that the data in general show that if we actually care about crime in our society, and now I am on firm ground being a criminologist and I can say this, you know, if we really care about curbing crime in American society, immigration is really not where we will get the best bang for the buck on that. And that's because what we know from the data, what studies have show, I published a book on this last year with my collaborator, Graham Ousey, called Immigration and Crime: Taking Stock. Pretty much across the studies, across the vast literature that has gone on for decades, immigrants commit less crime than the native born and immigration to an area causes crime to go down rather than up. So that's what the data show, even as there can be individual tragic cases that are

0:41:38 Matt: Uh, there always will be and just, it's humans, like things happen, but

0:42:43 Charis: Exactly.

0:42:44 Thomas: Yeah, people have the hardest time with base rate. I mean, it's just so it's so frustrating to see. We saw it with COVID to point to one single anomaly or a risk or alleged, alleged whatever with a vaccine and they're not taking the base rate into account. Like what, how many people just die of anything that might look like that? Yeah.

0:42:48 Matt: Well,

0:42:47 Charis: Yeah. Yep. Exactly, I tell my students, if you learn one thing, it's not N of one, right? We're not looking to the exception to the rule, we're studying the rule and that's statistics gives us the ability to talk about probabilities, the probability that an immigrant is going to commit a crime relative to a native born person, right? That doesn't mean every single time, or it's going to be a perfect, you know, 100% of the time, but it means that on average, we can make these kinds of general statements.

0:43:07 Thomas: Is what's the, you faith case that you've come across, you know, or been an expert for? I mean, was there ever a time where it might have made sense to use the lyrics at all or just no?

0:43:41 Charis: You know, it's hard to say not having holistic viewpoints of the cases. It's just, it's sort of difficult to analyze or assess these cases as a whole. Like Um, I said, I get a sliver of it, but I mean, I, I just, in general, I think the prospect they're overreaching, they are over stating and over claiming, and they're making false statements like, um, is reality reality? I mean, it can be, but most often it isn't, you know, and then well, what percentage of the time isn't it? Most of the time, right? Because, I mean, can anything exist? Of course it can. Is there ever a situation where a rapper puts issues of threat in his lyrics that he intends to carry out? Of course there's that possibility, but the cases that I see over and over again are so broad and general. And And the claims that are being made are just, I just find them to be way too loose.

0:44:00 Thomas: Yeah. Yeah,

0:44:44 Charis: That's probably not the proper, the legal term, but that's kind of how I see it.

0:44:46 Thomas: Absolutely.

0:44:50 Matt: Sounds like you're pretty innovative as being an expert witness in this subject, and then eventually just working with lawyers, is you got to the point where you realized there needed to be some kind of legal guide or something for lawyers to work from, is that how did this come about, which

0:44:58 Charis: Yeah. Well, and this is kind of how I treat research in general, which is that as I learn about the needs, you know, like, so I did my research, and then I got involved in these cases. And then I talked to lawyers, and they talked about, I don't know rap music myself.

You know, a lot of defense attorneys would say like, God, this stuff looks pretty bad in these videos, but I don't know what to make of it because, you I'm a 60 year old white dude or whatever they would say. And so I thought, well, okay, they're, they wanted to be educated about this. And when I tell them, oh, look at these five videos from famous rappers, do you see how this aspiring rapper is trying to emulate exactly everything that you see in these videos.

And then he'd be like, oh, okay. So taking sort of a cue from attorneys, and then also with Professor Jack Lerner in the law school, coming across this guide by prosecutors on how to exploit the lyrics, really fired us up to do this legal guide. And it was, let me tell you, a three year project that we embarked on. And, and it was great to work with Jack because he's, he wrote the entire section on the evidentiary issues, which is huge.

0:46:08 Matt: Is great, yeah.

0:46:08 Charis: I can, and the case law there, which I know nothing about. Know a little bit about Rules 403 and 404 and state equivalents, but like not much. I was able to handle the experimental research on rap and bias and some of the history and normative conventions. So we came together, did this legal guide and put it for free basically on our webpage, and you just download it.

And next thing we know, attorneys all over the country were downloading it and using it to help file pretrial motions to exclude evidence, to understand what the lyrics mean in their case, to get legal strategies in general. And that was just really gratifying because we're just here to help.

Oh, the latest, the that I've done with a PhD student at UC Irvine is my PhD student Kyle Winnin, who's phenomenal, who worked in a public defender's office and then came back to get his PhD here at UCI and who's very interested in these issues.

He just did a project where he read the closing arguments of prosecutors in rap on trial cases to see how the language that they use is in ways strategic around sort of misinterpretation of rap and how race kind of enters into that language, which it was really fascinating. But we started talking with attorneys and found out that in California, at least, this is so often used in gang cases.

So basically, they're using the lyrics or the videos to show that an individual is a member of a gang or in association with a gang, or acted in the benefit of a gang. This allows them to get gang enhancement charges with the case and and then get really long sentences if found guilty. We decided we need to understand this specific context of rap on trial in gang cases. So we just published a paper, gave a talk, and published a newspaper on this.

And that's now hopefully going to be useful because gangs, there's some, it's some interesting nuance there that I think is important, right? Rap music has a long history with gangs. There's a nexus there that needs to be acknowledged, but also can be confusing to people, right, so prosecutors will say, oh, well, they're, you know, rap, the name has the, you know, like Two Live Crew, for example, has the name "crew" in it, so they must be in a gang, so

0:46:09 Matt: Yeah.

0:48:31 Charis: It's You know, it's that level of stuff, but it's also, you know, artists' nods to gangs in their lyrics or in videos, and kind of how to make sense of that for jurors and what that means. So anyway, um, the latest project I've been working on, and um, I'm sure there will be more to go. What, for maybe this is the good note to end on, what I hope for is that I never get contacted about another one of these, everyone's like, oh, you've got You law, you're all these cases and all this, and I'm going, I frankly would like to never have anything to do with it again. I'm

0:48:31 Thomas: Come on.

0:48:57 Matt: If

0:49:02 Thomas: Yeah

0:49:03 Charis: Done. I, I have, ready for this whole thing to be over, and we, we can move on. People recognize that rap is art, that it is low probative value in the courts, that it introduces bias, particularly among young men of color, and its role should be minimal to none.

0:49:21 Thomas: I They ought to outlaw the use of it as evidence at this point. Like, I was, I was like, well, maybe there would be some context, but after laying it all out there, it's like, I cannot imagine the context for which it would be the linchpin evidence that you need to have to put away a real true murderer, and without which you couldn't do that, I Just that whatever that case is, I'm sorry, like, that's so Marginal.

0:49:37 Charis: Yeah. It goes back to your point. If that's your evidence, you have no evidence. If that's you're only evidence, and just one last thing, California passed a couple of years ago, AB 2799, the Decriminalization of Artistic Expression Act, which was the nation's first ever piece of legislation to put guardrails on rap on trial. So it could go further even, but it actually makes the court stop and consider whether undue harm is being introduced when lyrics or videos are being brought in. And so, you, hopefully other states will adopt similar policies, and there'll be a federal, um, and we can move on from this, yeah.

0:49:41 Thomas: Yeah, Yeah,

0:49:46 Matt: Your case.

0:49:50 Thomas: Where Can I was gonna ask, where can people find that, that those things you mentioned, we can always link stuff in the show notes, because that specifically, that one around you mentioned something about reading the closing statements of prosecutors, like, gosh, I would love to hear some of that. That must be so fascinating and racist. But absolutely.

0:50:33 Charis: Well, I love it, and I have a, I, precisely because attorneys and others are asking for the materials, I created a website. It's "End," it's rap on trial.org, so e-n-d rap on trial.org, and all of the studies that I've talked about, cases, news, media, um, variety of things are available. And And of course, the legal guide and the brief bank associated with the legal guide, they're all freely available on that website. You just go there and click around, and you'll see it all.

0:51:11 Thomas: Thank you so much. This was a real pleasure.

0:51:14 Matt: And thank you and Professor Lerner for your work on this guide. It's fantastic.

0:51:18 Charis: I appreciate coming on and getting to talk about it. Thank you.

0:51:21 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:51:38 Thomas: Is all all for funsies. Not real, everybody. Okay. Anyway, murder.

0:51:42 Charis: I'm going to pop a cap in his ass. How

0:51:44 Matt: Point guns at seals uh