Rap on Trial - Young Thug Was Not the First and Won't Be the Last

Transcript

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

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0:01:52 Thomas: And welcome to Opening Arguments. This is episode 1144. I'm Thomas Smith. In a moment, I'll be joined, of course, by Matt Cameron and a guest, Professor Jack Lerner. You might remember, it's been a while, we first talked about rap on trial with back on OA 1055. that was fascinating. It was a lot of fun. We had really wanted to talk to Jack Lerner as well to get the more legal side of it. So we're thrilled to have Professor Jack Lerner on today to talk more about the law when it comes to this, and more real cases, more instances of this travesty happening, this absolutely racist backwards way of doing law. It is amazing. Right when you think you've heard it all, the of rap lyrics that may or likely may not have anything to do with reality. It's astonishing. Why don't we get right on over to it after our usual break, which you can avoid if you go to patreon.com/law. You don't have to hear the ads. You get all the goodies and you become our very best friend. All right, after this break, we'll get on over This show's brought to you by Incogni. Incogni is a service that helps protect your personal data from data brokers who collect, aggregate, and sell it. That is likely to become an even bigger problem, given the fact that the federal government is likely not going to be doing, you know, like an amazing job at regulating all that, they weren't already to begin with. So so many issues from increased spam to loss of control over your personal information and also identity theft. Which Incogni can help fix this. Here's Here's how they do it. Contact data brokers on your behalf to request the removal of your personal data. They handle any objections from those data brokers, and they continuously monitor and ensure your data stays off the market with repeated removal requests. Spam is just out of control and I can't stand it. It's one of the main reasons I use Incogni. And it's super easy to just kind of set it up and forget it. Get your personal data back with Incogni. Go to incogni.com. That's I-N-C-O-G-N-I dot com slash opening and get 60% off an annual plan. One more time, that's incogni.com slash opening. And use that code opening to get 60% off an annual plan.

0:04:15 Matt: We're joined today by a clinical professor of law at UC Irvine and director of the Intellectual Property Arts and Technology Clinic, Professor Jack Lerner. He is the co-author of Rap on Trial, and we've already spoken with his co-author, Charis Kubrin. And I really appreciate your time to come in and to answer some questions about the law around rap and trial, something I've been particularly interested in for a while. As a starting point here, your background is in intellectual property. How did you get into rap on trial? What

0:04:37 Jack Lerner: Thanks for asking. Thanks for having me here. I started my career as a copyright lawyer in the tech field. And then over time, into working with filmmakers and specializing in the doctrine of fair use and copyright, which is really a First Amendment safety valve that allows copyright to coexist with the First Amendment and allows copyright not to become a form of private censorship.

0:05:05 Jack Lerner: I had kind of always been interested in copyright's interaction with freedom of expression and the First Amendment. And I started to, you know, get more interested in that and worked a lot as well in the media law area. In 2018, we started the Press Freedom Project in our clinic with Professor Susan Seeger, working with journalists and media organizations. And at the same time, I had always been very interested in rap music, which was an integral part of my adolescence and was part of forming of my political identity and my identity as an American and of the world around me and in particular of our country. So I had always had an interest in rap music, not just as an art form, but as to fully understand America.

0:05:52 Matt: Are some of your favorites?

0:05:53 Jack Lerner: I was recently asked to identify my all -time three favorite albums, rap albums, and that was extremely difficult. But I'll go in reverse order, and I'm going, I'm taking you way back to, again, my own development as a fan and, you know, just as becoming into my own as my identity as a citizen of the United States. It Takes a Nation of Millions to Hold Us Back is an album of Public Enemy. It's one of my top three favorites.

0:06:18 Jack Lerner: And then I'm going to go with Run DMC, Tougher Than Leather, which is one of their most popular, but it has, in my opinion, the best three-song sequence ever, which I could tell you another time. And then my all -time favorite is not well -known album called Done by the Forces of Nature by a group called the Jungle Brothers. And that came out in, I believe, 1988, 1989, excuse me. So, you know, obviously there's a lot of modern day records and records throughout the 90s and 2000s that I love as well. But those are my all time three favorites.

0:06:50 Thomas: So it sounds like in addition to loving the art form you're even you're you know all the way back then you're listening to it as political speech in

0:06:57 Jack Lerner: And Chuck D famously called rap music CNN people. And KRS-One called it edutainment. And for me, as a person, I grew up in Kansas City, the in suburbs of Kansas City. And Kansas City is a historically extremely segregated city. And that's for a number of reasons. One of which is the fact that the state line can be used to insulate of the suburbs from responsibility for contributing to the rest of the city. So like a lot of the wealthier suburbs are in Kansas and poor parts of Kansas City are in either across the county line in a different county from Johnson County or Missouri. I didn't have a lot of access to or exposure to black culture or any other cultures other than sort of your default midwestern suburban predominantly white culture and so hip-hop gave me the opportunity to, and it was really a gift to try to understand a little bit more about what life was like for people other than myself and most almost everyone around me.

0:08:01 Matt: Yeah, I had a very similar experience myself with Public Enemy, NWA, Pharoahe Monch, guys like that. Just totally different from any of my experience, obviously, with Wu -Tang. At what point in your career? Because you're talking about, I guess Irvine's not that far from Hollywood, right? So you're getting a lot of intellectual property, just kind of by osmosis, I suppose. But at what point did you realize something needed to be done about the way the rap lyrics are being used in trials?

0:08:21 Jack Lerner: I first found out about this issue in 2013, actually. I read a news article about a man in San Diego who had been indicted as part of an indictment for a criminal street gang conspiracy. So he was indicted simply for being in a criminal Street gang. And that is a very controversial California law that makes not just the criminal activities illegal, but membership in the gang illegal. Part of the reasons, you have to show there's some kind of benefit. So this individual who went by the name of Tiny Doo, still goes by the rap name, he had been arrested and detained under an indictment for being part of this criminal street gang conspiracy. But there was no evidence in the indictment of any activity other than his rapping. And the benefit to the rapping wasn't... or furtherance of a crime or any kind of tangible benefit other than increasing street credibility and intangible things like that. And so he was actually detained for over a year before the judge in the case dismissed the indictment and said that you can't arrest somebody for their thoughts and their expressions. There has to be some kind of activity involved.

0:09:35 Thomas: They didn't just arrest the Sharks and the Jets for their snapping, you know, they had to wait till there's actually some, some fights and stuff in that documentary yeah

0:09:41 Jack Lerner: Right. And of course, they didn't arrest Johnny Cash. He did get arrested many times, but the rest of his music was never brought up in court to our knowledge. And we've tried to research this.

0:09:56 Thomas: Not Even that guy's family in Reno or whatever

0:10:00 Jack Lerner: I shot a man in Reno just to watch him die. And, you know, he did not actually shoot a man in Reno, um, and Eric Clapton and Bob Marley before him did not shoot the sheriff. Um, you know, a lot of rock singers had run-ins with the law.

0:10:12 Thomas: Lennon was not a walrus, yeah, exactly

0:10:15 Jack Lerner: He course, as we know, the walrus was Paul, but,

0:10:16 Matt: That rap.

0:10:18 Thomas: He wasn't guilty of criminal walrus free yeah felony wallace Sorry. Okay. I'll stop.

0:10:26 Jack Lerner: Right. But I mean, okay, let's take Keith Richards. Keith Richards was arrested in Canada and had to stay in Canada for quite some time because of drugs. And he and the Rolling Stones had many songs about drugs, like there's a song called Brown Sugar, which they thought to be about drugs. But that was never part of the proceedings as far as we know. And it's only used as far And at any other time it might be used, for example, a novel where, you know, the events of the novel match a real-life crime, is exceedingly rare. One in a thousand, one in 10,000. And there have been at least 500, if not more, written opinions allowing or disallowing rap lyrics, the vast majority allowing them. And for every one where you have a written opinion, you probably have at least one or even four or five where it wasn't a written, but it was the lyrics were allowed in some way. So this is something that is regularly part of the playbook of prosecutors and it's something that they know to look for and they can either turn a bad case into a good case. Or turn a strong case into a slam dunk case and they can use rap lyrics to create a narrative theme that that a really wonderful and easy way for them to get around the rule against character evidence or evidence about someone's propensity to commit a crime. So one thing we've seen, and I can get into this in a moment, is how prosecutors use these lyrics and videos as a type of character evidence or to get the jury to make assumptions about the character based on the assumptions and biases and preconceived notions about rap music that come from 40 years of media treatment of rap lyrics, demonization of rappers and rap lyrics and also simple bias around the use of African -American English. And so African - American English itself has been shown by social scientists to create bias, much less calling something rap music. But to get back to your original question. So I actually call the defense lawyer. In that case in San Diego and said, you know, left him a message and said, do you need any help, and I never heard back, but it always stuck with me. And a few years later, I was talking to my colleague Charis Kubrin, who's a criminologist, was on your podcast previously and valued colleague here at UC Irvine, and she had recently done a TED Talk about this issue. And a lot of folks in our community saw the TED Talk, and I said to Charis, I love your TED Talk. This is something I've been thinking about for years. And she said, you know, that's great. And I hear from people all the time, and it's just really kind of heartbreaking because I get calls from defense lawyers that say, the prosecutors just sprung this on me. What do we do? And I don't know enough about rap myself. How do I combat this? And Professor Kubrin is incredibly brilliant and groundbreaking researcher on multiple levels, but she's not a lawyer. And she said, I can't help you strategize how to fight this in trial because I'm not a

0:13:51 Jack Lerner: And one of the things we do here at UCI Law School in our clinic is create educational resources. And we've done white papers. We've done reports. We're done amicus briefs.

0:14:02 Thomas: Is that what a clinic is? I was going to ask a dumb question of what a law clinic is. I haven't actually heard of that. Sorry. The non -lawyer here.

0:14:08 Jack Lerner: Not a dumb question. And it can be confusing because it's not exactly the same as a medical clinic, for example.

0:14:15 Thomas: Do you treat people who've been hurt by lawyers physically or emotionally? Because I might want to use your services.

0:14:22 Jack Lerner: No. We're the ones doing the hurting. Thomas, you got to get that straight. No. Okay. So every law school has law clinics. And it's essentially a public interest pro bono law firm operating out of the law school with students practicing law under faculty supervision. And in California, we have special permission from the California Bar. For our students to actually go into court, advise clients and practice law under faculty supervision. So in practice, what that means is that I have about 13 students practicing law on my bar card right now, but actually great fun. We work with filmmakers, we work with nonprofits, we work with a lot of journalists and media organizations. We have a startup practice in our clinic where we work with local entrepreneurs, usually from communities that don't have access to a lot of capital or a lot of fundraising And so they can't afford, for example, to hire someone to get a trademark or to set up their business the right way. And so we help them with that as well. And intellectual property clinics are not as common as, for example, criminal justice clinics or immigration law clinics. We have a domestic violence clinic here. We work with survivors of domestic violence and inter -family violence. Every law school has them. And ours, you know, we founded the Intellectual Property Arts and Technology Clinic back in 2014. And since then, we've worked with hundreds of clients and had a lot of fun doing it.

0:15:52 Thomas: That's really cool. There ought to be more. More lawyers do that somehow. Everybody. Buddy, it's a good use of lawyers, yeah.

0:15:59 Matt: Clinics are the best, really. It's the best part of legal education. I really believe that. Know, we have Rap on Trial, a legal guide produced by your clinic and Professor Kubrin with you. We'll link to it, obviously. But this is an outstanding resource. It is extremely practical, which I really appreciate as an attorney. It has got a lot of really direct advice about how to work with, you know, when prosecution is trying to bring this kind of stuff in. I also want to commend you for having a brief and motion bank available publicly. I just took a look at. That's incredibly useful for practicing to see what's worked in the past, and it's just the kind of thing that clinics should be for. This document, Rap on Trial, the legal guide, a lot in here, but if a defense attorney is coming to you and says, I've never worked with this issue before, the prosecution is trying to bring in basically everything my client, who's an amateur rapper, has ever put out, every video he's ever done. They want to dump it all into the record. Where do you start?

0:16:44 Jack Lerner: I think there are more and more courts that are becoming aware of and more and judges that are coming aware of the prejudicial aspect of rap lyrics. And what you have to understand is that you can take a violent lyrics, and Professor Kubrin and others have done studies on this, you can a set violent lyrics that actually come from a folk song or a country song. And if you ask a random set of people, this says about the themselves. Are these literally true? Did this really happen? If the same lyrics as folk, country, or even heavy metal, they will by and large say, no, this, this is art. This subjects will say this really happened. This is more likely to be literal.

0:17:04 Thomas: Real life literal truth yeah wow

0:17:30 Jack Lerner: Yeah. And it's a straight up diary. On top of that, and Professor Kubrin again and others have done studies on this, that juries or subjects of these, these studies will also begin to make assumptions about the character of the rapper. You are more offensive. He is more likely to be guilty of a crime. He is more violent and dangerous. These lyrics are, you know, should be banned in greater numbers than another, the lyrics In the law, we say probative value, likely more true than if it's introduced into evidence. Little probative value because so much rap is not true to life or is somebody working out what they want out of life or maybe they're working out their emotions.

0:18:16 Thomas: As someone who tries to answer bar questions for fun on this uh on the show how are they even doing this isn't this like definitionally hearsay and or irrelevant nothing I don't know what is even the the way they get this in yeah

0:18:29 Jack Lerner: Thing that, you know, we tell the folks that, that come to us, and then we say in the guide, is you do need to authenticate the lyrics. Right. It's not clear that the rapper even wrote the lyrics. It's not that the rapper necessarily is even the one rapping them. Right, and sometimes it might simply be reposting somebody else's lyrics or quoting someone else's lyric, and the police might not even realize that. So authentication is extremely important. They usually get in when we get into the rules of evidence. OK, so in the federal system and every state has state equivalents that are virtually identical. You have two important rules. Right. One is Rule 404. And it doesn't mean file not found in the law. 404 means, means cannot bring in character or propensity evidence. That means you can't say this person is more likely to commit crimes because of X, Y and Z evidence. So they're just generally, like, a more guilty person. That's what propensity evidence is. And then when it comes to character evidence, you know, that's, this is a bad guy. This is a person, um, who has bad morals and therefore you should convict him. Right. So that is strictly prohibited. However, there are exceptions. One of the key exceptions is you can introduce that type of evidence to show motive. Another one is intent, right? And so with something like murder, you can't just show you person shot Y person, you have to show that they intended to kill that person or else it's

0:19:53 Jack Lerner: A different crime.

0:19:53 Thomas: To watch them die I get it yeah so

0:19:55 Jack Lerner: Yeah, so just to watch them die. So, you know, he had an intent, or was his motive, I guess. Then a third one is knowledge. And there are others, but those are the three where the rap lyrics usually get in. However, even after you look at evidence and you find an exception to the character evidence rule, you still have to pass muster when you're introducing evidence under rule 403. And 403 is protecting against. The at risk of subs substantial risk of unfair prejudice um so again you're automatically going to assume someone's guilty based on 40 years of demonization of rap and, you know, literally hundreds or even thousands of negative about rap that you've been seeing on the TV and in the news for years and years. And we have some examples in our guide as well. You know, one of my favorites is Hate, Rape and Rap, which was an op -ed by, I Tipper Gore in the Washington Post. George Bush Senior compared rappers to Hitler, there another one that says something like, changed by rap, mother says, you know, and there's just a, uh, just a generation or two generations worth of negative media treatment that gets baked into polling and that gets baked into what assumptions people make and what shortcuts mental shortcuts they take when they're trying to figure out what kind of person this is. So that's what unfair prejudice is. And so you, in Rule 403, you have to balance probative value on one hand, so the likelihood to make something more true, that a fact is true, on the one hand. And on the other hand, do you have a substantial risk of unfair prejudice, confusing the jury, or cumulativeness? Is it on top of other evidence? A lot of times judges simply ignore all of these factors and they say, no, it's not unduly prejudicial or a substantial risk of unfair prejudice. And they don't get into cumulativeness or confusing the jury, even though there might be overwhelming evidence. But in that sort of situation, you have to say, well, if the evidence is overwhelming, why are you bringing this in? The answer is that, We've seen with that there's a rule against character evidence. But it's still used as a narrative through line, a way to essentially demonize the defendant. And Professor Kubrin, Charis Kubrin and I, as well as another scholar named Kyle Witten, have a paper coming out about prosecutorial narratives where we look into this. And what is that the judge will say, OK, I'm going to allow this in because it shows motive, intent or knowledge. And then you get to closing arguments. And the prosecutors over and over will then say, to these lyrics, I did it for the hood, or I did it for this, or for that. There's pages and pages of lyrics that have nothing to do with the crime at hand, but might be very violent, misogynistic. Again, rap music is the music of rebellion. It's the music defiance. You're going to have that kind of content, as anyone who listens to rap probably hears. They'll say, look at all these lyrics and they'll read the lyrics and then they'll say, this is who they are. This is what they do. This is how they operate. This is their MO, and so on and so forth. And what they're really doing is blatantly ignoring the rule against character evidence. And we see it over and over.

0:23:19 Thomas: It's like they, they kind of game the system, by, are you saying they got it in maybe on one theory, but then in the closing arguments they just kind of use, you know, it, uh, more broadly than they should have been able to? And is that up to, I guess, the attorney, defense attorney, to object and

0:23:34 Jack Lerner: The defense attorney needs to object and also should get a ruling that the use of this as character evidence in arguments needs to be warned ahead of time. And some attorneys have been successful in doing just that. And then when the prosecutor inevitably does it, the judge says, wait a minute, I warned you not do this. And that defense attorney can use. But what we often see is that it's allowed in under these exceptions to the character evidence rule, and then... the defense is blindsided with a bunch of inflammatory statements during closing arguments. And it's not easy to object during closing agreements. You can't object over and over or else the judge is not going to like that. And understandably, right? I mean, you don't want to just interrupt a closing argument over and it does put the other side at a disadvantage no matter who you are. This is, again, when getting really technical into how trials work, this is one of the ways. That the prosecutors use rap lyrics to get the rule against character evidence.

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0:25:48 Matt: Your recent law review article in the Chapman Law Review, you talk a bit about the State v. Skinner in New Jersey. That was about 2014. And that one, I hadn't heard about this, but about something like 13 pages from a notebook in his car that really had nothing to do with the crime at all, that just came in as evidence. And you were talking about that as a turning point. I wanted to hear more about that.

0:26:06 Jack Lerner: This was kind of wild. So this is 2013, and at this point, almost, really were not very many judicial opinions that had... out this tactic for being as harmful as it, as it can be. And the way that it allows, um, not just character evidence, but, but substantial bias and prejudice, whether it's, whether it's anti-Black bias or prejudice, or whether it is anti-rap bias or prejudice, or some combination, to get in. So this was a crazy case. So, this young man, um, car ran out of gas and he left it on the side of the road. And he wasn't able to get back for a week or two. So it got towed. When it got towed, it got searched. And when it got searched, they found some rap that had been written but not recorded or shared with anyone that were literally stuffed between the seat and the console. And they then indicted him on terroristic threats, even though, yes, even...

0:26:57 Thomas: Wait what oh my god I've just assumed it was like he already shot someone and then, or something, you, you know, was accused of something. You're saying just on that.

0:27:08 Jack Lerner: Just on his handwritten notes that hadn't been shared with anyone. They searched his house and he was convicted, put in jail, put him in prison, lost And then the state Supreme Court in that case said, you know, this is somebody's thoughts. He had not communicated those thoughts to anyone. And it can't be a terroristic threat unless, so, ultimately he was exonerated, but of course he was too afraid to record any rap after that. So his rap career, you before it began and his life was irrevocably changed because of what had happened. So that, that's a case that, you know, and some said, well, this is a different case. This is a case where the person is accused of a, you

0:27:16 Thomas: Convict. What? Oh my God.

0:27:56 Jack Lerner: That they did a drug murder, and the lyrics sometimes might go to that, but in the vast majority aren't about the specific facts of the crime, are generic lyrics that you can find in many songs going back 20, 30, 40 years. Might not be that important to the case, might not Most of the time, the courts don't refer to the social science literature or to any kind of broader understanding of how rap works, with hyperbole, the tradition of keeping it real and claiming that in the raps, that this is who I am, this is really what I do, when that may not be true. Many other rap conventions that, if you listen to a lot of rap or if you studied rap, you might know about, but not everyone does. And even people that casually listen to the top 40 rap songs may not really understand the way a major fan would. And there's a lot of examples. A really egregious example is a rapper from New Orleans named Mac Phipps. And back in 2001, he was arrested after there was a shooting at one of his concerts. And he was performing when the shooting took place. But he was charged for the murder. Another man

0:29:13 Jack Lerner: Came forward, a security guard, and said, I am the shooter, this individual, pulled out a gun in self-defense. The prosecutor still said, no, we want Mac Phipps, the rapper. And so what they did was they combined two songs without saying to the jury that they combined two different songs that were his, to make him out to be a very violent rapper. He actually was more of a party rapper until he signed with Master P's label, No Limit Records. And then his raps became more violent and more graphic. But these particular two rap tracks, one was about his father, who was a veteran. And he was describing how tough his father was. And the other one was about battle raps and diss battles. And he would sing, I'm the best rapper, and if you go up against me, it's going to be murder, murder, kill, kill. I am going to destroy you on the mic. And it was very clear from the song that it was a battle rap. But they took lyrics from the Song About His Dad, and they took murder, read them to the jury. And of course, that was the theme and the obsessive focus of that trial. There was later, the prosecutors later got in a lot of trouble for corruption and for all kinds of other bad deeds. But the gentleman, Mac Phipps, actually went to jail, went to prison in Louisiana and was recently released on parole. And he was able to be released possibly a little bit early because of the facts of this case and how egregious they were, but he spent, I believe over 20 years behind bars because of this, this prosecution.

0:30:53 Thomas: That is unbelievable.

0:30:58 Jack Lerner: And that you see more often than you would think. A lot of times the you introduce evidence, you usually need to introduce it in trial through a witness. And so the witness will say, can you authenticate this document? Where is this document from? And so, the witness that usually introduces these rap lyrics is a police detective, often will be identified as a gang expert. They don't have training in rap music, and they also obviously have a motive to tie whoever's doing the rap to a gang. But what happens often is there will be kind of egregious misinterpretations of the lyrics, right? And so there, San Francisco Bay Area, where I think about something that was said, as opposed to in a rap, but said to another guy, where the lick's at? The director and rapper Boots Riley was actually brought in as an expert witness to say, where the lick's at, contrary to the gang expert's testimony, does not mean what crime are we doing today, what's on the agenda for crime. It actually just means what's going on. And anybody who's in that particular, at that time, 10 years ago, in Oakland would know that, but a jury from outside the city center of Oakland, and I think the defendant was acquitted, but you see over and over all kinds of misinterpretation of what the lyrics mean.

0:32:26 Jack Lerner: Be, be saying I'm down with this gang, or I know this gang, or shout out to this gang. Or I might cheer for the Oakland Raiders. I might cheer For the San Francisco 49ers. So you say I cheer for The Raiders, right? And so Someone might say I'm down with This group or that group That doesn't mean they're actually a member Of the group or they're doing Crimes with the group Or that they've been admitted To the group It just mean that If see that group They don't get beat up Or something of that nature So you often get misinterpretation of the lyrics as well. And so one thing to do that we tell attorneys is, you know, you have to educate the judge and the jury and the lawyers themselves about how rap works. What things mean and you also should challenge the expertise of gang experts to be able to interpret hip -hop and to provide the appropriate context that goes back you know again over 50 years of how rap works and and what rap lyrics mean and how they work in practice and particularly in that community yeah

0:33:34 Thomas: Sure, but forget all, all that, why does it, it's lyrics, it's art, don't we have the First Amendment, like, what, what does the justice system think, even if somehow impossibly like 80% of the time people wrote about, I don't know, a murder they actually committed, it even still you wouldn't know anything but the individual instance of someone doing creative writing, but I'm sure the real number is like zero percent, you know, point zero zero one percent, I don't know, forget rap lyrics, they, this, need to know that lyrics aren't real. This is crazy to me.

0:34:03 Jack Lerner: It is to me as well, um, but you, you start with regular testimonial evidence, right? So when someone is just speaking, you know, on the phone and they say, all right, I'll meet you at the bank at 5 p.m. And we're going to go in there and we're gonna go in and shoot it up and take all the money. And Courts have said that can be admitted. Right.

0:34:26 Jack Lerner: But the courts It comes to creative expression or any kind of speech-based evidence at all, you do have to be extremely careful. And the Supreme Court has said this on numerous occasions. This should be treated differently than other evidence, documentary evidence, or, you know, I saw a person at a particular place, or surveillance camera footage, or any other kind of evidence, that speech-based evidence and particularly creative expression does need to be treated differently. But so far, only one court has actually said, no, the First Amendment requires us to treat it differently. And that is a federal district court in Pennsylvania essentially said, look, we need to start with a presumption that rap music or any kind of creative expression is fictional, not literal. Fictional, not fact. And then go from there. But what you see over and over, going back, and the first rap case was in 1991, the first written opinion, is that courts essentially just assume this is literal. And they don't engage in that inquiry at all. And consider the First Amendment, they say the First Amendment allows evidence that's an admission against your interest. And so this is something that's been glossed over by the courts. In my view, it's an egregious legal error to gloss it over and it should be taken much more seriously. Again, we've seen now in the last two years, we're seeing courts in Pennsylvania, in New York City, there was a really excellent opinion that went into all of the history of rap. We've seen very good opinions in Texas and Georgia Supreme Courts saying, hey, we need to take a closer look at this and we need understand the prejudicial impact of rap and we

0:36:15 Jack Lerner: There is still a steady stream, of course, that are sort of saying, no, this is fine, go ahead. We're not going to mention the social science research in our opinion. We are not going to mention the unique nature of rap or the conventions of rap in our opinions. And we're really just going to treat it as literal, as if it were a statement made on the telephone to a co -conspirator. That's, in my view, that's wrong.

0:36:37 Matt: Apart from the outstanding research of people like Professor Kubrin, I'm looking at State v. Skinner, the case in which essentially 13 pages of what amount to a journal entry, if they're not actually published, and they were never made into songs. The holding here is just so clear to me. I don't understand that this is not the prevailing, maybe it is now. I'll just read a bit here. You said it in the Chapman Review piece. Forms of inflammatory self-expression, such as poems, musical compositions, and other like writings about bad acts, wrongful acts, or crimes, are not properly evidential unless the writing reveals a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged. That's about as simple as it gets. You don't really need to be a lawyer to understand that one.

0:37:18 Jack Lerner: Right. But at the same time, a number of courts have rejected that test, this idea that there should be a strong nexus between the facts of the crime and the lyrics in question. And a lot of the foundational cases, so there's one called United States v. Foster in 1991. And in California, there's there's also two foundational cases that have been cited over and over in California. And each of them led in egregious amounts of the rap music to the jury that had, of lyrics rather, to the And to me, that's bad enough, that you're letting rap music in at all and treating it as a literal confession. But when you then bring in all that other stuff, you don't talk about the prejudice. You don't think about the risk of bias that's been shown by numerous studies that have been repeated over the course of 20 plus years. You're really making a big mistake.

0:38:23 Matt: What's the other side of the strong nexus test? Because that just seems so incontrovertible to me.

0:38:27 Thomas: Racism. I don't know.

0:38:27 Matt: Yeah, right.

0:38:30 Jack Lerner: The, the other side is, um, this might be creative expression, but it shows an association with a gang, they will say, look, uh, one case where the court simply said, this shows that he has knowledge of the drug trade, so therefore we can let it in. If you've listened to rap music at all, you probably have some knowledge of drug terms and the drug trade. And I'll give you the best example is that my father, who had never listened to any rap, when he was in his 60s, I, Too Short's album, famous Oakland, California rapper, he actually came up with with Professor Kubrin as well. Played for him this very funny song by Too Short, which mentions Ronald Reagan and Nancy Reagan in very explicit terms. And it's a song about defiance and about rebellion. And he thought it was very funny. I left the CD in his car. And a few weeks later, he came back to me and said, I listened to the entire album. I have a whole new understanding of what life at that point in time was like in Oakland, California. And he knew a lot of drug terms just from listening to, listening to that, that album. And, you know, not getting brought up for charges. And, and, you know, the idea that, that because you repeat common tropes about, in your rapping about drug, drug use or the drug trade, means that you have special or particular knowledge of the drug, is, is, experience with it, is wrong, honestly absurd, but yet it is used over and over by the courts.

0:40:06 Matt: This doesn't happen very often, but there are cases in which it is just a criminal threat. I mean, you can't just post, for example, online that I'm going to go kill Jack Lerner in his office at 3 p.m. on March 27th and put it over a beat, right? That doesn't make it legal if you're to do that. I don't know how often that kind of thing happens, but, like, there is a criminal-threat line at some point,

0:40:23 Jack Lerner: Absolutely. There can be criminal threats and maybe they can be done in the rap context. And there's a standard for that. You have to show that that was meant to be a threat and that it was perceived as a threat by the recipient. And if that's the case, then let the chips fall where they may. But you still have to consider, how much of the rap music are you going to bring in? Are you going to bring in the lyrics? Are you going to bring in the entire album?

0:40:50 Thomas: Right, and the whole presumption thing seems like the biggest part, because I mean, I got to say, if you're going to make a threat towards someone, that is a very weird way to do it. Like, I'm sure it's happened, but like, it's like, all right, I want to threaten someone. Two, three, four, you know, laying down a bunch of like, I, that take wasn't very good, it's not very threatening, I need to, you know, hire a producer, studio time. It's a weird way to make a threat, is all I'm saying.

0:41:12 Jack Lerner: There's a long history of rap beefs and there's a long history of diss tracks, and the vast majority of them do not result in that kind of, you know, it's known that you may be embarrassed and you may lose credibility within the field if you lose the rap battle. But that doesn't mean that everything that you said and that the other person rapper said is going to be true. And so people pretty much understand that.

0:41:33 Thomas: Except about Drake. That's the only, yeah.

0:41:35 Matt: I was going to say that the best way to win a rap battle is to sue for defamation, we've recently learned.

0:41:39 Thomas: The only example of an actual murder via, so I think, can someone be guilty of literal murder through rap battle?

0:41:42 Matt: Did actually, just about.

0:41:48 Jack Lerner: When someone loses a diss they usually just kind of move on. Instead, Drake signed a legal pleading saying, I was egregiously hurt by this and that I definitively lost the rap battle.

0:41:53 Matt: Will

0:41:54 Thomas: Not this one. Yeah. Yeah. Yeah.

0:42:04 Jack Lerner: I don't think there's been that one-sided of a diss war victory in the history of rap, but I could be wrong.

0:42:11 Matt: Say just for historical perspective, that obviously the greatest feud in music history did end with both people dead within six months, with Biggie and Tupac, East Coast, West Coast. I mean, and, you know, we still don't know the full story of either of those things, really. But,

0:42:23 Jack Lerner: Don't, but we also know that Biggie Smalls had rapped in his art about being targeted by people who just wanted to rob him. And Tupac had also said publicly that he had a criminal past and that his, and I'm not talking about any raps, but he had just talked about the fact that he made people angry in his past due to his previous act. Activities so you know not clear at all that that those murders were related to the feuds um feud between those two rappers and it's uh really unfortunate that we don't know what what happened but uh

0:42:58 Matt: It's true. It's good perspective. Yeah, that actually makes me think. You take something like Head Em Up or Who Shot You, the Tupac Biggie kind of exchanges of how they're going to kill each other, basically. They look kind of tame compared to... deeply engaged with drill rap, which is sort of the newer version of all of this. But I know Eric Adams and other local leaders have been making kind of a moral panic about drill, which much harder, much more specific, much violent in its imagery. Have a take on that? Again, I don't know enough about it really to have an opinion.

0:43:26 Jack Lerner: Have to ask, what and what is a symptom? With drill rap, if you're going to go after drill, the way the mayor has gone after drill is as saying this needs to be banned or this needs be controlled or this need to be stopped because it's creating violence. And in my view, it's least on a general level reflecting violence and reflecting gang activity in places the Bronx or Chicago. It's not necessarily causing, it's the medium by which some people are communicating and some people is a little bit unique in that some of the amateur drill that we're seeing is fairly direct. And you have people saying, and there was a Vice documentary where some of their rappers said, yeah, I, you meant that. A direct threat against that person. Saying so in an interview is a I'm keeping it real. What I say is real. And that still doesn't mean that's it's actually real life. And so, again, it is art and it is something that you have to look at in context. That some times where someone says, you going to kill John at such and such a time on such and much a block, or we kill John, whatever, at such a such a block.

0:44:51 Jack Lerner: And if that's actually what happened, well, now you have something that's got a strong nexus to the crime. But when you indict a bunch of young men, and Operation Drilly, are you making it about the rap, which actually happened in the Bronx? Are you making about the actual activities that these individuals are doing? Because that's what we saw with Young Thug, and that's sensationalistic that's more designed to get attention and ultimately the prosecutors thought that's what a jury would be more interested in and would be easier for a jury to buy um you know if you look at um indictment in in some of these drill cases um lots of actual crimes that are being um RAP doesn't necessarily mean that they did it. And so if you can't show that except through RAP, I'd say you have an evidence problem.

0:45:58 Matt: For sure. And

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0:47:05 Matt: Actually, speaking of Young Thug, we should talk about that for a minute, because as you mentioned, something like 16 or 17 specific statements from YSL recordings, obviously the label that is being accused of being a gang, essentially, put were under the indictment as overacts in furtherance of the conspiracy. And that was a RICO case, obviously, in Atlanta, where... Thug's entire organization, YSL, was being accused of being a street gang and that this music was basically in furtherance of their gang activities. And I got to say, looking back at the indictment, I just reviewed it before we're talking here, and I don't see a lot of this as being specific to, and maybe I'm not familiar enough with the situation, but there's a lot kind of general statements in here. What's your take on that? I mean, obviously, Young Thag is wrapped up. The YSL case is now pretty much done. But what's your overall thought on that?"

0:47:49 Jack Lerner: I was pretty disappointed that they had lyrics by Young Thug and they took out dozens of dozens or even hundreds of songs, they cherry picked a some of which were over eight years old at the time of the indictment, and then made the case about that. And the judge in that case, who was later kicked off the case, said, I don't see a First Amendment issue here. Then the prosecutors immediately began talking about the rap. The rap was the first thing and the main thing they talked about on the first day of trial. And, you again, I found that very disappointing that they made the case about the rap music instead of about the very real allegations of crime that took place. And the fact of the matter is the evidence tying Jeffrey Williams, also known as Young Thug, to all those other crimes was quite thin. The judge realized that, eventually who accepted a plea bargain that included time served. So I think... shows a dangerous kind of escalation of targeting a group of rappers for being rappers and making that the that you build a case around rather than saying, no, this is actually direct evidence of something that happened. And cases are few and far between.

0:49:09 Thomas: Yeah, you really just to reiterate, that was my takeaway from the last one is, hey, shouldn't there be like actual evidence, you know, like maybe you just don't have enough evidence to convict someone if this is the best you got seems weird to me yeah

0:49:22 Jack Lerner: Are a surprising number of cases like that. And there's also, you know, again, just cases where it's almost like we're going to put the rap. And this is why it's called rap on trial, because it's like we'RE going to make the trial about the rap and what we're gonna do is, is the lyrics front and center and make the case about the lyrics. And the crime itself is, you important and receives less focus. And I just think that's wrong.

0:49:52 Matt: A few days before we're recording this, we've seen a plain load of people deported to Venezuela for alleged gang ties with no actual evidence. We don't know, you know, it was under the Alien Enemies Act, there were no removal proceedings. I have to ask this because I've worked with a lot of people accused of gang membership in my community here in Boston, and they use things like the fact that one of my clients had a mix CD that just said, like, MS -13 mix, right? And, you it's very concerning to see because especially given how low the bar is for establishing gang membership for immigration proceedings. Is that something you've looked into?

0:50:24 Thomas: Right yeah

0:50:25 Jack Lerner: Of our work is concerned when you're in a criminal trial and when someone is accused of a crime and the rap is being used as evidence of the crime. And we talked about terroristic threats earlier. That is a very, very small, very, small portion of when evidence is used in criminal proceedings. Usually it's just to prove an of a then you get into other sort of quasi criminal situations where. Courts have even more leeway to bring in the rap lyrics and to make decisions based on rap lyrics. So immigration proceedings is one of them, and defendants have fewer First Amendment rights, and evidentiary rules, more importantly, are not as strong or don't exist. Then you also have parole proceedings, and rap lyrics can come into place there. And you have sentencing. So sometimes the rap may or may not be part of the trial, but it becomes part of sentencing. And judges have said, well, you kept rapping about this same kind of rap you're doing before. So you're going to get a longer sentence or you're gonna get a sentence that involves detention instead of home arrest or something along those lines. So this is an area where yes, if the government wants to punish you for your speech and you don't have the protections of a courtroom, it can get much more. Egregious in terms of the way that people are being punished for their speech or prosecuted for their speeches.

0:51:48 Matt: That's a great point. And of course, in immigration court, it's clear and convincing evidence. And all the government has to do is just bring in a few things, maybe a picture of you flashing some gang signs, wearing the right shirt or whatever. And that's it. So it's important to think about the bigger picture there. Just to wrap up here, are the single best reforms that we can point to here? Or maybe some of the things the states have already done, the federal government might be doing to limit the use of this.

0:52:11 Jack Lerner: Legislation that's pending right now in the state of New York that has passed the Assembly, and I think it's been stalled in the Senate the past couple of terms, but it essentially says, listen, we're not going to exclude rap evidence. Se, and no one is advocating for that. I'm certainly not. But it's important to put guardrails that protect all kinds of creative expression, not just rabbit expression. And so the New York legislation says you bring it in unless you can show the following things. Number one, it's something that the person intended as literal fact. What or... artistic expression. Number two, it has to be related to the elements of the crime. There has to add something new. It can't cumulative of other evidence. Four, it's disputed. If both parties say yes, he was in a gang, then you don't need to bring in a bunch of rap that might mention gang. And a lot of other highly prejudicial stuff. So that is excellent legislation. There's similar legislation that's been introduced but not voted on in Congress. There are legislative efforts pending in other states as well. And these are bipartisan efforts. There legislation that in California does those things and more, and that was actually passed unanimously by the California legislature. So both the Senate and the Assembly voted unanimously in favor of the Decriminalizing Artistic Expression Act of And that has same requirements, but it also says the judge needs to consider whether bias is going to be brought in if you bring in creative expression. And the judge has to consider evidence of genre, of the artistic expression. If you're going to argue this, it has to be outside the jury and a few other protections. The California legislation is excellent. It could be stronger in some ways. But it's that now prosecutors, defense attorneys, and courts are paying attention to. And it is affecting, you know, it's having its intended effect, which is to help courts understand how to be more careful about bringing this in so that it's not just dragging

0:54:35 Jack Lerner: Through the mud by mischaracterizing or just introducing inflammatory lyrics that don't really have anything to do with the crime at hand.

0:54:43 Matt: Sounds like a good model.

0:54:44 Jack Lerner: We're with how it's going and we'll where it goes.

0:54:48 Matt: The federal government also, there was in Congress, there's the RAP Act, right? That was very similar.

0:54:52 Jack Lerner: That's right. The Restoring Artistic Protection Act. And that's quite similar to the New York legislation. This Congress, I don't know what's going to happen, but it's great legislation. It's worth checking out. It says the Restoring

0:55:04 Matt: Great.

0:55:04 Thomas: Well jack learner thanks so much for joining us hey do you want to send our listeners anywhere anywhere they can find you follow your work anything like that oh

0:55:11 Jack Lerner: You can see what we're doing and you can also learn more by going to rapontrial.org, which is our website where we have our Wrap on Trial legal guide, a list of resources, as well as a list lawyers and experts for folks to get in touch with. So more to come on that and hit if you like. And thank you for your time. Thanks for having me.

0:55:32 Thomas: Thank you our pleasure I'll

0:55:32 Matt: Great stuff.

0:55:33 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.