“Every Rhyme I Write”: Rap Music as Evidence in Criminal Trials

In 1991, the U.S. Court of Appeals for the Seventh Circuit upheld the conviction of Derek Foster, whose prosecution was based in part on rap lyrics he wrote referencing drugs and narcotics trafficking. United States v. Foster ignited a trend across the country in which prosecutors use defendant-authored rap music as evidence at trial. Beginning in the 1970s, Black artists in the United States created rap music as a form of resistance and as a means of expressing uniquely Black identity. This deep connection between rap and race continues to inform how society perceives rap music and its artists. Over the years, social psychologists have observed the distinct prejudicial impact that rap has on the way that people implicitly judge rap artists as violent criminals. These psychologists posit that rap is judged harshly because it is viewed through the lens of racial stereotypes. The relationship between rap and implicit racial bias is particularly concerning in the criminal context in which juries are asked to assess the guilt of a rap artist who is commonly a person of color. This Note is a critical assessment of the use of defendant-authored rap music in criminal trials. It first provides an in-depth study of the history of rap music and its connection to race in the United States. It then examines how rap is used at trial through an analysis of the rules of evidence. Ultimately, it argues that the use of rap music as evidence is unfairly prejudicial. As such, judges should exercise the discretion afforded under Federal Rule of Evidence 403 to exclude rap in the majority of cases because of the serious risk that juries will be improperly influenced by their implicit racial biases, compromising the constitutional guarantee of impartiality and the endeavor to rid the criminal justice system of racial animus.