Opinion: The danger in putting rap lyrics on trial

Editor’s Note: Elliot Williams is a CNN legal analyst. He is a former deputy assistant attorney general at the Justice Department and is currently a principal at The Raben Group, a public affairs firm. Follow him on X @elliotcwilliams. The views expressed in this commentary are his own. View more opinion on CNN.

A sprawling racketeering case brought by an aggressive prosecutor in Fulton County, Georgia, is testing the limits of the free speech afforded to one very high-profile, very colorful defendant.

No, that defendant is not former President Donald Trump (though tricky First Amendment issues swirl around his case brought by District Attorney Fani Willis’s office, as well).

The defendant, Jeffery Lamar Williams, more commonly known by his stage name Young Thug, is accused of co-founding a criminal street gang responsible for vicious acts stretching back a decade.

Prosecutors argue that “YSL,” the acronym for the Grammy-winning artist’s label, Young Stoner Life Records, also stands for “Young Slime Life,” an Atlanta street gang affiliated with the national Bloods gang. Williams was charged alongside dozens of other defendants under Georgia’s sweeping Racketeer Influenced and Corrupt Organizations Act. He has pleaded not guilty.

In order to establish a conspiracy, prosecutors must introduce evidence linking the members of the conspiracy to each other and to the alleged acts. Fulton County Superior Court Chief Judge Ural Glanville said he will allow 17 Young Thug lyrics to be used in trial for this purpose. They include: “Got a lot of followers, a perfect leader … I’m a boss, I call the shots”; “Come and enroll to the YSL school, and I swear I’m the principal”; and “I never killed anybody, but I got something to do with that body.”

While Glanville’s position is a boon to prosecutors, the very introduction of much of this evidence is a problem. Above all else, bringing any kind of creative work into court as evidence against its artist flirts dangerously with impeding the kind of free expression and artistic innovation that make America special.

Moreover, the introduction of these lyrics exposes a decades-old problem at the intersection of race, law and popular culture: the overzealous manner in which prosecutors have sought to make rap lyrics evidence. Perhaps it is all the latest track on an album that has been playing on loop for decades: “What’s on Trial: The Defendant or Rap Music?”

A quick primer on some of the rules of evidence that got us here. First, in courts across America, evidence is “relevant” if it makes any consequential fact more or less probable. That is straightforward in Young Thug’s case; given that prosecutors have alleged a criminal conspiracy, evidence that seeks to establish the conspiracy will be broadly “relevant” to trial. Simple enough.

There is also a corollary to that rule: Relevant evidence might be excluded if its value to trial is “substantially outweighed” by the risk of unfair prejudice or misleading the jury. If there is something about the evidence that, for whatever reason, might be unfair to the defendant or inappropriately distract jurors from the facts and law of the case, it can be excluded.

Finally, “character evidence,” or evidence of a person’s traits or even morals, is inadmissible to prove that on a given occasion, the person acted consistent with that trait. (i.e., evidence that suggests someone is generally a rotten guy, however true, can’t be used to convict him for a specific offense).

And thus, the conundrum surrounding Young Thug’s lyrics. Certainly, if lyrics provide confessions for charged crimes, or demonstrate knowledge of the charged crimes, they ought to come in. However, generalized statements of acts similar to those charged should almost never be enough to justify admitting the evidence. Unfortunately for Young Thug, rap lyrics have historically been held to a far lower standard than any other genre of music.

Research supports this point. A 2016 study from criminologists at the University of California, Irvine, found that participants judged the same violent lyrics as more offensive and true to life when told they were rap, as opposed to other genres. The study found that rap lyrics could unduly affect jurors when admitted as evidence to prove guilt. No one plausibly thinks Johnny Cash was serious when he sang the unquestionably violent line in 1955’s Folsom Prison Blues, “I shot a man in Reno / just to watch him die.” There are reasons for that.

The Irvine study matched the findings of a 1999 California State University, Los Angeles study, which found that when participants were presented with scenarios about a young Black man and asked to rate their impressions of his personality based on a number of statements about him, they judged him most harshly — even as compared to the suggestion that he had committed a violent crime — after reading rap lyrics he was said to have written.

Outside of music, consider the recent case of Nancy Crampton-Brophy, a charming 71-year-old writer who, in addition to penning spicy romance novels, wrote an essay titled, “How to Murder Your Husband,” before, in fact, murdering her husband. Though she was convicted in 2022 of the murder, the judge did not admit the essay in court under the rationale that it had been written years before in a writing seminar.

Ask yourself: Might a tattooed Black man with cornrows nicknamed “Young Thug” have been extended the same courtesy if he had written a rap song, even years before, titled, “How to Engage in a Violent Criminal Conspiracy?”

Unfortunately, the laws governing evidence tend to be vague, in order to accommodate the unique circumstances of different cases. That, coupled with the fact that the Supreme Court has also left open the question of what the standard even is for determining when a written threat is sufficient to support a conviction, leaves a vacuum where prosecutors and judges are all but invited to be led by their biases in deciding how to approach evidence.

It’s obviously possible for someone to confess to a crime or provide useful evidence via a work of art. Still, states and the federal government could follow California’s lead in crafting standards for when and how to admit creative expression in court in a manner that specifically weighs the value of evidence against the danger of prejudice against the defendant.

Rap and hip-hop are not everyone’s jam, and one need not choose to listen to, or even appreciate, them. However, even songs with lyrics that glorify violence can be vital works of art worthy of creative respect.

Moreover, their artists, however unsavory they may appear to some, are entitled to the same due process and constitutional rights our country (at least on paper) guarantees everyone else.

Williams may well have been the leader of a vast criminal conspiracy that carried out heinous acts in a community plagued by gang violence. If he was, he should be held accountable.

Prosecutors and judges should just make sure they’re using the right evidence to get there.