Rap Lyrics Now Admissible as Court Evidence: A Dangerous Precedent (Guest Column)

In a judicial opinion filed last month, The State of Maryland’s highest court ruled that rap lyrics may be admitted in court as evidence of a defendant’s guilt. This blatantly racist decision is a travesty that sets a dangerous precedent.

The case involves the January 2017 killing of George Forrester, who was shot by a drug dealer after he attempted to buy cocaine with a counterfeit bill. Based on a single witness’s identification, Lawrence Montague was indicted for Forrester’s murder. Three weeks before trial, Montague used a jailhouse telephone to record a rap verse, which was then uploaded to Instagram. At Montague’s trial, the State of Maryland introduced the telephone recording of the lyrics as evidence of Montague’s guilt, and Montague was convicted and sentenced to a combined fifty years for second-degree murder and use of a firearm in a crime of violence.

Maryland’s highest court took the case on appeal and affirmed Montague’s conviction, finding that the danger of unfair prejudice posed by the admission of the lyrics does not substantially outweigh the lyrics’ probative value. In making this determination, the Court wildly understates the unfair prejudice posed by the use of this type of evidence. As the dissenting opinion by Judge Shirley Marie Watts notes, the decision here “does little more than portray a defendant to be a person with base violent tendencies who is capable of indiscriminate violent criminal acts.”

In this culturally problematic ruling, the Court fundamentally misunderstands the history, purpose, and importance of hip-hop music. In the 1970s, hip-hop emerged in the South Bronx as a response to the combined effects of poverty, unemployment, gang violence, and isolation from mainstream America. Early pioneers developed the genre, in part, to end gang violence — rap was an outlet that transformed the competitiveness and territoriality of gang life into something artistic and productive.

Ignorant of this perspective, the Court’s opinion hastily draws conclusions from Montague’s lyrics, making up connections between the lyrics and the crime that are simply not there. The Court uses this poorly substantiated analysis toward its finding that the lyrics had an “unmistakable factual connection” to the crime. It attempts to put all rap lyrics into the categories of historical fact and fiction, failing to understand that hip-hop, like most art, is more complex than that. Drawing on African-American storytelling traditions, rap often utilizes violent rhetoric as a form of intellectual competition and a vehicle for change, though such lyrics are not to be taken literally.

The chilling effects of this ruling on the creativity of all rap and hip-hop artists is gravely concerning. Great music is more often than not rooted in storytelling, and by imposing criminal consequences for a story told through an artistic medium, the court here threatens to stifle creativity and limit the scope of artistic expression.

Moreover, it’s impossible to ignore the discriminatory outcomes this type of ruling will create. The ruling is focused on rap, a genre invented by Black Americans and predominately authored by Black Americans; a genre that has historically served as a medium to bring awareness to systemic inequality, along with the violence it often produces (though it is worth noting that violence is not the only theme found in rap music; for example, Judge Watts’ dissent calls attention to the diversity of rap lyrics, citing the positive messages communicated by artists such as Chance the Rapper and Common. Artists like 2Pac have managed to demonstrate empathy and conscience while offering thoughtful examinations of street violence and police harassment). I would invite anyone suggesting that this ruling is not limited to rap music to find an example of a court admitting lyrical evidence of a country singer driving drunk or shooting a cheating spouse.

In a country where estimates suggest tens of thousands of incarcerated people were wrongfully convicted, this outrageous ruling will prevent artists from telling stories that need to be told, simply out of fear that those stories could wrongly implicate the artist in a real-life crime. Art should be a safe space, where we can bring attention to the best and worst parts of our society and the human experience, whether we are celebrating, educating, protesting, or anywhere in between. The art shouldn’t be valued any differently simply because it is crafted in a jailhouse rather than a recording studio. In a justice system already stacked against people of color, rulings like this one are a step backwards. The Maryland Court of Appeals should be ashamed.

Leading music industry attorney Dina LaPolt is the owner and founder of LaPolt Law and represents music creators. She played a key role in the passage into law of the 2018 Music Modernization Act, the first major copyright reform in decades, and she also helped orchestrate unemployment benefits for music creators and other self employed people in the COVID Relief legislation, the Cares Act. Dina is on the Executive Leadership Committee of the newly formed Black Music Action Coalition and she was recognized as Variety‘s Power of Law honoree for 2020.

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