Combatting the Use of Creative Expressions as Evidence in Criminal Proceedings: Will Others Follow in California’s Lead?

On September 30, 2022, California Governor Gavin Newsom signed Assembly Bill No. 2799 (“AB 2799”), amending California’s Evidence Code.[1] AB 2799, also known as the Decriminalizing Artistic Expression Act, introduces new factors for California courts to consider in weighing the admissibility of creative expressions offered as evidence in criminal proceedings.[2]

California’s existing code permits its courts to exclude proffered evidence if the probability that admission will create a substantial danger of undue prejudice substantially outweighs its probative value.[3] AB 2799 affects both sides of this determination. On the one hand, courts must now consider the probative value from a creative expression for its literal truth as minimal, subject to specified conditions.[4] On the other hand, courts must also consider whether a jury or judge trying fact will treat the creative expression as evidence of a defendant’s propensity for violence or criminal disposition and whether admission might inject racial bias into the proceedings.[5]

Though AB 2799 applies to all forms of creative expression,[6] it seeks to combat racial bias in criminal proceedings and a specific prosecutorial strategy: using rap lyrics as evidence of artists’ guilt.[7] An early example of this strategy is the 1996 trial involving rapper Snoop Dogg, who faced a first-degree murder charge for the death of a rival gang member.[8] The prosecution introduced Snoop Dogg’s song “Deep Cover” with Dr. Dre[9] into evidence and sought to infer criminality and guilt from a lyrical reference to California’s penal code for murder.[10] The district court ultimately acquitted Snoop Dogg,[11] who recorded the song for the soundtrack of a 1992 crime thriller – also titled “Deep Cover” – about an undercover police officer working to bust a West Coast drug cartel.[12]

Moreover, AB 2799’s passing comes after the high-profile arrests and indictment of rappers Young Thug and Gunna earlier this May.[13] The rappers were two of twenty-eight defendants charged with violations of the Racketeer Influenced and Corrupt Organizations (RICO) Act, murder, armed robbery, and criminal street gang activity, among other charges.[14] Their indictment cites lyrics of their songs and details of their music videos in attempt to infer criminality and gang ties.[15] In a motion, Gunna’s lawyer called out the prosecution’s practice as intensely problematic, arguing that the rappers’ creative expressions are not a literal recounting of facts and circumstances.[16]

Over the past 30 years, researchers estimate that over 500 cases involved prosecutors engaging in these tactics.[17] A 2016 study by criminologists at the University of California, Irvine on the impact of genre-specific stereotypes on the evaluation of violent song lyrics stresses why this is an issue.[18] In the study, researchers presented two groups with an identical set of lyrics, telling one group that the lyrics were from a country song and the other that the lyrics were from a rap song.[19] Participants in the latter group found the lyrics more literal, offensive, and in greater need of regulation.[20]Ultimately, the study’s findings highlight how introducing rap lyrics into evidence could inappropriately impact jurors’ assessment of a criminal defendant’s guilt.[21]

But what about rap makes the genre vulnerable to racial bias and prosecutorial abuse? According to Erik Nielson and Andrea L. Dennis, co-authors of “Rap on Trial: Race, Lyrics, and Guilt in America,” one answer is that the primary producers of rap are young, Black men – a demographic that the criminal justice system happens to target.[22] Creative expressions in rap also often involve first-person narration, criminal themes, and violent imagery.[23] Tricia Rose, author of “The Hip Hop Wars: What We Talk About When We Talk About Hip Hop – and Why It Matters,” points to long-standing racist stereotypes that Black people are violent, hypersexual, criminal, and unintelligent.[24] Rose further notes the misconception – held especially by White fans – that the effectiveness of rap comes from artists performing a criminal persona in art and culture.[25]

Notably, AB 2799 acknowledges the significance of recent research and commentary on rap’s controversial relationship with the American legal system.[26] If offered by either party in addition to the proffered evidence, AB 2799 permits courts to consider “credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression” and “experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.”[27]

AB 2799, however, does not come without its critiques. For instance, Nielson speculates how effective AB 2799 will be given California prosecutors’ lack of opposition to the bill and the fact that California is the worst offender when it comes to prosecutors employing this type of strategy.[28] Alternatively, Nielson suggests taking AB 2799 a step further by instating a shield law that prohibits parties from introducing creative expressions into evidence, like how rape shield laws prohibit parties from introducing a victim’s sexual history into evidence.[29]

Nonetheless, AB 2799 is the first of its kind in the nation and received wide celebration upon its signing.[30] Governor Newsom noted, “California’s culture and entertainment industry set trends around the world and it’s fitting that our state is taking a nation-leading role to protect creative expression and ensure that artists are not criminalized under biased policies.”[31]

Similar pieces of legislation are currently at play on the state and federal levels. At the federal level, Congressmen Hank Johnson (D-GA) and Jamaal Bowman (D-NY) introduced the Restoring Artistic Protection (RAP) Act.[32] The RAP Act seeks to protect artists by adding presumptions to the Federal Rules of Evidence like those introduced to California’s Evidence Code through AB 2799.[33]  In New York, State Senator Brad Hoylman introduced Senate Bill S7527, also known as the Rap on Trial Bill, which likewise seeks to limit the admissibility of a defendant’s creative or artistic expression as evidence in criminal proceedings.[34] Although the RAP Act and Rap on Trial Bill face an uncertain future, AB 2799’s social significance, popularity, and unanimous passing through the California Senate and Assembly[35] is perhaps a good indication of their prospect.

[1] Allison Hussey, California’s Rap Lyrics Bill Becomes State Law, Pitchfork (Sept. 30, 2022), https://pitchfork.com/news/californias-rap-lyrics-bill-becomes-state-law/.

[2]  Decriminalizing Artistic Expression Act, ch. 973, 2022 Cal. Stat 94 (2022) (to be codified at Cal. Evid. Code § 352.2)(effective Jan. 1, 2023).

[3] Id.

[4] Under AB 2799, the probative value from a creative expression for its literal truth must be considered minimal “unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available.” Id.

[5] Id.

[6] Under AB 2799, “‘creative expression’ means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including, but not limited to, music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.” Id.

[7] Id.

[8] Kim Bellware, California Makes It Harder to Use Lyrics as Evidence Against Rappers, Wash. Post (Oct. 2, 2022, 9:00 AM), https://www.washingtonpost.com/lifestyle/2022/10/02/california-rap-lyrics-law/.

[9] Dr. Dre, Snoop Dogg, Deep Cover, on Deep Cover (Sony Music Ent. 1992).

[10] Bellware, supra note 8.

[11] Id.

[12] Deep Cover (New Line Cinema 1992).

[13] Evan Minsker, Young Thug and Gunna Indicted on Racketeering Charges, Prosecutors Call YSL a “Criminal Street Gang”, Pitchfork (May 9, 2022), https://pitchfork.com/news/young-thug-arrested-on-racketeering-charges/.

[14] Id.

[15] Bellware, supra note 8.

[16] Id.

[17] The number is likely in the tens of thousands if considering sealed indictments, juvenile cases, and plea bargains. See Bellware, supra note 8. 

[18] Adam Dunbar, Charis E. Kubrin & Nicholas Scurich, The Threatening Nature of “Rap” Music, 22 Psych., Pub. Pol’y, & L. 280-92 (2016),https://psycnet.apa.org/fulltext/2016-37105-002.pdf.

[19] Id. at 280.

[20] Id.

[21] Id.

[22] Jeremy Wang-Iverson, Rap on Trial: Conversation with Erik Nielson and Andrea L. Dennis, Vesto (Apr. 17, 2020), https://vestopr.com/rap-on-trial-conversation-with-erik-nielson-and-andrea-l-dennis/.

[23] Id.

[24] Bellware, supra note 8.

[25] Id.

[26] Decriminalizing Artistic Expression Act, ch 973, 2022 Cal. Stat 94 (2022) (to be codified at Cal. Evid. Code § 352.2)(effective Jan. 1, 2023).

[27] Id.

[28] Bellware, supra note 8.

[29] Id.

[30] James Mills, Calif. Restricts Use of Rap Lyrics in Criminal Trials, Law360 (Oct. 3, 2022, 4:24 PM ), https://www.law360.com/media/articles/1536125?utm_source=rss&utm_medium=rss&utm_campaign=section.

[31] Shawna Mizelle, California Gov. Newsom Signs Bill Limiting the Use of Rap Lyrics as Evidence in Criminal Proceedings, CNN (Oct. 1, 2022, 12:50 AM), https://www.cnn.com/2022/10/01/politics/rap-lyrics-in-court-california-gavin-newsom/index.html.

[32] Ashley King, Restoring Artistic Expression (RAP) Act Introduced in the US House of Representatives – “Bob Marley Did Not Confess to Having Shot a Sheriff”, Digit. Music News (July 27, 2022), https://www.digitalmusicnews.com/2022/07/27/restoring-artist-protection-act-us-house/.

[33] Id.

[34] Sophie Caraan, New York State Senate Passes Bill Limiting Use of Lyrics as Evidence, Hypebeast (May 19, 2022), https://hypebeast.com/2022/5/new-york-state-senate-passes-bill-s7527-limits-use-lyrics-as-evidence-in-court.

[35] Mills, supra note 30.