Young Thug, Gunna indictment spotlights use of rap lyrics as courtroom evidence

Two American rappers were indicted on gang-related charges last week, with prosecutors citing their lyrics and music videos as evidence a strategy that has been widely documented and criticized both in the U.S. and Canada.

The 88-page indictment filed in Georgia's Fulton County alleges that Young Thug an Atlanta rapper who co-wrote This is America with Childish Gambino is the co-founder of a gang called Young Slime Life (YSL). Gunna, a prominent rap artist on Young Thug's YSL label, was also charged.

The gang has allegedly committed multiple murders, shootings and carjackings over the last decade or so, promoting its activities via song lyrics and social media, according to prosecutors involved inthe indictment.

The two are charged with conspiring to violate the RICO Act, a U.S. law that targets criminal organizations. The indictment refers to multiple music videos by Young Thug, including the following lyric: "I never killed anybody but I got something to do with that body," and, "I told them to shoot hundred rounds."

The case is the most high-profile instance in recent memory of rap music being put on trial. Scholars say that regardless of a defendant's guilt, using rap lyrics and music videos as evidence of crime unfairly targets young Black men and taps into stereotypes about the genre.

A 'double standard'

In Canada, more than a dozen cases have been documented in which rap lyrics were used both by prosecution and defence lawyers, but critics say the practice disregards important contextual elements of rap music, like artistic expression, the adoption of alter egos and the use of hyperbole.

The rap community including rappers Jay Z, T.I. and Meek Mill has long been vocal in its criticism against the use of rap lyrics in the courtroom.

After news of Young Thug and Gunna's indictment, Toronto rapper Cadence Weapon took to Twitter to condemn the use of lyrics as evidence of wrongdoing.

"Why is artistic license viable for some artists but not for others?" he asked, citing the famous Johnny Cash lyric from 1953's Folsom Prison Blues: "But I shot a man in Reno / just to watch him die."

"Certain artists can play the outlaw, use artistic license and be celebrated for it," he tweeted. "When rappers do the same, their art is turned into evidence. This double standard needs to end."

The rapper, whose real name is Roland Pemberton, declined to be interviewed for this article.

American record producer Metro Boomin also expressed discontent with the indictment on the social media platform, writing that using song lyrics to indict someone is "lame" and "a joke".

A.R. Shaw, an Atlanta-based music historian on trap music (a rap sub-genre with lyrical content addressing drug use and drug-related violence) said that this is "probably the most high-profile case in terms of rap lyrics being used" for an indictment.

The practice has been criticized as discriminatory because of rap music's association with the Black community.

"It's definitely unfair in its racial implications, because the artists are predominantly Black," Shaw said.

A form of artistic expression not autobiography

Rap artists often take on alternate personas or tell stories from their communities as a form of artistic expression, said Dijah SB, a Toronto-based rapper.

That isn't to say that all rap lyrics are fictional or mined from other people but there's a misconception that rappers are constantly using autobiographical material in their music, the rapper said.

"As much as people like to think that everything a rapper says is directly something that they've experienced or they've gone through, a lot of the times it's just, more so, a tool to express ourselves," they said.

The permitted use of rap lyrics as courtroom evidence has been observed in at least 19 criminal cases in Canada, according to a 2016 paper by University of Windsor law professor David Tanovich.

In 2012, Lamar Skeete, who goes by the stage name Ammo, was convicted of first-degree murder in the shooting of a man named Kenneth Mark. Included in the evidence against Skeete were the song lyrics "don't crack to the coppers," which prosecutors said demonstrated that he followed a code of silence.

Skeete's 2019 appeal that the lyrics were improperly allowed into evidence was denied, and he is serving a life sentence.

Mark Moore, an aspiring rapper from Toronto, was sentenced to life in prison in 2010 for the murder of four men.

The Crown argued that Moore's lyrics "reflect that he felt that having a reputation on the street for violence was a critical aspect of success as a rap singer." They added that his lyrics suggested he wanted revenge for having been shot himself in 2001.

Defence tries to put lyrics in context for a jury

Moore's defence team asked for parts of the evidence to be dismissed due to irrelevance, but the judge deemed that the evidence was admissible, according to court files from CanLii.

In another instance, Toronto rapper Heartless G, whose real name is Chael Mills, and associate Lavare Williams had six music videos and lyrics admitted as evidence against them during a murder trial. They were charged and convicted of first- and second-degree murder, respectively, in 2013.

Tanovich wrote in a 2016 article for The Walrus that the case marked the first time that so many rap lyrics and videos were admitted in a Canadian courtroom, "undoubtedly" swaying the jury.

In one standout case, a judge ruled that rap lyrics were inadmissible for evidence. When Orville Campbell's lyrics were submitted during a 2012 murder case "One shot / leave your brains on your Nikes" and "One shot / make you flip like gymnastics" the prosecution was denied. Campbell was convicted regardless of the exclusion.

Before that case, only two cases had been identified in which lyrics were deemed inadmissible for evidence, including one which involved the serial killer Paul Bernardo, a white man.

Hilary Dudding, a Toronto criminal defence lawyer who defended Campbell during that trial, said that there is a significant parallel between the Young Thug/Gunna case and Canadian cases in which rap lyrics have been deemed admissible as evidence.

"The cases where we see admission in Canada tend to be cases where they're being used to prove the existence of a criminal organization, which is the same thing that they're trying to do in Gunna's case, with the YSL indictment," she said.

A 'prejudicial impact'

Dudding explained that defence teams have fought for the right to bring in a rap expert who can contextualize the art form so that the words are not just taken at face value.

The intent is for the jury "to be able to understand why people would choose these themes, what the process is for artists as they develop their music," she said.

"Studies have shown time and time and time again that there is a strongly prejudicial impact that comes from the admission of rap music into trials, and that can't be denied."

Prosecutors often present rap lyrics as being autobiographical rather than as a form of artistic expression and doing so can tap into stereotypes against Black people, particularly young men, writes Erik Nielson, an American scholar who studies hip hop culture.

From Nielson's research of U.S. cases, documented in the 2019 book Rap on Trial: Race, Lyrics, and Guilt in America co-authored by Andrea Dennis, the vast majority have ended in conviction with lengthy sentences and one in capital punishment.

"The question is not whether these young men committed the crimes they were convicted of," Nielson wrote in a 2020 article. "The question is whether they received a fair trial from an unbiased jury. When rap lyrics are introduced as evidence, that becomes highly dubious."

Like Cadence Weapon's invocation of Johnny Cash, some argue that rap is the only genre in which someone could write a violent lyric and have it be perceived as prejudicial or confessional.

The odds are already stacked against Black artists: the Canadian Civil Liberties Association in 2021 released a report outlining anti-Black racism within the Canadian criminal justice system.

In the U.S., the New York state legislature passed a bill this week called "Rap on Trial," which requires that lyrics be proven as literal not figurative or fictional in order to be admissible as evidence.

To Dudding's knowledge, no such reforms exist in Canada though some efforts have been made to allow lawyers to screen jury members for racial bias.