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'If You Decide To Admit Your Crimes Over A Beat, [We're] Going To Use It'



The conversation surrounding use of rap lyrics in criminal prosecution has resurfaced after a second

indictment for gang-related criminal activity relying in part on rap lyrics. Fulton County District Attorney

Fani Willis spoke about the indictments, and addressed the critics, saying, “if you decide to admit your

crimes over a beat, [we’re] going to use it.”


A May 2022 indictment charged Young Thug (Jeffery Lamar Williams) and Gunna (Sergio Giavanni

Kitchens) --alleged members of Young Slime Life – with 56 counts including racketeering and criminal

street gang activity; an additional six counts for guns and drugs were added in August. The lyrics cited in

the indictment identify Williams and Kitchens as members of YSL and allegedly mention Donovan White,

Jr., a rival Atlanta gang member murdered in 2015 in a drive-by shooting from a car rented by Young

Thug.


In August, a 220-count indictment of 26 alleged members of the Drug Rich gang for racketeering,

criminal street gang activity, kidnapping, armed robbery, assault, home invasions, auto theft, and

others, also relied in part on rap lyrics.


On the home invasion counts, Willis cited lyrics from a YouTube

rap video involving Drug Rich gang members that stated “me and my crew striking out/Striking in all

black/Send me the drop, we’ll kick in the house.”


Courts have been grappling with prosecutors’ use of lyrics, primarily rap lyrics, for several years. Most

often, appellate courts have affirmed a trial court ruling admitting lyrics. When lyrics are rejected, the

explanations vary.


The most common reason is that prosecutors offered them as character evidence.

With little room in state and federal rules of evidence for the use of character or prior bad acts

evidence, this is a difficult strategy for prosecutors to navigate.


Another emerging challenge for prosecutors in introducing lyrics is when the expressions themselves are

the charged criminal conduct. In the United States Supreme Court case of Elonis v. United States,


Anthony Douglas Elonis (“Tone Dougie”) was charged with threatening for a series of posts on social

media involving “crude, degrading, and violent” rap lyrics about his ex-wife, co- workers, a kindergarten

class, and an FBI agent who’d visited Elonis at his home. In 2014, the court held that Elonis’s convictions

were based on an incorrect jury instruction as to Elonis’s culpable mental state – negligence, a standard

which “lacks awareness of wrongdoing” – and overturned Elonis’s conviction.


The court mentioned the First Amendment only to note that it need not address it as the culpability analysis resolved the issues.


Justices Samuel Alito and Clarence Thomas dissented separately. Both argued that the majority’s

conclusion that negligence was not the correct culpable mental state announced what the “law is not”

rather than “what the law is.” Thomas predicted a resulting confusion about what is criminal conduct for

“everyone from appellate judges to everyday Facebook users.”


The courts have found it far less problematic where, as DA Willis intends, lyrics are offered by the state

as defendant’s admissions to the charged conduct. An oft cited case by critics, is Tommy Canady’s.


Canady was sentenced to life at 17-years-old for a murder two years earlier. In Canady’s trial, the

prosecutor introduced a rap song that Canady released on Soundcloud within days of Semar McClain’s

murder.


With little direct evidence, and some circumstantial evidence, the prosecution argued that

certain lyrics were consistent with the details of the crime including a mention that victim Semar had

been “caught slipping.” Canady argued that the lyrics were not autobiographical and that they did not

name Semar, and instead referenced the slang term “a mawg.”


Legislators in California, New York, and the U.S. House of Representatives have introduced bills to

amend the state and federal rules of evidence by adding a rule specifically focused on trial courts

evaluating the admissibility of creative or artistic expression.


The three bills would essentially impose a heightened relevance inquiry for courts considering admission of a variety of mediums where there is “creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols.”