Dr Abenaa Owusu-Bempah, LSE, a.owusu-bempah@lse.ac.uk
The title quote is borrowed from the Texas Court of Criminal Appeals case, Hart v State of Texas. In this case, rap lyrics and videos unrelated to the crime charged helped secure the appellant’s conviction for murder. The music (which referenced weapons, cough syrup, and being a ‘trap king’) had been introduced at trial to counter the appellant’s assertion that, being of low intelligence, he naïvely drove acquaintances to the victim’s home, not understanding he was taking them to commit robbery and murder, as well as his claims of being a friendly person. According to prosecutors, the music related to his ability to understand what people are communicating to him and form his own opinions about things. Thankfully, the appellate court saw through the prosecution narrative, agreeing with the appellant that the music was ‘just rap’, and finding that ‘any probative value of the rap videos and lyrics was outweighed by the overwhelming potential for prejudice and confusing the issues.’ While the appellant’s conviction for murder was quashed, the case exemplifies how prosecutors can misuse rap music to undermine defendant vulnerability, a tactic which also occurs in England and Wales.
What does rap tell us about character or capacity?
As most will know, rap is a hugely popular genre of music. Originating in 1970s New York, it is a form of Black cultural expression, with roots in earlier genres and cultural activities, including blues, jazz, and ‘playing the dozens’. Over the past five decades, rap has become a global phenomenon. Some subgenres of rap, such as drill, are provocative and inflammatory. Drawing from the earlier ‘gangsta rap’ subgenre, drill artists capitalise on societal fascination with criminal street culture for financial and social gain, with young people able to build digital followings and monetise online engagement. While the music may appear authentic, rap is an art of storytelling. It relies heavily on boasting, hyperbole, symbolism, figurative language and metaphor, privileging lyricism over literalism.
Given the complexity of rap, and the linguistic skills displayed by some rappers, some may think that engagement in rap culture is indicative of cognitive or communicative ability. Afterall, rappers are among the most talented writers and performers. However, while rap is a sophisticated genre with a rich history and immense social and cultural significance, there is no particular level of intelligence or maturity required to engage with it. Rappers often rely on lyrical formulas and stock content which can easily be emulated. Also, music videos within subgenres of rap, such as drill, tend to have a particular aesthetic.Just as rap tells us little about one’s criminal behaviour or dispositions, we cannot simply infer capacity or intellectual ability from participation in rap culture, at least not without an expert assessment of the defendant and their creative endeavours.
Yet, prosecutors in England and Wales have been relying on rap as evidence in criminal trials for at least twenty years. Researchers have begun scrutinising the practice of ‘prosecuting rap‘, revealing how ‘street illiterate’ police and prosecutors misinterpret rap and conflate rap persona with real-life character, presenting lyrics and videos as autobiographical accounts of defendants’ criminal exploits. Also, where rap is admitted as evidence, it is often irrelevant to the issues in the case, opening the door for miscarriages of justice. However, there has been little examination of the vulnerability of defendants in rap cases, or of how ‘rap evidence’ becomes a means of both obscuring and amplifying vulnerability.
Rap, vulnerability and adultification
Many defendants in rap cases are vulnerable by way of age. Quinn, Pritchard and Kane’s scoping study, Compound Injustice, compiled a dataset of 68 cases involving rap evidence between 2020 and 2023. These cases involved 252 (mostly Black) defendants. At the time of trial, 15 percent of defendants were under 18, and 67 percent were 18-24 years old. The proportion of child defendants is greater in my research of English appellate case law. Within a dataset of 50 Court of Appeal cases where rap music was used as evidence at trial or sentencing, 29 involve at least one child defendant, most being Black boys.
One such case is R v NHF [2022] EWCA Crim 859, where participation in a music video was used to counter the defendant’s status of victimhood – a status which can warrant special defences and mitigation. At his trial forsupply of drugs as part of a ‘county line’ operation, dancing in a drill video became evidence that the applicant ‘was a willing associate of this gang’ and not a victim of modern slavery as he claimed. The applicant was aged 17 at the time of trial, autistic, and had a history of abuse. He testified that he had been unaware of the content of the lyrics at the time of filming and thought being in the video would be fun. Had this explanation been taken seriously and considered in the light of the aesthetics of drill music, it would be easy to appreciate that dancing in a music video does not equate to gang membership. Moreover, even if it were a gang video, it should not be surprising that a vulnerable young person under the gang’s control would be in the video. The Court of Appeal did not address the admissibility of the video, instead granting the application for leave and allowing the appeal because the judge misdirected the jury on the modern slavery defence.
More generally, ‘rap evidence’ can be used to adultify Black children in court, concealing or denying their vulnerability. Adultification is a form of bias whereby Black children are perceived (and presented) as less innocent, less vulnerable, more ‘street wise’, and more adult-like, than their non-Black peers. By stripping rap of its social and cultural context, what may simply amount to childish fun becomes indicative of criminality and gang membership, transforming children into racialised objects to be policed. Rap can easily be stripped of its context in court because, like many forms of Black cultural expression before it, rap has been scrutinised and villainised by police, politicians, and the media. It has been viewed as a source of incivility and pursued as a source of danger. Other racialised youth cultural signifiers, such as the ‘money phone’ image, popular among rappers and celebrities, have also been misused as evidence of gang membership. Even the fashion choices of some Black children become evidence of criminality.
A confused prosecutorial tactic
There are contradictions in prosecutor’s treatment of rap. Perversely, attempts to present defendants as more mature, criminally capable, or autonomous than they are, is likely to exacerbate vulnerability in court. When rap persona is conflated with real-life character, the defendant’s dignity, agency, and autonomy is undermined, as this conflation is often based on racialised stereotypes of threat and danger, and that Black young people lack the intellect to engage in (or with) a complex form of cultural expression. ‘Rap evidence’ thus acts to belittle and ‘other’ defendants in court, which is worsened when defendants’ explanations for their engagement with rap are not duly considered. At the same time, and revealing of a further contradiction, presenting rap as a marker of maturity, capacity, or comprehension, requires at least implicit acknowledgement of the complexity and artistry of the genre, even where it is being denigrated and mistreated as literal. In short, prosecutors can twist and contort participation in rap culture to project an image of the defendant that best serves their case.
Art Not Evidence
The case of ‘rap evidence’ demonstrates that, beyond access to special measures and trial adjustments, fair treatment of vulnerable defendants depends on evidential practices and the construction of case narratives. As explained, rap is a complex art form that can be engaged in (and with) by all manner of people. To ensure that is not used erroneously and unfairly, there is a need for clear and structured admissibility criteria, such as that proposed by the Art Not Evidence campaign group.
References
J. Davis and N. Marsh, ‘Boys to Men: The cost of ‘adultification’ in safeguarding responses to Black boys’, (2020) 8 Critical and Radical Social Work 255
L. Fatsis, ‘Sounds Dangerous: Black Music Subcultures as Victims of State Regulation and Social Control’ in Harm and Disorder in the Urban Space: Social Control, Sense and Sensibility, eds. N. Peršak and A. Di Ronco (2021)
J. Ilan, ‘Digital Street Culture Decoded: Why Criminalizing Drill Music is Street Illiterate and Counterproductive’ (2020) 60 British J. of Criminology 994
JUSTICE, Third party Intervention Submission: R v Adedeji (2024)
A. Owusu-Bempah, ‘The Irrelevance of Rap’ [2022] Crim LR 130
F. Picinali, ‘Evidential Reasoning, Testimonial Injustice and the Fairness of the Criminal Trial’ (2024) 6 Quaestio Facti. International Journal on Evidential Legal Reasoning 201
E. Quinn, E. Kane and W. Pritchard, Compound Injustice: A Review of Cases Involving Rap Music Evidence in England and Wales (University of Manchester, 2024)
N. Stoia, K. Adams and K. Drakulich, ‘Rap Lyrics as Evidence: What can music theory tell us?’ (2018) 8 Race and Justice 330
F. Stuart, Ballad of the Bullet: Gangs, Drill Music and the Power of Online Infamy (2020)
C. Thapar, ‘The Moral Panic Against UK Drill Is Deeply Misguided’ Pitchfork, 12 September 2018
The Pulitzer Prizes, The 2018 Pulitzer Prize Winner in Music: DAMN., by Kendrick Lamar
N. Waller and T. Sultan, Joint Enterprise on Trial (APPEAL, 2025)
P. Williams and B. Clarke, ‘The Black Criminal Other as an Object of Social Control’ (2018) 7 Social Sciences 234
Hart v State of Texas (2024) No. PD-0677-22
R v NHF [2022] EWCA Crim 859
R v Oni [2025] EWCA Crim 12
Defending Vulnerability 