Perez on A Critical Analysis of Rap Shield Laws

Alexa Perez, Drake University Law School, is publishing A Critical Analysis of Rap Shield Laws in volume 110 of the Cornell Law Review. Here is the abstract.

For years, scholars have been sounding the alarm on "rap on trial," or the use of rap as evidence in criminal proceedings, pointing out that the fundamental characteristics of rap music make it uniquely susceptible to misinterpretation and prejudice. Scholars have also cautioned that rap on trial has the potential to chill artistic expression in violation of the First Amendment. The heavy reliance on rap lyrics in the recent RICO prosecution against rapper Young Thug has shed a renewed spotlight on the rap on trial concerns. In response to these growing concerns and a perceived gap in evidence law, state and federal legislators have proposed, and in some states enacted, statutes that seek to limit the use of rap lyrics as evidence-what this Article refers to as "rap shields." This Article provides the first critical analysis of rap shield proposals. More specifically, this Article demonstrates that rap shield laws are largely duplicative and, therefore, unnecessary from both an evidentiary and constitutional standpoint. Nevertheless, from a social justice standpoint rap shields serve important functions that may justify their enactment, such as offering guidance that increases judicial scrutiny and decreases judicial discretion. Those benefits, however, come with unintended costs-costs that may outweigh the important functions rap shields serve-including impeding defendants' right to present a defense. This Article concludes that the administration of justice may be better served and the concerns with rap on trial better addressed when the firmly rooted canons of evidence law are stringently applied rather than amended.

Download the article from SSRN at the link