Lawmakers in California gave final approval Monday (Aug. 22) to legislation that would restrict when prosecutors can cite rap lyrics as evidence, a first-of-its-kind legislative victory against a practice that critics say can sway juries by playing to racial bias.
Days after the state Senate approved AB 2799 unanimously, the state Assembly re-voted Monday in favor of a bill it had already passed months earlier, the final hurdle necessary to clear the legislature. The Assembly vote sends the bill to Gov. Gavin Newsom, who is expected to sign it into law.
The new law would effectively ban such lyrics from the courtroom unless prosecutors can show that they are directly relevant to the facts of the case and won’t “inject racial bias into the proceedings,” among other hurdles to using them.
After a similar effort stalled in New York earlier this year, California will be the first state to limit when rap can enter a courtroom. Critics have long bemoaned the tactic, saying it unfairly penalizes hip-hop and can sway juries by playing to racial bias, all while providing little real evidentiary value. But the practice has taken on new urgency since May, when Young Thug and Gunna, two of rap’s top young talents, were hit with an indictment in Georgia on gang charges that repeatedly quoted their lyrics.
In technical terms, AB 2799 would create a so-called presumption against the use of any creative expression as evidence – meaning not an outright ban, but a hurdle for prosecutors to overcome. The law would require courts to hold that such evidence offers “minimal” value unless the state can show that the expression was created near in time to the crime; bears a level of similarity to the crime; or includes “factual details” about the crime are not otherwise publicly available.
That type of presumption was also the centerpiece of New York’s failed legislation, but the new California law goes even further, like an express requirement that judges consider whether such evidence will “inject racial bias into the proceedings.” It also notably requires that courts consider testimony on the particular genre of expression being cited by prosecutors – a nod to the fact that experts say hip-hop’s unique conventions are often weaponized when lyrics are cited in court.
The bill would also require courts to admit testimony about “experimental or social science research” showing that a particular genre “introduces racial bias into the proceedings.” Multiple empirical studies have shown that jurors view hip-hop lyrics as more dangerous than those from other genres, even when they cover the exact same words.
With the passage of California’s law, the question becomes whether other jurisdictions will follow suit. The New York legislation passed that state’s Senate in May before failing to get a vote in the Assembly; lawmakers in Albany have vowed to re-introduce the bill next session. Lawmakers in Washington, D.C. have also introduced similar restrictions for federal prosecutors, but it faces a far less certain outcome in a sharply-divided U.S. Congress.