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UC Law Journal

Chris Kenefick

Abstract

Rap music has earned its prominent place in American music culture.1 It provides a unique creative outlet for artists to share their experiences and criticize the systems in which they live. Rap lyrics, often metaphorical or exaggerated, have been weaponized by prosecutors to attack the character of artist-defendants at a level not seen with other modes of creative expression. The lyrics of an artist are turned against them in a manner that invites unfair prejudice and improper character evidence into legal proceedings. In the 2020s, major progress has been made to curb this practice, with several jurisdictions introducing legislation that would limit the use of creative expression, such as rap lyrics, as evidence in trials. While these proposed laws are a significant step to protecting creative expression, they leave gaps that allow prosecutors to continue their misuse of lyrics as evidence. This Note argues that an effective creative expression evidence rule must have the following characteristics: (1) a presumption of inadmissibility, (2) a distinct framework to investigate whether a lyric can be properly interpreted literally, thereby rebutting the presumption of inadmissibility, (3) an exception for lyrics that create a cause of action by themselves, and (4) a requirement that creative expression evidence be presented to a jury in the least prejudicial medium available. This Note invites legislators wishing to protect creative expression to consider Rule X, a model rule that combines the strengths of current legislation to strike a balance between protecting creative expression and ensuring such expression cannot be used to shield wrongdoings or genuine confessions with immunity.

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