You Speak Hip-Hop? The Failure of Courts to Faithfully Gatekeep Law Enforcement Officers Testifying as Rap Experts in Criminal Cases

Introduction

In the criminal racketeering case of Jeffrey Williams (a/k/a Young Thug), the murder trial of Jamell Demons (a/k/a YNW Melly), and the murder-for-hire case of Durk Banks (a/k/a Lil Durk), prosecutors sought or are seeking to use the rap artists’ lyrics as incriminating evidence.^[1] The criminal cases of these popular rap artists have brought to the national consciousness and spurred a national debate about prosecutors using rap lyrics as criminal evidence.^[2] The debate has many strings, such as: Is the prosecutorial practice racist?^[3] What about the First Amendment?^[4] Why can prosecutors, judges, and juries not separate rap artists from their artistic expression and persona the same way they do actors, writers, and musicians of other musical genres?^[5]

While “rap on trial” is now the subject of a national discussion, the tactic and issue are not new.^[6] Prosecutors have been using rap lyrics and other rap expression (such as album cover art and music videos) for decades, and legal scholars, defense attorneys, and rap artists have been sounding the alarm about this particular brand of criminalizing hip-hop artistry for just as long.^[7] Indeed, the prosecutorial tactic has been the target of sustained analysis and criticism as a racist criminalization of a musical art form that is misunderstood, mischaracterized, and misused by the criminal legal system.^[8]

This Article adds to the criticism by highlighting a judicial failure associated with a specific mechanism that prosecutors use to transform rap lyrics into criminal evidence: law enforcement officers and agents (hereinafter collectively “law enforcement officers”) serving as testifying experts to translate, interpret, and explain a defendant rap artist’s lyrics and expression for judges and juries.^[9] As testifying experts, these law enforcement officers are the essential bridge between a defendant rap artist’s lyrics and expression and the government’s allegation that the lyrics and expression incriminate the defendant rap artist. Despite serving this essential role, the expertise and methodology of law enforcement officers serving as rap lyric experts often escapes exacting scrutiny.

This Article explores how judges are failing to gatekeep, as the rules of evidence require, the law enforcement officers who prosecutors offer as testifying rap experts. Too frequently courts allow law enforcement officers to interpret and translate rap lyrics as experts without sufficiently examining and vetting the officers’ qualifications and methodology. Instead of conducting a full vetting, judges routinely and instinctively point to the officer’s law enforcement experience as satisfying the qualification and methodology mandates of the rules of evidence. This short-cutting of gatekeeping expert testimony opens the door to juries being miseducated, improperly swayed, and unduly influenced by law enforcement officers who are not experts in rap music to the extreme prejudice of rap artists on trial for their freedom. This gatekeeping failure puts people’s liberty in unnecessary and undeserved jeopardy, further diminishes rap’s artistic protections by criminal courts, and reflects a persistent misunderstanding of rap music artistry by courts and large portions of the public. And because rap is a Black American artform that remains dominated by Black artists, the gatekeeping failure adds to the racial disparities and imbalances of the American criminal legal system. As this Article advocates, defense attorneys need to forcefully push courts to serve their gatekeeping role faithfully by subjecting law enforcement officers offered as rap lyric experts to the same exacting inquiry and inspection of their alleged qualifications and methodology used to measure and gatekeep experts offering medical, scientific, and other specialized testimony at trial.^[10]

I. RAP IS BLACK ART^[11]

Rap is a Black art form.^[12] As eloquently put by rap historian and scholar Tricia Rose, “[r]ap music is a [B]lack cultural expression that prioritizes [B]lack voices from the margins of urban America.”^[13] Rap is not art for art’s sake, but rather it has a particular function—to illuminate Black existence and its multi-varied experiences in order to educate, entertain, and instigate change and progress for Black people and Black communities.^[14]

Rap was born on the streets of New York City’s Black (and Latino) impoverished neighborhoods in the 1970s as young Black musicians shared experiences and stories of Black life over samples of music familiar to Black Americans that was initially packaged and promoted by Black entrepreneurs to Black audiences and consumers.^[15] There are numerous theories about the aesthetic and convention origins of rap.^[16] Some see rap’s origin in the Jamaican music tradition of “toasting”—speaking words (often in rhymes) over music—brought to New York by Jamaican immigrants who settled in the Bronx in the 1960s and early 1970s.^[17] Others trace rap’s origin story to West Africa’s storytelling culture.^[18] While some hold steadfast that rap is solely a Black American creation.^[19]

Whether its precise origin is the Caribbean, Africa, New York City, or some combination, most scholars agree that rap’s origin and evolution is inseparable from the Black American experience and traditions.^[20] Take Professor Mikah Thompson (a proponent of West African origin), who argues that rap is a continuation of the “Black Oral Tradition” that has “served as a fundamental vehicle for cultural expression and survival” for Black Americans.^[21] In support of her theory, Professor Thompson notes how rap incorporates unique conventions of the Black Oral Tradition: call and response (prompted audience participation); signifying and insult (performers boasting themselves and insulting their enemies); and figurative language (especially metaphor and double entendre).^[22] Similarly, Professor Imani Perry (of the Black American art form school), argues that rap’s four core characteristics make it inseverable from the Black American experience: (1) rap’s primary language is African American Vernacular English; (2) rap’s political location in society is “distinctly ascribed to [B]lack people, music, and cultural forms;” (3) rap is derived from “[B]lack American oral culture;” and (4) rap “is derived from [B]lack American musical traditions.”^[23]

No amount of commercialization, corporate manipulation, or diversifying of rap artists and consumers can sever the symbiotic relationship between rap and the Black American experience.^[24] American “Blackness” is the soul of hip-hop.^[25] Rap is a modern soundtrack of Black resistance, rebellion, and survival.^[26] It is the Black struggle for economic stability and prosperity, equality, living without constant threats to one’s mortality, and recognition as human beings that fuels rap’s creativity and ingenuity, as well as attracts consumers of all races.^[27] Rap’s sampling technique (incorporating and manipulating clips of other artist’s music) reflects the Black American tradition of taking and transforming scraps (often overlooked or disregarded) into something beautiful, moving, and nourishing (e.g., soul food).^[28]

That rap is Black art colors (no pun intended) the issue of focus here. To some scholars and commentators, because rap is Black art is a key reason that rap artistic expressions is allowed to be used as criminal evidence at a rate and in ways that other (non-Black) art is not.^[29] Others maintain that “rap on trial” is tied to judges and prosecutors misunderstanding Black culture that gives life to rap.^[30] Others discuss how the instinct to equate rap culture with criminal culture is rooted in the persistent bias that links Blackness with crime.^[31]

While not the focus of this Article, race is implicated in the judicial failure to gatekeep law enforcement officers testifying as rap experts.^[32] Rap artistic expression (as discussed in the next section) is used as criminal evidence far more than any other artistic expression, and within music, the frequency compared to white genres such as country and rock (notwithstanding their ignored Black roots) on its face reeks of plain disparate treatment.^[33] The evidentiary use of rap expression relies on, and appeals to, racist fears of Black people in the pursuit of convictions and imprisonment.^[34] To borrow a warning conveyed by the esteemed Honorable A. Leon Higginbotham after decades on the federal bench, when prosecutors use rap as criminal evidence it triggers (white) fear of Black violence and “elaborate and detailed myths about African Americans are ushered into the conscious and unconscious minds of courtroom participants.”^[35] Moreover, as Judge Higginbotham understood, the harm is not confined to the courtroom or the particular defendant because society looks to courts for interpreting, upholding, and enforcing the law without preference or prejudice.^[36] Therefore, “instances of racism in the courtroom,” like the evidentiary use of rap lyrics, “are particularly powerful symbols that act to legitimate, reinforce, and perpetuate the culture of racism operating in society as a whole.”^[37]

Simply put, the prosecutorial practice of using rap lyrics as evidence, devalues rap as art, which in turn devalues and dehumanizes Black people and enables America’s addiction to white supremacy. Or, as W.E.B. Du Bois recognized in 1926: “until the art of the [B]lack folk compels [sic] recognition they will not be rated as human.”^[38]

II. RAP ON TRIAL

Federal and state prosecutors, with judicial approval, have been using rap lyrics and expression as criminal evidence since the early 1990s.^[39] The tactic has been used in over 800 cases and growing.^[40] Given the crime-related subject matter of many rap songs and the “street life” persona attached to rap, rap lyrics often emerge as evidence in drug, gang, and violent crime cases.^[41] No other music genre has been used as criminal evidence nearly as often.^[42] Indeed, to compare the use of rap as criminal evidence to the same use of all other music genres combined is akin to comparing an ocean to a puddle.

There is an abundance of scholarship explaining, tracing, and exploring the prosecutorial practice of using rap artistic expression as criminal evidence.^[43] For the purposes here, how prosecutors use rap artistic expression as criminal evidence is summarized. Prosecutors introduce and frame rap lyrics in criminal cases for four principal purposes: (A) as a confession; (B) to establish association with a criminal gang or group; (C) to establish (criminal) knowledge, motive/intent; and (D) to prove a threat offense.^[44] Each purpose is discussed briefly next.

A. Confession

Rap lyrics are frequently introduced and framed in criminal cases as inculpatory confessions of the defendant.^[45] Prosecutors portray a defendant’s rap lyrics as literal, autobiographical, and accurate reports of actual events and thoughts of the defendant.^[46] The intent of the tactic is straight-forward and simple: to have a jury equate a defendant’s rap lyrics with a confession on par with a self-incriminating confession obtained through a custodial interrogation or a wiretap.^[47]

A prime example of rap lyrics framed and admitted as a confession is United States v. Stuckey.^[48] In addition to drug trafficking and money laundering, Stuckey was convicted of killing a former police officer to keep him from cooperating in the federal prosecution of Stuckey for cocaine trafficking and related offenses.^[49] At trial, a cooperating government witness (a drug dealer associated with Stuckey) testified to witnessing Stuckey kill the former officer.^[50] The cooperator testified that he saw Stuckey shoot and kill the former officer, and then (with the aid of others) wrap the victim’s body in plastic, tie-up the wrapped body with rope, place the body in the trunk of a car, and later dump the body in an alley.^[51]

As evidence for the murder charge, federal prosecutors introduced at trial the following handwritten rap lyrics composed by Stuckey:

I expose those who knows;
Fill they bodys wit ho[l]es;
Rap em up in blankit;
Dump they bodys on the rode.^[52]

The trial court admitted the lyrics as a confession by Stuckey, and the Sixth Circuit affirmed the decision.^[53] To the trial court, Stuckey’s argument that his lyrics were not relevant was nonsense: “You can certainly not say when somebody writes about killing snitches, that it doesn’t make the fact that they may have killed a snitch more probable.”^[54] The Sixth Circuit agreed, finding that the lyrics were a confession to the charged crime: “Stuckey’s lyrics concerned killing government witnesses and specifically referred to shooting snitches, wrapping them in blankets, and dumping their bodies in the street—precisely what the Government accused Stuckey of doing to [the victim] in this case.”^[55] To the appellate court, the lyrics were just as much a confession as if the lyrics specifically named the victim or Stuckey spoke the lyrics in conversation with a third person or during a custodial interview by law enforcement.^[56]

The Sixth Circuit was not troubled by the factual differences existing between Stuckey’s lyrics and the victim’s murder, including: (a) the victim was wrapped in a plastic (not a blanket); and (b) the victim’s body was dumped in an alley (and not on a road). In fact, the Sixth Circuit, recognized that there were factual differences between the lyrics and the murder.^[57] The differences, the circuit court maintained, did not undermine the relevancy and admissibility of the lyrics, but rather went to the “strength of the evidence, which the jury was in the proper position to determine.”^[58]

B. Association

Gang cases, i.e., criminal cases involving violence and drug trafficking committed by gangs/gang members, are frequent and common.^[59] Rap lyrics are a popular source of evidence for prosecutors seeking to establish a defendant’s association with a gang.^[60] Typically, a law enforcement gang expert testifies that certain words, phrases, or imagery in a rap song or video reflect the defendant’s membership in gang or loyalty to a gang or gang culture generally.^[61]

Courts allow prosecutors to use rap lyrics to establish gang association even if there are questions about the authorship or origination date of the lyrics.^[62] Take for instance, People v. Olguin, where co-defendants and alleged gang-associates Olguin and Mora were charged with killing a rival gang member during a fight over gang territory.^[63] Three weeks after the killing, investigators found two handwritten rap songs in Mora’s home.^[64] One song identified its composer as “Vamp,” which was Mora’s gang name.^[65] The other song identified its composer as “Franky”–which the court noted could be “a nickname easily derived from ‘Francisco,’” Mora’s first name.^[66] Over the defendants’ objections, the lyrics were admitted as evidence in the trial that ended with convictions for Mora and Olguin.^[67]

On appeal, Mora’s attorney argued that the handwritten lyrics were inadequately authenticated because the government failed to sufficiently show that Mora was the author of the lyrics and that there was a temporal nexus between when the lyrics were written and the victim’s murder.^[68] The appellate court brushed aside this challenge finding that “[b]oth the content and location of [the handwritten songs] identified them as the work of Mora.”^[69]

Because the songs were “adequately authenticated as the work of Mora,” when the songs were composed had no bearing on their admissibility, according to the appellate court.^[70] Because the charged killing was allegedly gang-related, the appellate court concluded that the lyrics were relevant, probative, and properly admitted.^[71] As to the timing of the lyrics’ authorship, the appellate court held that “[r]egardless of whether [they] were written before or after the killing,” the lyrics were admissible and probative because “they demonstrated [Mora’s] membership in Southside [gang], his loyalty to it, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the killing.”^[72]

C. Knowledge & Motive/Intent

Sometimes a rap artist defendant’s lyrics are too attenuated from the facts of case to be deemed a confession. Not only are the lyrics unmoored from the case facts, but their inflammatory nature too easily cast the defendant as having bad character prone to commit crimes. This presents a problem for prosecutors because bad character/propensity evidence is widely understood as offering minimal probative value on balance against the prejudice it interjects into a trial.^[73] Such evidence, “subtly permits the trier of fact to reward the good man [and] to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.”^[74] As a result, federal and state evidence rules generally bar the admission of bad character and propensity evidence.^[75] At the federal level, the bar is Federal Rule of Evidence 404. Federal Rules 404(a) and (b) prohibit evidence of “a person’s character or character trait” as well as “[e]vidence of any other crime, wrong, or act . . . to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”^[76] States have a similar rule that often mirrors the language of the federal rule.^[77]

Helpful for prosecutors eager to use a defendant’s rap lyrics, the prohibition comes with exceptions that provide a sufficient backdoor for admitting rap lyric evidence. Federal Rule 404, and comparable state rules, allow prosecutors to use bad character/propensity evidence for “another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”^[78] In other words, bad character evidence is admissible not to show that a defendant acted in the present case consistent with her character or propensity for bad acts, but rather to show that the defendant had the ability, know-how, motivation, and/or opportunity to commit the alleged criminal conduct. As shown next, prosecutors make ample use of three exceptions in particular—knowledge, motive, and intent—to successfully admit rap lyrics as evidence in criminal trials.^[79]

1. Knowledge

The knowledge exception to Rule 404 and comparable state rules are a well-traveled avenue for prosecutors seeking to use rap lyrics as evidence.^[80] The knowledge exception allows prosecutors to frame rap lyrics as not reflecting a defendant’s propensity to commit the charged offense (and therefore barred by rule), but rather showing that a defendant has knowledge about committing the charged offense that is exclusive to those involved with such criminal conduct. Through this lens, rap lyrics are used to show that a defendant has specialized criminal knowledge that is indicative of guilt.

One of the early seminal cases of rap lyrics as evidence turned on the knowledge exception to Rule 404.^[81] In United States v. Foster, two Drug Enforcement Agency (“DEA”) agents took notice of Derek Foster as he nervously struggled to pull two suitcases through Chicago’s main train station.^[82] The agents approached Foster and asked if he would answer a few questions.^[83] As Foster agreed, he set the suitcases on the ground causing a puff of white powder to emit from one of the suitcases, which further aroused the agents’ suspicions.^[84] Foster then provided suspicious answers to the agents’ questions, including that he was transporting the suitcases for a third-party who he could not name.^[85] Increasingly suspicious, the agents obtained Foster’s permission to search the suitcases and the duffle bag strapped across Foster’s shoulders (which Foster confirmed was his).^[86] In the suitcases the agents discovered a kilogram of cocaine and ten gallons of liquid phencyclidine (“PCP”).^[87] The duffle bag search yielded a notebook “reflecting weights, money, and names.”^[88] The notebook also contained the following handwritten rap verse:

Key for Key, Pound for pound I’m the biggest Dope Dealer and I serve all over town.
Rock 4 Rock Self 4 Self. Give me a key let me go to work more Dollars than your average business [sic] man.^[89]

Foster was federally convicted at trial of possession with the intent to distribute cocaine and PCP.^[90] During his trial, federal prosecutors argued for admitting the lyrics without limitation because the lyrics were intricately related to the case facts.^[91] The trial court rejected this argument, but endorsed the government’s back-up argument that, pursuant to Rule 404(b), the lyrics were admissible to show Foster’s knowledge about drug trafficking and his intent to engage in drug trafficking.^[92] So the while lyrics were not admissible to establish that Mr. Foster was literally the “biggest dope dealer” who earned “more dollars than the average businessman,” prosecutors were permitted to admit the lyrics for the “limited” purpose of establishing Foster’s knowledge about drug trafficking.^[93] This allowed the government to frame and argue to the jury that Foster’s lyrical use of “Key,” “Dope,” and “Rock” evidenced Foster’s unique knowledge of drug trafficking terms and practices and, therefore, made it more likely that Foster was involved with drug trafficking. The jury convicted Foster, and he was sentenced to 12 years and seven months in prison.^[94]

A central argument of Foster’s appeal was that the trial court erred in admitting his rap lyrics because the prejudice from his lyrics far outweighed their minimal relevance concerning knowledge.^[95] He also argued that his lyrics were not relevant to the central issue of his knowledge of the suitcases’ contents because the lyrics made no reference to the suitcases or the trip that Foster was taking when he was stopped by the DEA agents.^[96]

The Seventh Circuit summarily rejected Foster’s arguments.^[97] First, the appellate court dismissed Foster’s view of relevancy as “unduly restrictive.”^[98] According to the Seventh Circuit, a literal connection between Foster’s lyrics and the facts of the case was not necessary to prove Foster’s knowledge of drug trafficking.^[99] For relevancy, it was sufficient, in the court’s view, that the lyrics established that Foster was “familiar with drug code” and “narcotics trafficking,” which made it “more probable that he knew that he was carrying illegal drugs.”^[100] Then the circuit court quickly swatted away Foster’s prejudice argument by noting that inculpatory evidence is always prejudicial to a defendant.^[101] The key question, the court explained, is whether the lyrics were “unduly prejudicial,” which the appellate court did not find on balance against the relevancy of the lyrics to Foster’s knowledge.^[102]

The Seventh Circuit also took on Foster’s relevancy-related argument that his lyrics were fictional artistic rap lyrics.^[103] The court noted that Foster’s rap lyrics argument was novel and unique for the time.^[104] In rejecting Foster’s novel artistry argument, the Seventh Circuit stressed that the lyrics were not admissible to establish Foster as “the character portrayed in the lyrics” (i.e., “the biggest dope dealer”), but rather to show that Foster had drug trafficking knowledge “that [was] far from fictional.”^[105] To make its point, the circuit court analogized admitting Foster’s lyrics to admitting The Godfather novel against its author Mario Puzo.^[106] The court explained that The Godfather would be admissible not to prove that Puzo was an organized crime family leader, but rather to establish that Puzo had the knowledge of the inner workings of a mafia family.^[107] Similarly, it was Foster’s knowledge of “urban life” and drugs that made his lyrics relevant and admissible in the view of the appellate court.^[108]

Foster is a bedrock and go-to case for prosecutors seeking to use a defendant’s rap artistic expression as evidence.^[109] Foster, and the Rule 404(b) knowledge exception it relies upon, open the propensity backdoor wide-open for the government to claim that a defendant’s rap lyrics about drugs, gangs, violence, or other criminal activity establish a defendant’s inculpatory knowledge about that criminal activity no matter how fictional the story told by a defendant’s lyrics is.^[110] This backdoor allows prosecutors to frame rap lyrics discussing criminal activity as incriminating “knowledge” evidence that makes it more probable that a defendant rap artist committed the charged criminal activity.^[111]

2. Motive/Intent

When a defendant’s rap lyrics relate to the type of crime or conduct charged, but do not contain enough detail to be spun as a confession, 404(b)'s motive motive and intent exceptions offer the government an alternate path to admission. The motive and intent exceptions allow prosecutors to frame rap lyrics as showing that the defendant had the criminal mental state to commit the charged offense, which is halfway (if not more) to proving the defendant’s guilt.^[112]

Such was the case in Cook v. State.^[113] Cook was convicted of felony-murder and sentenced to life imprisonment for killing a restaurant manager during a restaurant robbery.^[114] At trial, the government admitted (over Cook’s objection) a notebook containing a rap song handwritten by Cook. The song, titled “Give up the Strilla” explored the mind of a person who robs others for money using a gun and a machete.^[115] The song contained no references to the facts of the case or any statements that could be viewed as confessional.

On appeal, Cook argued that his rap song was “bad act” evidence that was barred by Arkansas’s version of Rule 404(b).^[116] Rejecting Cook’s argument, the Supreme Court of Arkansas found that the state’s intent exception to the bad acts prohibition reached Cook’s rap lyrics.^[117] The court focused on the song’s lyrics “discuss[ing] using a ‘strap’ (or gun) to force a victim to ‘give up the cash.’”^[118] To the high court of Arkansas, these lyrics were relevant and probative of Cook’s intent to commit armed robbery for money, and therefore were properly admitted at trial pursuant to the intent exception to Arkansas’s Rule 404(b).^[119]

D. Threats

In “true threat” cases, rap lyrics are the criminal conduct, and not just evidence.^[120] The government charges in these cases that a defendant’s rap lyrics are a communicated threat intended to cause the recipient or subject of the lyrics to fear for her safety, which makes the lyrics criminal, punishable, and not protected First Amendment speech.^[121] The government frames the rap lyrics as crossing the line from constitutionally protected speech and art into criminal “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”^[122]

Commonwealth v. Knox is a key example of how courts view the line.^[123] While awaiting trial for drug and firearm charges stemming from a traffic stop in Pittsburgh, Knox and a co-defendant wrote and recorded a rap song titled, “F–k the Police,” and uploaded an accompanying video to YouTube and Facebook.^[124] The song expressed hatred for Pittsburgh police officers and described killing Pittsburgh police officers, including two police officers (identified by name) who were going to testify against Knox and his co-defendant at trial.^[125] The uploaded video featured photographs of Knox and his co-defendant “looking into the camera and motioning as if firing weapons.”^[126] Knox was arrested and charged with making terroristic threats and witness intimidation.^[127] Knox’s rap song “was the sole basis” of the prosecution.^[128] Knox was convicted during a bench trial where the court rejected Knox’s defense that his song was protected First Amendment speech.^[129]

The Pennsylvania Supreme Court affirmed Knox’s conviction, as well as the trial court’s determination that the song was not constitutionally protected speech.^[130] The court acknowledged and accepted the rap artistry points raised by Knox and his amici supporters that rap music, especially “gangsta rap,” “often contains violent imagery that is not necessarily meant to represent an intention on the singer’s part to carry through with the actions described,” and that rap artists frequently adopt stage personas that are fictitious and far different from their true selves.^[131] To the Pennsylvania high court, Knox’s rap song was of “a different nature and quality” that leaned heavily toward being an actual and intended threat, and not a gangsta rap work of “art, poetry, and fantasy.”^[132] For the court, identifying by name the two officers who were set to testify against Knox and “the clear expression repeated in various ways” that the officers were targeted due to their prior interactions with Knox, “[stood] in conflict with the contention that the song was meant to be understood as fiction.”^[133]

III. OFFICERS AS GOVERNMENT RAP “EXPERTS”

Experts are the frequent conduit prosecutors use to admit rap lyrics as evidence at trial and to translate and interpret rap lyrics for a jury.^[134] Regularly, the government’s rap expert is a law enforcement officer with experience investigating gangs, drug trafficking, and/or violent crimes.^[135] The officer is commonly a member of the investigation team, and therefore serves a dual role as both a fact witness and an expert witness.^[136]

These government “experts” play a key role in a defendant’s rap lyrics achieving the evidentiary goals discussed earlier: confession, knowledge, association, intent, motive, and threats. In confession cases, the role of the law enforcement officer turned rap expert is straight-forward: interpret the defendant’s lyrics in a manner that leads the jury to conclude that the lyrics are a literal confession to the charged crime. This is exactly what happened in State v. Guffie, where a police sergeant testified about the defendant’s rap lyrics the sergeant found in the defendant’s phone two-hours after the charged shooting.^[137] On the stand, the sergeant did not provide an objective translation of the lyrics for the jury. Instead, he translated the lyrics while simultaneously linking the lyrics to specific facts of the shooting and murder at issue in the case and to statements the defendant made during a custodial interrogation by the sergeant.^[138]

To establish knowledge, the law enforcement officer not only translates the lyrics, but goes a step further to explain to the jury how the language is standard “code” or parlance used by those involved with the particular criminal activity at issue (such as drug trafficking) or by a particular group of criminals (such as gangs).^[139] The goal is for the jury to believe that the defendant’s use of particular language in his rap lyrics proves the defendant’s guilt. This goal was reached in the seminal Foster case where, as discussed earlier, the government agent translated and explained for the jury that Foster’s lyrics, specifically “Key,” “Dope,” and “Rock,” were standard drug “code” used by narcotics traffickers.^[140] Law enforcement officers use similar translation tactics and methods to lead juries (and judges) to conclude that a defendant’s rap lyrics reflect the defendant’s motivation or intent to commit the charged crime. This occurred in Mendoza v. Cates, where the government’s gang expert testified that the defendant’s rap song reflected the defendant’s motivation to kill the victim.^[141] Establishing a defendant’s association with a gang is the easiest road for prosecutors to use a law enforcement officer to admit rap lyrics as evidence. As long as the law enforcement officer can claim to link lyrics or images from a rap song or video to a particular gang or gang culture, courts are apt to allow the officer to opine to the jury that the rap song or video establishes the defendant’s association with a gang.^[142]

A. EXPERTS IN CRIMINAL CASES: BACKGROUND & RULES

Exploring how courts are failing as expert gatekeepers in rap on trial cases must start with establishing the role of experts in criminal trials, the court’s role as the gatekeeper of experts, and the key rules setting how courts gatekeep experts and expert testimony.

Experts serve a vital role in criminal trials.^[143] Indeed, “a battle between experts is a frequent occurrence in criminal cases” because criminal trials regularly involve evidence and issues that are beyond the understanding and experience of most people.^[144] Expert testimony often concerns evidence and issues that are key to the ultimate question of whether the defendant is guilty of the charged offense.^[145] Experts serve as the bridge between complex evidence and issues and the jury’s understanding of both. Experts engage in this bridge building by: explaining in layman’s terms the science and methodologies behind complex evidence; explaining how particular evidence was collected, tested, and analyzed; explaining the analysis and conclusions tied to the testing of evidence (especially forensic evidence); translating complex evidence, issues, and methodologies into layman’s terms; and explaining how complex industries, practices, and organizations (criminal and legal) operate.

It is widely accepted that scientific forensic evidence, such as DNA, fingerprints, ballistics, and cellphone evidence, require experts to explain to juries the complex science and technology behind such evidence.^[146] But the use of experts in criminal trials goes far beyond forensic evidence. Prosecutors regularly employ experts to educate juries about non-scientific evidence and subjects, such as illegal drug operations and conspiracies, gangs, tax practices, financial and accounting practices, computer and internet crimes, mental health issues, medical practices, linguistics, eyewitness identification, and many more subjects.^[147] Defense attorneys do the same in defense of their clients.^[148]

Experts have significant influence power, especially in criminal cases.^[149] Expert testimony can overshadow and devalue other evidence presented at trial.^[150] This danger is particularly acute when government experts testify because juries tend to be unduly influenced by the “stamp of approval” a government expert puts on the government’s case theory.^[151] This danger is greatly increased when the government expert is also a law enforcement officer who was involved with the investigation of the case.^[152] A court’s decision to admit or deny expert testimony, therefore, has significant consequences for a defendant’s freedom, liberty, and life.^[153]

Due to an expert’s substantial role and influence, strict federal and state rules of evidence and procedure govern expert testimony. The rules regulate what subjects are appropriate for expert testimony, who is qualified to serve as expert, the procedures for declaring and qualifying an expert, and an expert’s testimony at trial.^[154] First and foremost, the rules establish that the court is the gatekeeper of experts and expert testimony.^[155] Indeed, the importance of the court’s expert gatekeeping role “cannot be overstated” because an expert’s testimony “can be both powerful and quite misleading.”^[156]

At the federal level, the “primary locus of this [gatekeeping] obligation is [Federal Rule of Evidence] 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify.”^[157] The current Federal Rule of Evidence 702 (hereinafter “Rule 702”) codifies Daubert v. Merrell Dow Pharmaceuticals, Inc., where the Supreme Court replaced the “generally accepted” standard for admitting scientific expert testimony in favor of the Federal Rules of Evidence, specifically Rule 702.^[158] State evidence rules consistently have a rule that replicates or mirrors Rule 702.^[159]

Rule 702 sets five requirements for the admissibility of expert testimony: (1) relevance, i.e., the expert’s opinion will help the trier of fact understand the evidence or determine a fact at issue; (2) the expert is qualified to render the proffered opinion; (3) the expert’s opinion is based on sufficient facts or data; (4) the expert’s opinion is the product of reliable methodology; and (5) the expert’s opinion is a reliable application of the methodology to the facts of the case.^[160] Courts and legal scholars divide these requirements into three categories: relevancy, qualifications, and reliability.^[161]

1. Relevance

A court’s expert gatekeeping obligation starts with determining whether the expert’s opinion is relevant to the case.^[162] Relevant expert testimony is admissible, while irrelevant expert testimony is not.^[163] Rule 702 sets the relevancy bar by requiring that an expert’s opinion and testimony assist “the trier of fact to understand the evidence or to determine a fact in issue.”^[164] This requirement is based on the easy-to-understand notion that irrelevant expert testimony is not helpful to a trier of fact and can endanger a fair trial due to its vaulted regard by a jury.^[165] “Simply put, expert testimony may be assigned talismanic significance in the eyes of lay jurors, and, therefore, [courts] must take care to weigh the value of such evidence against its potential to mislead or confuse.”^[166]

2. Qualifications

The first words of Rule 702 require a court to ensure that an expert is qualified to render the proffered expert opinion: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education . . . .”^[167] This language makes plain the bases upon which an expert can clear the qualification bar: “knowledge, skill, experience, training, or education.”^[168] The “or” preceding “education” means that an expert can be deem qualified based on just one or a combination of the enumerated bases.^[169] Indeed, experience alone can sufficiently qualify an offered expert.^[170] However, this “does not mean that experience, standing alone, is a sufficient foundation rendering any conceivable opinion the expert may express.”^[171] As discussed later, this caveat is particularly important for law enforcement officers providing “expert” rap lyric opinions at trial.

In addition to the general qualification requirement (i.e., knowledge, skill, experience, training, or education), Rule 702’s qualifications bar imposes two other prerequisites for admissibility. First, an expert’s qualifications must relate to the specific matters on which the expert will opine.^[172] Second, “[t]o qualify as an expert, a witness must have ‘specialized knowledge’ regarding the area of testimony” that is greater than the average person.^[173]

3. Reliability (Methodology)

“Critically, reliability is an entirely separate question” from an expert’s qualifications.^[174] For judges, this means that “[t]o carry out its gatekeeping role, a district court must find that an expert’s testimony is reliable” separate and apart from determining if the expert is qualified to render the proffered opinion.^[175] The purpose of Rule 702’s reliability requirement “is to make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”^[176] Important for rap expert testimony of focus here, the reliability requirement applies to non-scientific expert testimony as well as scientific expert testimony.^[177]

Rule 702 has two reliability-related prongs. Rule 702(c) requires a court to ensure that the expert’s “testimony is the product of reliable principles.”^[178] Directly following is Rule 702(d), which requires that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”^[179] Reliability, therefore, is a two-part methodology inquiry: (1) did the expert rely on a sound methodology to reach her opinion; and (2) did the expert properly employ the methodology to reach her opinion?^[180] Together, the reliability prongs require a court to focus “not on ‘what the experts say,’ or their qualifications, ‘but the basis they have for saying it.’”^[181]

In the seminal Daubert case, the Supreme Court identified multiple factors for weighing reliability, including whether the expert’s methodology has been: (a) tested; (b) subjected to peer review; and (c) accepted in the scientific, technical, or specialized community.^[182] In a subsequent case, the Supreme Court clarified that Daubert’s list of reliability factors is a helpful guide, but not definitive or exhaustive.^[183] As the Supreme Court has recognized, there are too many types of expertise for the Daubert list of reliability factors to sufficiently cover and provide guidance for measuring and determining reliability.^[184]

Given the wide variety of expertise, courts “have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”^[185] With this wide latitude, a court may focus primarily on an expert’s personal knowledge or experience to satisfy reliability.^[186] However, this “does not mean that experience, standing alone, is a sufficient foundation rendering any conceivable opinion the expert may express.”^[187] Indeed, to fulfill its reliability gatekeeping duty, a court must measure whether the expert’s conclusions are supported by the expert’s experience or knowledge; whether the expert’s reasoning is circular, speculative, or otherwise flawed; and whether the expert has adequately explained her reasoning.^[188] In short, experience alone may satisfy Rule 702’s qualification requirement, but it cannot simultaneously, without more, satisfy the rule’s reliability requirement.^[189] As discussed in the next section, this caveat is particularly important when prosecutors offer law enforcement offers as rap lyric experts.

B. COURTS ARE FAILING TO GATEKEEP OFFICERS AS RAP EXPERTS

Rule 702 and its state equivalents firmly establish the admissibility requirements that trial courts must apply as the gatekeepers of expert testimony.^[190] Yet, as discussed in this section, courts regularly fail to apply the qualification and methodology requirements fully and faithfully to law enforcement officers serving as prosecution rap lyric experts.

1. Qualification

Courts regularly fall short of their obligation to vet the qualifications of law enforcement officers to provide rap-related expert testimony. Too often courts fail to sufficiently examine whether the law enforcement officer is rap qualified, that is, whether by knowledge, skill, experience, training, or education the law enforcement officer has expert-level knowledge of rap as a musical art form, a music genre, or music industry subset.^[191] Instead, courts frequently find that the qualification threshold is satisfied by the law enforcement officer’s knowledge, training, and experience as a drug, gang, or street-crime investigator.^[192] In these situations, courts consistently see drug, gang, and street crime officers as rap experts equivalent to non-law enforcement people immersed in rap culture, such as rap and hip-hop scholars, rap artists, and others associated with rap music and the rap music industry (e.g., rap music producers, record label executives, and music journalists).

When confronted with rap lyric evidence, many judges view rap, drugs, and gangs as equivalent and interchangeable fields of expertise.^[193] It is a false equivalency. It is true that many rap songs reference and concern criminal activity, particularly drug and violent activity. However, this does not mean that a law enforcement officer’s experience investigating such activity renders that officer qualified to interpret or explain rap lyrics to a jury.^[194] Rap is a musical art form that blends poetry and spoken words, iteration techniques, metaphor and symbolism, exaggeration and boasting, and other ingredients in formulas and arrangements that are unique to rap.^[195] Just because the language of crime appears in rap music does not mean that a law enforcement investigator is automatically qualified to render expert rap lyric translations and opinions.^[196] This is because how such language is used in rap—as illustration, storytelling, metaphorically, persona boasting, and social commentary—requires a level of expertise that is not gained through law enforcement experience, and therefore is beyond the capacity of most law enforcement officers.^[197]

In some instances, courts fail to conduct any qualification analysis and assume the false equivalency that a law enforcement officer’s experience qualifies the officer to provide rap lyric expert testimony. This is what happened in the seminal United States v. Foster discussed earlier.^[198] At Foster’s trial, a government agent translated “Key,” “Dope,” and “Rock” from Foster’s lyrics as standard “drug code” used by narcotics traffickers.^[199] The Seventh Circuit did not even address whether the government agent was qualified to translate the lyrics for the jury.^[200] Both the trial and appellate court seemingly assumed and accepted that the agent was qualified to translate and opine on Foster’s rap lyrics by virtue of his knowledge, training, and experience as a drug trafficking law enforcement agent.^[201]

Foster is not an isolated case.^[202] In Brown v. State, a detective testified at trial as a government expert in “the area of narcotic distribution and trafficking.”^[203] The detective was called to the stand primarily to provide his expert opinion that Brown possessed a bag of marijuana for distribution (as charged by the government), and not personal use.^[204] As proof for his opinion, the detective testified about how the marijuana was individually packaged and that Brown was on his way to a “high drug area”—testimony well within the bounds of his law enforcement expertise.^[205] But the detective stepped outside those bounds when he testified extensively about handwritten rap lyrics found on Brown when he was arrested.^[206] The detective translated terms in the lyrics, such as “snitches,” “molly,” and “trap” house, and opined how the terms related to drug trafficking.^[207] The detective’s rap-related testimony went beyond translating the lyrics to include linking Brown’s lyrics to the motivations of drug traffickers generally to take certain actions, such as not cooperating with police, “cut[ting]” or mixing narcotics with other substances to maximize profit, and dealing drugs to make quick money.^[208] From the appellate court’s opinion, whether the detective was qualified as a rap expert to translate and interpret Brown’s lyrics at trial was never an issue or in doubt.^[209] Apparently the court just assumed that the detective’s experience as a drug enforcement officer rendered him a rap lyrics expert.^[210]

The same lack of qualification vetting happened in Commonwealth v. Lee.^[211] In Lee’s gang-related murder trial, the government admitted rap videos featuring Lee and rap lyrics written and performed by Lee.^[212] A police lieutenant testified for the government as an expert on “gang structure and organization, drug trafficking, and jargon.”^[213] While testifying the lieutenant “discussed the significance of rap videos” and “decoded for the jury portions” of Lee’s rap videos and rap lyrics.^[214] The lieutenant’s “decoding” of the videos and lyrics was extensive.^[215] He “decoded” at least thirty-five lines of lyrics from two rap videos and at least thirteen words specifically from within those lyrics.^[216] The lieutenant’s testimony often went past “decoding” the lyrics to opining about Lee’s motivations for the lyrics, i.e., that Lee had a particular mental state and purpose in writing and performing the lyrics.^[217] The lieutenant’s “decoding” and motivation testimony was so extensive and impactful that both the trial and appellate court noted that “Lieutenant Echevarria’s expert testimony was crucial” to the case.^[218] Despite this impact, the appellate court failed to explore whether the lieutenant was qualified to provide expert testimony about rap lyrics or rap videos.^[219] Similarly to Brown v. State, in Lee, both the trial and appellate courts assumed that the lieutenant’s “gang structure” and “drug trafficking” expertise simultaneously qualified him to provide expert testimony “decoding” and opining about Lee’s rap lyrics.^[220]

Even when courts address whether a law enforcement officer is qualified to opine as a rap lyrics expert, they too readily accept the false equivalency that law enforcement experience qualifies a law enforcement officer to opine as a rap lyrics expert.^[221] The trial and appellate court openly endorsed the false equivalency in State v. Roberts, a felony-murder case where the case detective interpreted the defendant’s rap lyrics for the jury.^[222] The defense specifically objected to the rap lyrics testimony because the detective had not been qualified as a rap expert under the rules.^[223] The trial court rejected the objection (affirmed on appeal), holding that the detective’s “experience investigating drug crimes” rendered him qualified to interpret the defendant’s lyrics.^[224]

In a small number of cases, such as Commonwealth v. Gray, courts have rejected the false equivalency.^[225] In Gray, the government had a detective testify as a gang expert and provide expert testimony about a rap video featuring Gray.^[226] Before doing so, the government failed to provide any showing that the detective was an expert on rap music or rap music videos.^[227] To the Supreme Court of Massachusetts, this lack of showing was inexcusable because a “police officer who has been qualified as a ‘gang expert’ cannot, without more, be deemed an expert qualified to interpret the meaning of rap music lyrics.”^[228] To the state high court, the detective’s lack of demonstrated rap expertise combined with the “minimal probative value of the [rap] video” produced a prejudicial effect that was so “overwhelming” that reversal of the Gray’s conviction was warranted.^[229] Gray needs to be the standard rather than the exception.

2. Reliability (Methodology)

Vetting reliability is the second regular failure by courts when qualifying law enforcement officers offering rap-related expert testimony. Judges are not consistently weighing, testing, or confirming that these purported rap experts: (1) have a sufficient basis to offer their opinions; and (2) used a reliable methodology to reach their opinions. Instead, like the qualification requirement, courts too often find that a law enforcement officer clears the reliability hurdle to offer expert rap opinions solely due to the officer’s experience.^[230] This judicial failure violates both the letter and spirit of Rule 702 and its state equivalents.

It is well-settled that experience alone can satisfy the reliability requirement of Rule 702 (and its state equivalents).^[231] However, such satisfaction is not automatic. When a law enforcement officer “is relying solely or primarily on experience, then the [law enforcement officer] must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.”^[232] This means, to quote most math teachers at quiz time, law enforcement officers offering rap expert testimony must “show their work” and not just offer conclusions.

Too often courts give in to the temptation to lower (or even ignore) Rule 702’s reliability standard because rap lyric interpretation is non-scientific and does not involve or require scientific testing or analyzing methods or equipment. This temptation is contrary to language and intent of the rule. When it comes to gatekeeping reliability, it is of no consequence that rap lyric expert testimony is non-scientific. As Rule 702’s notes advise, “An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist.”^[233] There is no reliability short-cut or end-around for non-scientific rap expert testimony, even when offered by a highly experienced law enforcement officer. As Rule 702’s notes warn, “The trial court’s gatekeeping function requires more than simply ‘taking the expert’s word for it.’”^[234]

As the Supreme Court has stressed, while “trial court[s] must have [wide] latitude in deciding how to test an expert’s reliability,” trial courts must actually test whether a law enforcement officer’s experience (or other claimed methodology) is a reliable method for interpreting and opining about a defendant’s rap lyrics.^[235] Experience-based methodology cannot escape this scrutiny.^[236] The Supreme Court made this explicitly clear in Kumho Tire, when the Court stated that a trial court’s methodology gatekeeping responsibility “is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”^[237] “In the relevant field” of Kumho Tire is notable because when rap lyrics are the issue, the “relevant field” is rap music, and not law enforcement.^[238] This distinction is highly important. As a California appellate court noted, because rap lyrics can describe real, made-up, or inflated events, “[a]bsent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal.”^[239]

The bottom line is that qualification and reliability are separate and distinct requirements that necessitate separate and distinct analyses when rap lyrics are at issue.^[240] Reliability obligates a court to find that a law enforcement officer’s testimony about a defendant’s rap lyrics “is the product of reliable principles and methods” and “reflects a reliable application of the principles and methods to the facts of the case.”^[241] “‘[V]ague and generalized explanations’ are not sufficient; rather, the officer must explain how he applies his ‘knowledge to interpret particular words and phrases used in a defendant’s rap lyrics.’”^[242] Yet, when rap lyrics are concerned, courts regularly skip conducting a separate and thorough methodology vetting in favor of finding a law enforcement officer qualified and reliable solely based on the officer’s law enforcement experience.^[243]

It happened recently in State v. Roberts, a felony-murder trial where, over the defense’s objection, the case lead detective testified as an expert about the meaning of rap lyrics written and performed by Roberts in a rap video.^[244] To establish his expert qualifications and reliability, the detective testified about his years investigating crimes and interviewing people involved with street crimes.^[245] When the detective moved to interpreting Roberts’s rap lyrics, Roberts’s attorney pressed a reliability objection and argued that the detective’s experience “interacting with street people” did not provide a sufficient basis for his rap interpretation testimony.^[246] The trial court rejected the reliability challenge finding that the prosecution had presented “enough” to establish the detective’s expertise and reliability to interpret Roberts’s rap lyrics.^[247] The appellate court affirmed the trial court’s decision.^[248] To the appellate court, the detective had “established a sufficient foundation in order to offer testimony about his understanding of the meaning of [certain words in Roberts’ rap lyrics] based on multiple years of experience in narcotics and gang units.”^[249]

Roberts exemplifies the failure of courts to faithfully apply and uphold their reliability gatekeeping function. It also reflects the continuing erasure of the line between qualification and reliability when rap lyrics are at issue. Both the Roberts trial and appellate courts failed to engage in a reliability analysis separate from the qualification determination. Moreover, both assumed that the detective’s qualifications, i.e., his years of experience as a detective interviewing people involved with street crime, simultaneously and automatically rendered his rap translation expertise reliable.^[250] There was no examination of whether the detective’s street crime interviewing techniques and methods were a reliable method for interpreting Roberts’s rap lyrics.^[251] In fact, there was little to no examination of the methodology the detective used to interpret Roberts’s rap lyrics.^[252] And there was certainly no examination of how the detective applied his street crime interviewing methodology to reliably interpret Roberts’s rap lyrics.^[253]

A similar methodology gatekeeping failure occurred in Mendoza v. Cates.^[254] Mendoza was convicted of first-degree murder for a gang-related killing.^[255] At trial, one of the government’s gang experts testified about a rap song recorded by Mendoza, including that the song’s “shout outs” referred to a fellow jailed gang member and expressed Mendoza’s intent, motive, and plan to kill the victim in the case because he had cooperated with law enforcement against the referenced jailed gang member.^[256]

In his habeas action challenging his conviction, Mendoza argued that the trial court erred in allowing the detective to offer expert testimony about his rap song.^[257] Notably, the court rejected Mendoza’s claim that the detective’s testimony was unnecessary and improper expert testimony because the lyrics were sufficiently clear to a layperson and did not need translation.^[258] According to the court, the song’s references to people’s street names and unspecific references to particular people, “were sufficiently beyond the jury’s common experience as to be incomprehensible without” the detective’s testimony.^[259] Yet, the court failed to conduct any analysis into whether the detective used a reliable method to interpret the lyrics that the court found were “beyond” the jury’s understanding.^[260] Although not specifically discussed, it appears that the court assumed that the detective’s methodology for interpreting Mendoza’s rap song was reliable because of “his extensive experience investigating criminal street gangs.”^[261] Mendoza exemplifies when a court does not even take the step of stating that a law enforcement officer’s experience renders the officer’s rap lyric interpretation reliable, and instead just assumes it.

A notable outlier to the trend of courts failing to gatekeep reliability is United States v. Williams.^[262] In this racketeering conspiracy case, the defense moved to prohibit the government’s gang expert (a detective) from interpreting rap lyrics performed in videos produced by the defendants.^[263] The defense challenged the detective’s expertise on qualification and reliability grounds.^[264] During a hearing on the defense’s motion, the detective testified about her gang-related training and experience to establish her expert qualifications.^[265] On cross examination, the detective admitted that she never previously testified as a gang expert, and that she had “no training or experience in interpreting rap lyrics . . . never been qualified as an expert to interpret rap lyrics,” and “never interpreted rap lyrics in a trial.”^[266] She even admitted that she was “not an expert in rap music and dislikes some rap music.”^[267] When asked about her methods for interpreting the rap lyrics at issue in the case, the detective responded that she did not know who wrote the lyrics and never spoke to anyone (including the alleged authors of the lyrics) about the meaning of the lyrics.^[268] Instead, as the detective testified, her interpretation method was deriving the meaning of the lyrics from the context of the videos.^[269] When pressed further, the detective admitted that if given the lyrics alone without the rap videos, she would not be able to determine the meaning of the lyrics.^[270]

The federal magistrate judge handling the pretrial matter determined that the detective was qualified to opine as a gang expert.^[271] However, the judge noted that, “reliability is an entirely separate question,” and the judge had many “concerns” about the reliability of the detective’s rap lyrics methodology.^[272] The judge was particularly concerned that the detective lacked any training or experience interpreting rap lyrics.^[273] To the judge, this qualification gap rendered the detective’s rap opinion presumptively unreliable.^[274] Moreover, the judge noted that the detective’s rap lyrics translation was based on the detective’s speculation about content in the videos featuring the lyrics and unrelated Facebook conversations.^[275] This speculation, the judge concluded, did not satisfy Rule 702’s reliability requirement.^[276] The federal judge handling the case adopted the magistrate judge’s recommendation that “any [expert] testimony [by the detective] based on the rap lyrics and videos is inadmissible.”^[277]

Another notable reliability outlier is United States v. Herron.^[278] The case involved a defendant rap artist charged with racketeering, drug, and gun offenses.^[279] Over the defense’s objection, the court allowed the government to introduce rap videos at trial where Herron was the featured artist or just in the background.^[280] In response, the defense provided notice that a professor of English and African studies would serve as a defense expert to opine at trial that “based on the traditions, patterns, roots, and antecedents of hip-hop music, including gangsta rap, that song lyrics and expressions by artists in this medium which are designed to create or develop their image, and/or promote their work, may not be taken as expressions of truth by virtue of being stated or sung by the artist.”^[281] The government moved to exclude the defense’s expert, arguing, in part, that the expert’s opinions “cannot be the product of reliable principles or methods.”^[282] The court rejected the government’s reliability challenge because the defense’s expert was not (as the government contended) opining that rap lyrics are never expressions of truth and true events, but rather that rap lyrics are not necessarily statements of truth.^[283] This important “nuanced” difference doomed the government’s reliability attack given the expert’s extensive work in and study of hip-hop culture.^[284]

The contrast between how the courts in Roberts and Williams approached and handled expert reliability is plain and stark. Roberts represents the dominant trend of courts ignoring the individual demands of Rule 702 (and its state equivalents) by assuming that law enforcement experience qualifies a law enforcement officer to render reliable expert opinions about rap lyrics. Williams, conversely, shows how a court should faithfully approach qualification and reliability as separate issues, how reliability demands more beyond just citing an officer’s credentials, and how a law enforcement officer may fail to clear the reliability hurdle when a court faithfully gatekeeps reliability separate from qualification.

In sum, courts are too readily abandoning their gatekeeping obligations when law enforcement officers are offering expert opinions and testimony about rap lyrics. Instead of engaging in a process to ensure that the officers are qualified to opine on rap lyrics and that they used a sound methodology to reach their opinions, courts are too frequently relying on an officer’s law enforcement experience as a process shortcut. This end run around the words and spirit of the rules regulating the admission of expert testimony is unacceptable and further diminishes the public’s faith in the criminal prosecution system, especially by the public that appreciates (and understands) rap and hip-hop culture. As Professors Andrea Dennis and Erik Nielson discuss in their seminal book, Rap on Trial, this shortcutting has led to inaccurate, incorrect, and misleading interpretations about defendants’ rap lyrics.^[285] The professors’ book documents cases where the opinion provided by the government’s rap “experts” were not just wrong and misleading, but also absurd, such as times when the government’s experts attributed the authorship of the lyrics to the defendant when a simple google search would reveal that the lyrics were copied from songs written and performed by other established rap artists.^[286]

IV. PRESCRIPTIONS

What can defense attorneys do to push courts to faithfully gatekeep the law enforcement officers who prosecutors present as rap experts? Three prescriptions are advocated here: (1) challenge the government’s expert disclosure identifying the law enforcement officer as a rap lyrics expert; (2) challenge the qualifications and methodology of the law enforcement officer to testify as a rap lyrics expert; and (3) retain a qualified and reliable rap lyrics expert to counter the law enforcement officer and demonstrate the stark qualification and reliability gap between the defense expert and the government’s law enforcement officer.

A. Challenge and Litigate the Government’s Expert Disclosure Notice

When federal prosecutors plan for an expert to testify at trial, Federal Rule of Criminal Procedure 16(a)(1)(G) obligates them to provide the defense with a written expert disclosure.^[287] The disclosure must contain: (a) “a complete statement of all opinions that the government will elicit from the [expert] witness in its case-in-chief;” (b) the “bases and reasons” for the expert’s opinions (i.e., methodology); (c) the expert’s qualifications; and (d) a list of cases in which the witness testified as an expert in the past four years.^[288] The defense has the same obligation for experts it intends to call in its case-in-chief.^[289] When either party fails to comply with the expert disclosure rule, the court has the option of excluding the proffered expert from testifying at trial.^[290] State disclosure rules consistently mirror the federal rule.^[291]

Government expert disclosures giving notice that a law enforcement officer will testify about a defendant’s rap lyrics regularly cite the officer’s law enforcement training and experience to satisfy the disclosure rule’s qualifications and methodology requirements. Defense attorneys need to challenge the disclosures as failing to meet both requirements.^[292] Another common government disclosure tactic is to provide a list of topics about which the law enforcement officer will provide expert testimony and include interpreting rap lyrics on the list. This too needs to be challenged as failing to satisfy the disclosure rule’s summary of opinions requirement.^[293] Rule 16 (and its state equivalents), “requires the government to provide a ‘written summary’ of the expert testimony it intends to introduce, and the government cannot satisfy this obligation by merely providing a ‘list of topics.’”^[294]

Challenging the government’s expert disclosure is a two-step process. The first step is sending the government a written response objecting to the disclosure for failing to satisfy the disclosure rule’s qualifications, methodology, and/or summary of opinions requirements, and demanding a supplemental disclosure. When the government fails to provide a satisfactory supplemental disclosure, the defense attorney’s second step is filing a motion to exclude the officer from testifying about the rap lyrics at issue due to the deficient expert notice, or alternatively, an order compelling the government to provide a supplemental disclosure that satisfies the expert disclosure rule.^[295]

Exclusion of the law enforcement officer in response to the motion is unlikely. Courts consider excluding expert testimony (especially government expert testimony) due to a deficient expert notice as an extreme remedy that is rarely applied.^[296] However, this should not stop defense attorneys from litigating the sufficiency of the government’s notice disclosing a law enforcement officer as a rap lyrics expert. Proceeding despite the low chances of exclusion will yield tactical benefits. A motion challenging the government’s disclosure forces the government to further explain why its proffered law enforcement officer is qualified to render an expert opinion about rap lyrics and why the officer’s methodology for interpreting rap lyrics is reliable.^[297] The government’s explanations will expose additional weaknesses and gaps in the officer’s qualifications, rap-related experience, and methodology that the defense can exploit in a future motion to exclude the officer (discussed next), or use to undermine and devalue the officer’s testimony at trial.

The same benefits come from forcing the government to provide a sufficient summary of the officer’s rap lyrics opinion. Pushing for a complete summary has the added benefit of “locking in” the boundaries of the law enforcement officer’s rap-related trial testimony. Locking-in the boundaries provides an important bulwark against opinion “creep” (the officer wandering at trial into undisclosed areas of testimony). It also provides the defense attorney with a clear roadmap for planning the officer’s cross-examination and finding rebuttal experts (discussed later).

Lastly, teeing-up for the court the problems of a law enforcement officer providing expert rap testimony is another benefit of litigating the government’s expert disclosure. It also sets a helpful foundation for a future motion to exclude the officer’s rap-related testimony (discussed next).

B. Moving to Prohibit the Officer/Agent from Offering Rap Expert Testimony

After challenging and litigating the government’s expert disclosure notice, the defense attorney’s next step is to move to exclude the law enforcement officer from offering rap lyrics testimony at trial. A two-prong attack for the motion is recommended.

The first prong is arguing that the officer’s law enforcement training and experience does not render the officer qualified to opine on rap lyrics.^[298] The point to press is that while law enforcement training and experience may qualify the officer to testify about gangs, specific criminal activity, police investigations and procedures, and other policing-affiliated topics, the officer, “cannot, without more, be deemed an expert qualified to interpret the meaning of rap music lyrics.”^[299] The motion should highlight the law enforcement officer’s lack of: (a) rap-related education and training; (b) experience studying rap as an art form; (c) experience with the music industry generally, and with the rap genre specifically, (d) experience translating or interpreting rap lyrics outside of the immediate case; (e) experience as a court-approved rap expert; and (f) contact and experience with rap artists and rap performances. The goal is to force the court to confront and acknowledge that law enforcement and rap are separate “fields” requiring distinct expertise, and that law enforcement expertise is not an adequate substitute for rap expertise.^[300]

The second prong is the methodology attack, i.e., that the law enforcement officer used an unreliable methodology and/or unreliably applied a methodology to interpret the client’s rap lyrics.^[301] The motion should forcefully argue that the officer’s law enforcement experience alone, including her experience investigating the instant case, is not a reliable and sufficient methodology for interpreting rap lyrics.^[302] Key to this attack is using the government’s expert disclosure’s “[v]ague and generalized” methodology explanations and failure to sufficiently explain how the officer applied her methodology to interpret the client’s rap lyrics to expose the lack of a reliable methodology for the court.^[303] The goal is to show that a methodological gap exists between law enforcement investigation techniques and rap lyric interpretation.^[304] That is, while an officer’s law enforcement methods may be effective in investigating gangs, drug offenses, and street crime, it does not mean that those same methods yield reliable opinions about rap lyrics.^[305] Framing reliability in this way allows the defense to cast a law enforcement officer’s rap opinion as the product of a purely subjective methodology that is too unreliable to be allowed at trial.^[306]

C. Retain a Defense Rap Expert

It is within the discretion of the defense attorney whether to present a defense expert at trial, including an expert to counter the government’s expert(s).^[307] At times, defense attorneys choose to forgo retaining and presenting defense experts for strategic reasons, such as the inability to find a suitable expert, or to avoid a “battle of the experts” at trial that can leave a jury confused and distracted from the core defense theory and key evidence undermining the government’s case.^[308] A case where prosecutors present a law enforcement officer as an expert to explain and translate a client’s rap artistic expression is not one of those times. Leaving the government’s expert rap testimony unrebutted allows prosecutors to control the framing, interpretation, context, and narrative of a client’s rap lyrics, which is huge strategic trial advantage.^[309] Through cross-examination, a defense attorney can undermine or raise doubts about the government expert’s ability to translate the client’s lyrics and the accuracy of the expert’s translation.^[310] But cross-examination offers little opportunity for the defense to interject and place before the jury alternative framing, context, and translations of the lyrics backed by expert credentials. In the absence of a defense expert, the only direct way to put a counter-narrative about a client’s rap lyrics before a jury is to have the client testify, which comes with a host of significant dangers, problems, and risks that defense attorneys often want to avoid.

Simply put, avoiding the “battle of the experts” is not good strategy when confronted with a client’s rap lyrics as evidence. This is particularly true when the government’s expert is a law enforcement officer because of the real risk that the jury “might be smitten by an [officer’s] ‘aura special reliability.’”^[311] As observed by Professor Andrea Dennis, a key founder of the “rap on trial” movement, “[t]he ideal means by which to challenge the admissibility and credibility of lyrical evidence offered by the prosecution is testimony by experts on rap music lyrics.”^[312] This advice is seconded by rap on trial scholars Professors Charis Kubrin and Erik Nielson, who further advise that defense experts are critical to ensuring “that juries understand rap music in its proper context” and explaining to judges and juries “the artistic traditions and constraints that inform the composition of rap lyrics.”^[313]

Of course, having the court accept the defense’s rap expert is a decisive hurdle. But when done correctly, i.e., meeting the disclosure requirements of Rule 702 (or its state equivalent), the court should not be an obstacle.^[314] The key is to avoid the pitfalls discussed earlier by ensuring that the defense’s expert disclosure provides sufficient notice of the rap expert’s qualifications, summary of opinions, and methodology. Failing to provide sufficient notice as to one or more of these requirements gives the court justification for barring the defense expert from testifying.^[315] This is exactly what happened in United States v. Wilson, where the trial court barred the defense’s rap expert because, in addition to being untimely, the defense’s expert disclosure failed to adequately explain the “bases and reasons” for the expert’s opinions.^[316]

When disclosed in accordance with the applicable rules, a defense rap expert has a good chance of making it to the stand at trial. In addition to proving the point, United States v. Herron, discussed earlier, is a helpful guide for defense attorneys seeking to have a testifying rap expert accepted by a court.^[317] In Herron, the government gave notice of its intention to introduce the defendant’s rap videos as trial evidence. In response, the defense provided an expert notice disclosing that a professor of English and Africana studies would opinion at trial that, “based on the traditions, patterns, roots, and antecedents of hip-hop music, including gangsta rap, that song lyrics and expressions by artists in this medium which are designed to create or develop their image, and/or promote their work, may not be taken as expressions of truth by virtue of being stated or sung by the artist.”^[318] There was no question that the professor was qualified to render the opinion.^[319] Instead, the government sought to exclude the professor on the grounds that his opinion was unhelpful to the jury and not the product of reliable methods.^[320] The government lost on both grounds, and the court denied the government’s motion to exclude the professor from testifying at trial as an expert.^[321]

Herron is instructive for another pitfall for defense attorneys to avoid in regard to defense rap experts: avoid having the expert cross from providing context and background about rap and hip-hop into opining about the truthfulness of the client’s rap lyrics at issue in the case.^[322] While the Herron court allowed the defense expert to testify, the court limited and “cabin[ed]” the professor’s testimony “to the history, culture, artistic conventions, and commercial practices of hip-hop or rap music, focusing on gangsta rap.”^[323] The professor was prohibited from opining at trial “on the truth or falsity of the lyrics or representations in the rap-related videos admitted at trial, or on any of Defendant’s other lyrics, nor may he interpret those statements for the jury.”^[324]

Herron shows that courts are more likely to allow a defense rap expert to testify if her opinion is limited to educating the jury about the history and evolution of rap music; the poetry, lyrical, and musical components and conventions of rap; the pressures and influence of the music industry on rap artists; and/or the cultural components and traditions of rap and hip-hop.^[325] Courts are resistant to permit defense rap expert testimony that touches on the mental state of the defendant, especially whether the defendant intended for his lyrics to be literal and truthful accounts of criminal conduct or fiction.^[326]

Sometimes defense attorneys should entertain retaining and noticing a defense rap expert as a strategic move to push the court to disallow any expert testimony about a client’s rap lyrics. In these unique situations, the goal is to have the court fear that a “battle of the [rap] experts” will so consume the jury at the expense of the rest of the trial and prolong the trial that the court disallows any expert rap testimony at trial.^[327] A court order barring any expert rap testimony at trial is a strategic win for the defense. Without an expert, especially a law enforcement officer serving as the expert, prosecutors are at loss as to how to introduce, interpret, and contextualize a defendant’s lyrics—a strategic advantage for the defense.

In some instances, a court may become so worried about the “battle of rap experts” that it prohibits the government from using a defendant’s rap lyrics at trial—a clear strategic win for the defense. It happened in United States v. Williams, where the government sought to use rap videos featuring the defendants as evidence in a racketeering trial.^[328] The government indicated that, at trial, an agent of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) would translate certain lyrics the defendants rapped in the videos. To counter this testimony, the defense retained a rap expert to educate the jury about rap music.^[329] In addition to finding the videos inflammatory, the court feared that the “battle” over the lyrics between the ATF agent and the defense’s rap expert would consume “several days at trial” and “overshadow the acts that resulted in the instant charges.”^[330] Excluding the rap videos, the court concluded, “ensures that the defendants are tried for what they allegedly did, and not what they rapped about.”^[331]

CONCLUSION

Despite growing criticism, the prosecutorial practice of using rap artistic expression as criminal evidence is not ending any time soon. Nor is the related prosecutorial tactic of law enforcement officers serving as rap experts who opine for judges and juries the meaning, context, intent, and purposes of a defendant’s rap lyrics. The widespread failure by courts to faithfully gatekeep law enforcement officers serving as rap experts is a key contributor to both practices continuing, growing, and spreading. Courts are reflexively relying on an officer’s law enforcement experience as a shortcut to avoid conducting a thorough examination of the officer’s qualifications to provide expert testimony about rap lyrics, and if an officer used a reliable methodology to reach her opinion about the defendant’s rap lyrics. This shortcutting is putting people’s liberty at stake, further eroding the First Amendment protection of rap artistic expression, devaluing an important artistic contribution steeped in Black culture, reinforcing white superiority, and contributing to the racial disparities within and caused by the criminal legal system. This expert gatekeeping failure by courts will continue until more defense attorneys forcefully challenge prosecutors using law enforcement officers as testifying rap experts, and in doing so, pressure courts to faithfully apply expert gatekeeping rules.