Rhymes and Reason: Navigating the Evidentiary Admissibility of Rap Lyrics in the Courtroom

Authors: Seth Garcia and Sameer Harris

Music is a form of creative and artistic expression that has existed since time immemorial. Creating music is a method that an individual may use to convey their emotions and express themselves in a manner that may not be possible through other mediums. Today, such freedom to express oneself is being challenged in an evidentiary context in our legal world. For instance, you may have heard of the notorious YSL trial in the United States involving rap artist Young Thug, and how the original trial judge allowed for the admission of his song lyrics as evidence.[1] In the Canadian context, cases such as R v Ali demonstrate the trend of lyrics and their increasing appearances within our legal system. Although the trial judge in Ali ultimately ruled that the rap lyrics in question were inadmissible, the fundamental question remains: should rap lyrics be admissible as evidence in the courtroom?

R v Ali - Factual Background

Hashim Hashi was fatally shot on January 31, 2021, by a man who had been driving around the area.[2] The accused, Hassan Ali, is a rap musician who goes by the name “Top5” and was charged with first degree murder in relation to Mr. Hashi’s death. Although there was no evidence of a relationship between the victim and the accused, it was the Crown’s position that Mr. Ali was a member of a gang and that this murder was gang related.[3] At trial, the Crown intended to adduce evidence that included a series of rap music videos created by Mr. Ali.[4] They alleged that Mr. Ali held a leadership role in a criminal street gang entitled the “Go Getem’ Gang” (“GGG”), and that this was evidenced by Mr. Ali’s song lyrics and music videos.[5] While Mr. Hashi was an innocent non-gang member, the Crown alleged that Mr. Ali’s gang affiliations motivated him to kill any young Black man on the rival gang’s territory.[6]

The Crown and Lyrical Evidence

“Bap Bap Bap” is one music video created by Mr. Ali on May 6, 2018, that the Crown intended to submit as evidence.[7] The Crown referenced the lyrics: “I got shooters left and right that’ll kill for five,” and submitted that this displayed Mr. Ali’s gang affiliations.[8] “Demons,” another music video posted on March 26, 2019, is also alleged by the Crown to contain references to the GGG, shooters, and shootings. They alleged that the song mentions “stats” and “keeping score,” which alluded to “keeping track of how many members of each gang have been shot.”[9]

Social media posts and a YouTube interview with Mr. Ali were also submitted as evidence by the Crown to assert that Mr. Ali was motivated by gang violence to kill Mr. Hashi.[10] An Instagram post by Mr. Ali the day after the homicide stated, “[b]efore you check my Ig [Instagram]...Betta check the stats,” which was alleged by the Crown to refer to keeping track of the shootings Mr. Ali and GGG had committed.[11] Furthermore, in a YouTube interview, Mr. Ali repeatedly reaffirmed there was “no cap in my rap” (meaning all his rap lyrics were true).[12]

Upon first glance, the videos in question were clearly intended to be viewed by mature audiences and suggest that the artist has the capacity and willingness to cause violence. Furthermore, in social media posts and interviews the artist seems to have stood his ground on his songs which allude to specific instances of gang violence. However, viewing these music videos and song lyrics as evidentiary indicators of criminal activity can be dangerous from an artist’s perspective.

“Bad Character Evidence” and Good Clout: The Legal Context

Rap music, especially drill music, is rooted in a culture where music is circulated and promoted through social media and originated among Black youth.[13] To be successful in their artistry, rappers seek to attain “clout” by conveying authenticity through their lyrics, often exaggerating their affiliations with gangs and the extent of their violent activity.[14] While “clout” may lead to greater social and financial success, specific lyrical references to matters in a criminal proceeding, may imply a confession by the artist. This is especially the case where other statements by the artist continue and reinforce the exaggeration.

On its face, these rap lyrics may serve as compelling evidence about an artist’s guilt. However, as works of artistic expression, their admissibility in a criminal proceeding must be assessed critically and in their musical context. In this case, the trial judge determined that rap lyrics which implied that Mr. Ali was a member of a violent gang were presumptively inadmissible as “bad character evidence.”[15] In order to admit the rap lyrics into evidence, the Crown had to prove on a balance of probabilities that the probative value of the lyrics outweighs the prejudicial effect of its admission to the accused.[16]

While the judge did find there was limited probative value in admitting the rap lyrics, this was outweighed by the prejudicial effect of admission on Mr. Ali.[17] As a form of artistic expression, the probative value and underlying truth of lyrics is assessed with “considerable caution” because what is conveyed by a lyric is often open to interpretation and cannot be automatically assumed to be truthful.[18] In the case of rap lyrics specifically, recurring themes of drugs, violence, and gangs, along with the tendency to exaggerate to raise “clout”, cast further scrutiny on the probative value of these lyrics.[19] As such, “there is a fundamental flaw in asserting that such first person lyrics are the truth. There is even greater danger in asserting that they can be taken as amounting to a confession.”[20] In this case, the rap lyrics and social media posts did suggest that Mr. Ali and GGG held animosity towards the rival gang, but it did not show that Mr. Ali held animosity towards non-gang members living in the rival gang’s territory.[21]

The admission of rap lyrics which include references to gang violence has a significant prejudicial effect to the accused.[22] As a form of artistic expression that is intrinsically tied to young Black men, rap lyrics have significantly greater potential for prejudice than other forms of bad character evidence because they may subconsciously or consciously reaffirm a jury’s negative stereotypes of young Black men.[23] In this case, the rap lyrics suggest that Mr. Ali is an active member of a gang which inflicts significant violence and is likely to commit violence against anyone on a rival gang’s territory.[24] This suggestion is highly prejudicial to the accused, as a jury may “prejudge” Mr. Ali for the alleged murder of Mr. Hashi based on his character as inferred from the contents of the rap lyrics rather than the evidence in front of them. The potential for unconscious bias led the trial judge to determine that a limiting instruction would be insufficient to prevent moral prejudice to Mr. Ali.[25]

No Bright Line Rule for Prohibiting Lyrical Evidence

Rap lyrics may be generally unreliable as evidence on the underlying basis of artistic expression, but this does not mean that they are prohibited from admission.[26] There are two situations where the probative value of rap lyrics may be enhanced, such that it could outweigh the prejudicial impact to the accused and be admitted as evidence.[27]

The first situation is where there is other evidence that supports that what is asserted in the artistic expression is in fact a reference to real events.[28] Under this scenario, there “must be a concrete nexus between the specific details of the lyrics and the specific details of the crime.”[29] For example, in a murder case where there was other evidence that the deceased had been cremated and their phone was missing, song lyrics which stated, “now the b**** lay on some ashy stone…and if u go swimming u can find her phone” were deemed admissible as evidence.[30] In this case, the numerous songs and music videos performed by Mr. Ali did not specifically allude to the circumstances of Mr. Hashi’s murder.

The second situation is where there are assertions within the artistic expression to the effect that it is true.[31] It is common for rap artists to assert that their songs are truthful and Mr. Ali did assert so in his music videos and a YouTube interview by stating there’s “no cap in my rap.”[32] As noted by an expert opinion, assertions of veracity in rap lyrics are often “cap” intended to enhance the perceived authenticity of the artist[33] rather than genuine claims regarding the truth of its contents. In this case, the Crown conceded that Mr. Ali was an actual rap artist and did not dispute that much of the assertions of veracity were “cap.”[34]

Rap Lyrics - A Distinct Form of Artistic Expression

Many forms of artistic expression create challenges in an evidentiary context, as it can be difficult to determine what is fact or fiction. Rap lyrics create unique evidentiary challenges that arise from the nature of the music and the social contexts in which the musical artists operate.

First, rap lyrics often include references to gangs, violence, and drugs which morally prejudice a jury against the accused in a significant manner. Latent conscious and subconscious prejudice against Black men, who are often the authors of these lyrics, further enhances the potential for a musical artist to be judged for their rhymes rather than the crime itself.

Finally, while other forms of artistic expression may suggest a desired interpretation, artists of rap lyrics are prone to asserting that the claims to violence in their music are truthful. Commonly, the underlying motivation behind these assertions is to enhance their authenticity—which is crucial to financial success. However, to the uncritical eye, these assertions can appear to be wholehearted affirmations of confessions to a crime. As such, great care must be taken within our legal world when differentiating an artist’s musical expression from outright confessions of actual crimes.

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[1] Deena Zaru, “Judge rules rap lyrics can ‘conditionally’ be used as evidence in Young Thug trial” (9 November 2023), online: <abcnews.go.com/US/judge-rules-rap-lyrics-conditionally-evidence-young-thug/story?id=104760646>

[2] R v Ali, 2024 ONSC 5208 at para 1 [Ali].

[3] Ibid at 3.

[4] Ibid at 4.

[5] Ibid at 34.

[6] Ibid at 111.

[7] Ibid at 44; WORLDSTARHIPHOP, “Top 5 ‘Bap Bap Bap’” (6 May 2018), online (video): <youtube.com/watch?v=lB3O-zgpkK0>

[8] Ibid.

[9] Ibid at 45; Top5 “Top5 x NojokeJigsaw | Demons (Official Video)” (26 March 2019), online (video): <youtube.com/watch?v=9jZW8lVWSSQ>

[10] Ibid at para 4.

[11] Ibid at para 65.

[12] Ibid at para 59.

[13] Ibid at paras 143-144.

[14] Ibid.

[15] Ibid at para 84.

[16] Ibid at para 85.

[17] Ibid at paras 168.

[18] Ibid at para 130 quoting R. v. Skeete, 2017 ONCA 926 at paras 182-183.

[19] Ibid at para 131 quoting R v Campbell, 2015 ONSC 6199 at para 25.

[20] Ibid.

[21] Ibid at paras 111-112.

[22] Ibid at para 152.

[23] Ibid at para 156.

[24] Ibid at para 154.

[25] Ibid at paras 159-160.

[26] Ibid at para 132 quoting R v Mills, 2019 ONCA 940 at para 122.

[27] Ibid.

[28] Ibid at para 134.

[29] Ibid at para 134 quoting R v McCullough, 2016 ONSC 1014 at para 38.

[30] Ibid at para 135 citing R v Millard, 2017 ONSC 5275 aff’d 2023 ONCA 426

[31] Ibid at para 139.

[32] Ibid at para 140.

[33] Ibid at para 143.

[34] Ibid at para 145.