Discrimination in the jury selection process is an ongoing reality within the American criminal justice system, but measures have been taken for over a century to address the issue at both the national and state levels.
The Fourteenth and Fifteenth Amendments were ratified in 1868 and 1870, respectively, guaranteeing Black men the right to vote and serve on juries. These amendments also provided legal protections against racial discrimination, and the Civil Rights Act of 1875 officially outlawed race-based discrimination in jury selection.
But through the use of preemptory challenges – which allow attorneys to excuse jurors without showing cause – systemic bias in the jury selection process has remained widespread.
In 2020, California Assembly Bill 3070 (AB 3070) was passed in an effort to narrow the scope of qualified preemptory challenges. AB 3070 amended the Code of Civil Procedure to disallow preemptory challenges based on:
- A prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups;
- A prospective juror’s open expression of a distrust of or having had a negative experience with law enforcement or the criminal legal system;
- A prospective juror’s admission of having a close relationship with people who have been stopped, arrested, or convicted of a crime;
- A prospective juror who is not a “native English” speaker.
California AB 3070 was supported by civil rights advocates and hailed as critical legislation to help reduce racial discrimination in the jury selection process. However, while the bill essentially protected prospective jurors who express distrust or a negative experience with law enforcement officials, if those sentiments were conveyed outside of the jury selection process – such as in an artist’s rap lyrics – they could still be used as evidence against that individual in a criminal case.
And, as Erika D. Smith recently noted in a Los Angeles Times column, using words as evidence against defendants has been a common practice utilized by aggressive prosecutors hoping to win convictions.
In one case from almost a decade ago, prosecutor’s introduced lyrics written by Alex Medina, an aspiring rapper who had been charged with first-degree murder. Prosecutors argued that Medina’s lyrics should be treated not at as creative expressions, but as “journals” of his real-life “gangsta” behavior, according to Smith.
Medina was convicted, and Smith confirmed in the L.A. Times column that since that time “dozens of other rappers all over the country have had their lyrics used against them… with prosecutors and cops mining old songs and videos in search of supposed proof of gang activity.”
In fact, two platinum-selling rappers – Young Thug and Gunna – are currently facing gang-related racketeering charges in Georgia after their lyrics and music videos were submitted as evidence.
But a new bill – AB 2799 – makes California the first state to restrict how forms of creative expression can be used as evidence in criminal trials.
What is the Decriminalizing Artistic Expression Act or California AB 2799?
From books to music, forms of creative expression have long been submitted as evidence against criminal defendants. And rap lyrics in particular have been disproportionately used against men of color – often Black men – in an effort to secure convictions.
Assembly member Reggie Jones-Sawyer, the Los Angeles Democrat who authored AB 2799, said that although he was initially unaware of the scope of the problem, when it was brought to his attention by affected constituents, he was “appalled.”
“They were the first ones to really kind of enlighten me,” Jones-Sawyer said.
Accordingly, AB 2799 was drafted to limit the ways in which an artist’s lyrics can be used against them as evidence in criminal cases.
AB 2799 couldn’t ban the use of lyrics outright, but it establishes a presumption that such creative expressions have minimal value as evidence.
“California prosecutors will now need to show a judge that lyrics were written around the time of the crime, have some specific similarity to the crime, or depict ‘factual details’ about the crime that are not known to the public,” the Los Angeles Times reported.
Specifically, the bill:
- Requires a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice.
- Defines “creative expression” as the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, as specified.
- Requires a court, in balancing the probative value of a creative expression against the substantial danger of undue prejudice, to first consider that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions.
- Requires a court to consider that undue prejudice includes the possibility that the trier of fact will treat the creative expression as evidence of the defendant’s propensity for violence or criminal disposition, as well as the possibility that the evidence will inject racial bias into the proceedings.
- Requires the court to consider, if proffered and relevant to the issues in the case, credible testimony on the genre of creative expression as to the context of the expression, research demonstrating that the introduction of a particular type of expression introduces racial bias into the proceedings, and evidence to rebut such research or testimony.
- Requires a court to determine the admissibility of a form of creative expression in a hearing outside the presence and hearing of the jury, and state on the record the court’s ruling and reasoning.
The California State Assembly and Senate unanimously approved the bill in August 2022, and Governor Newsom signed it into law in September. Many high-profile rap and hip-hop artists attended the virtual ceremony, including:
- Meek Mill
- Killer Mike
- Ty Dolla Sign
- Too Short
The Decriminalizing Artistic Expression Act officially took effect on January 1 of this year.
Federal RAP Bill May Provide Additional Protections for Creative Expression
A federal bill similar to California AB 2799 known as the Restoring Artistic Protection (RAP) Act is working its way through the U.S. House of Representatives. Georgia Representative Hank Johnson and New York Representative Jamaal Bowman are reportedly spearheading the legislation.
The RAP Act would add a presumption to the Federal Rules of Evidence limiting the admissibility of evidence related to an artist’s creative or artistic expression and narrowing how that expression could be used against someone in court.
“People make the connection between a rapper and someone who is in a gang, a drug dealer, someone who is violent. Those are the kinds of things that rappers talk about in their raps. Merely saying that someone is a rapper evokes negative perceptions and brings out prejudices. So when you actually introduce the lyrics that the rapper has written, and use those lyrics as evidence against them, that seals the deal,” Representative Johnson told the Los Angeles Times.
McKenzie Scott PC is a top-rated San Diego civil rights and criminal defense firm founded by Michele Akemi McKenzie and Timothy A. Scott – two former public defenders dedicated to “fighting for the little guy.”