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Rap and the State’s double whammy: Lack of expert challenge to racist stereotyping

Monday 10 May 2021

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The use of Rap lyrics in prosecutions in the UK mirrors the worrying approach across the pond.  The defendants who are prosecuted are Black or Brown and face a double whammy:

(i) The State calls on police officers to provide their ‘interpretation’ of Rap. They are often unqualified. Directly or indirectly, the state relies on racist stereotypes.

(ii) Far too often defence lawyers don’t contest the lack of expertise[1] and fail to instruct independent rap experts to assist in arguments to exclude or to inform the jury about the reality of rap. 

During the Garden Court webinar on prosecuting Rap[2] we asked our audience three questions. The responses are shocking:

1. 43% of respondents stated that a client had been prosecuted where some of the evidence used included Rap / Drill lyrics.
2. Only 16% of respondents had instructed a defence expert in a case that had involved Rap / Drill lyrics.
3. The age of the youngest defendant to have been prosecuted where some of the evidence included Rap / Drill lyrics that a client had written was:
15-17 years: 57%
18-21 years: 29%
Over 21 years: 14%

These statistics confirm anecdotal evidence that the State is using Rap and Drill lyrics to prosecute  children in circumstances where the vast majority of defence teams have not instructed a defence expert on Rap or Drill.

The most recent and powerful analysis of the state’s manipulation of rap is a short film from the US entitled The Racist Roots of Rap on Trial.[3] This is essential and compelling viewing. In less than 16 minutes Sidney Madden and Rodney Carmichael graphically demonstrate the inequalities of the justice system using examples from the book Rap on trial: race, lyrics and guilt in America written by Andrea Dennis and Erik Nielson. The introduction profiles the case of Drakeo the Ruler who was represented by John Hamasaki. All three were and are panellists on the Garden Court webinar on prosecuting rap. 

In February 2021 the UK based organisation Justice launched a disturbing report entitled Tackling Racial Injustice: Children and the Youth Justice System[4]. The Justice working party stated that the misuse of Drill music to secure convictions is a “profound example” of the systemic racism which has left Black culture repeatedly under attack in this country. The issue of police officers providing ‘expert’ evidence in court is succinctly summed up by the observation that “this amounts to no more than the prosecution calling itself to give evidence.” The Justice report made two key recommendations on the topic of experts in Rap and Drill:

(i) Courts should apply more rigour in determining the relevance and admissibility of Drill due to the corrosive effect of portraying a genre of music so closely connected to Black communities as innately illegal, dangerous and problematic.

(ii) Only properly qualified experts should be allowed to give evidence[5].

The very fact that the courts and prosecution authorities are being told to ensure that only experts who genuinely ‘understand Drill and its cultural context.’ should be  instructed  demonstrates the depths of the problem in the UK justice system. No wonder cases have gone so disastrously wrong. The report also makes the point that the problem of racial injustice extends much further, finding that ‘52% of those in custody aged 10-17 were from an ethnic minority background, compared to 18% of the general population’…What a terrible indictment of our justice system and society. 

In April 2021 Professor of Law Tony Ward and Shahrzad Fouladvand, a lecturer in International Criminal Law, examined how courts regulated the admission of expert evidence and whether defence teams challenged reports from police officers who inferred gang membership from rap lyrics and videos. In their excellent article Bodies of knowledge and robes of expertise [Crim. L.R. 2021, 6, 442-460] they stated ‘Unfortunately, there is nothing in recently reported cases to indicate that police gang expertise is being subjected to any kind of rigorous scrutiny….The failure of the defence to challenge this evidence appears to be symptomatic of the failure of the bar to take up the challenge of the “new and more rigorous approach” of CrimPR PD 19A (Expert Evidence). Expert evidence on gangs is in particular need of close scrutiny because of the risk that it will be tainted by structural or institutional racism. Even if an individual police expert is free of personal prejudice, the institutional “body of knowledge” on which they draw is one in which serious violence is much more likely to be identified as gang-related when it occurs in areas with high BAME populations than when it occurs in predominantly white areas.’ The article is impressive, the detail comprehensive and is necessary reading for all lawyers and judges.

Meanwhile there is some good news. Dr Eithne Quinn, a senior lecturer and expert witness on Rap, has set up a group of Rap and Drill experts and they are now receiving numerous instructions from lawyers up and down the UK. She said “As the focus falls ever more acutely on the expertise of experts on all sides, I think defence teams need to routinely instruct separate rap, ‘gang’ and language experts as necessary – there are few people with all these skills combined. Equipped with several reports, the defence would be well-positioned to scrutinize and contest the evidence.” 

However, demand is beginning to outstrip supply and additional high-quality experts are required. Rappers, music labels and academics do ‘understand Drill and its cultural context’ so it is vital that they step up and start to give evidence to redress the terrible inequality of arms that Black and Brown defendants, in particular children, face in the criminal courts.

Part 2 of Garden Court Criminal Defence team’s  international webinar How the US and UK state criminalise Rap and how to combat it will take place on Wednesday 12 May.

The panel consists of US academics, attorneys, and UK lawyers. We will consider, share, and discuss tactics on how to combat the state’s use of Rap lyrics in prosecuting serious crime, referencing recent articles and international expertise.

We will explore issues including: Why aren’t UK defence lawyers instructing Rap experts? Are police officers qualified to give expert evidence on Rap? What happens in capital cases and how do you deal with the pressure? And how can Rappers and their fans enjoy freedom of speech without fear of prosecution?

Keir Monteith QC is a member of the Garden Court Chambers Criminal Defence Team and Chair of the Garden Court webinars on prosecuting rap. 

Notes:

[1] Bodies of knowledge and robes of expertise: expert evidence about drugs, gangs and human trafficking by Tony Ward and Shahrzad Fouladvand Criminal Law Review Crim. L.R. 2021, 6, 442-460. Crim. L.R. 450

[2] Black Lives Matter Event Series – Part 1: How the US and UK state criminalise Rap and how to combat it. Wednesday 20-1-2021. 53 out of 211 voted. Those responding N/A have been removed from the percentages.

[3] The Racists Roots of Rap on Trial. Louder than a Riot / NPR Music. Mac the Camouflage Assassin. Boosie Badazz. Drakeo the Ruler. Mayhem Mal. Since the 1990s, police and prosecutors have used lyrics to build and try criminal cases against rap artists. It’s weak evidence and lazy prosecution that blurs the distinction between entertainment and criminal confession. And it’s only happening in hip-hop. From the US government’s policing of jazz and blues to rap lyrics on trial, NPR Music’s Rodney Carmichael and Sidney Madden trace Black music’s criminalized history and lay out the racist implications behind prosecuting hip-hop.

[4] https://justice.org.uk/wp-content/uploads/flipbook/46/book.html

[5] Recommendation 13: Evidence of producing Drill music or appearing in Drill videos should not be used as bad character evidence unless it can be shown to be relevant to the specific crime. Moreover, we consider that courts should apply more rigour in determining the relevance and admissibility of Drill due to the corrosive effect of portraying a genre of music so closely connected to Black communities as innately illegal, dangerous and problematic (para 2.53). Recommendation 14: Joint experts should genuinely understand Drill and its cultural context. Any report on the content should, where possible, be agreed by both the defence and prosecution. This would allow for a more objective assessment of the relevance of the evidence, and safeguard against inappropriate extensions of what might be viewed as opinion evidence. (para 2.54).

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