The new law would require judges to weigh whether allowing prosecutors to cite rap lyrics will “inject racial bias” into a criminal case.
In technical terms, AB 2799 would create a so-called presumption against the use of any creative expression as evidence – meaning not an outright ban, but a hurdle for prosecutors to overcome. The law would require courts to hold that such evidence offers “minimal” value unless the state can show that the expression was created near in time to the crime; bears a level of similarity to the crime; or includes “factual details” about the crime are not otherwise publicly available.
That type of presumption was also the centerpiece of New York’s failed legislation, but the new California law goes even further, like an express requirement that judges consider whether such evidence will “inject racial bias into the proceedings.” It also notably requires that courts consider testimony on the particular genre of expression being cited by prosecutors – a nod to the fact that experts say hip-hop’s unique conventions are often weaponized when lyrics are cited in court.
The bill would also require courts to admit testimony about “experimental or social science research” showing that a particular genre “introduces racial bias into the proceedings.” Multiple empirical studies have shown that jurors view hip-hop lyrics as more dangerous than those from other genres, even when they cover the exact same words.
With the passage of California’s law, the question becomes whether other jurisdictions will follow suit. The New York legislation passed that state’s Senate in May before failing to get a vote in the Assembly; lawmakers in Albany have vowed to re-introduce the bill next session. Lawmakers in Washington, D.C. have also introduced similar restrictions for federal prosecutors, but it faces a far less certain outcome in a sharply-divided U.S. Congress.