Section 352.2 is added to the Evidence Code, to read:
(a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.
There are additional (b), (c), and (d) section that clarify section (a), but section (a) is the crux. In other words, this would not protect the crimes described here. But, why even do this in the first place? Well, a lot of good research. The research behind the bill can be divided into two genres: content / historical analyses, and experimental studies.
Content studies include:
-Kubrin, Charis E. 2005a. “Gangstas, Thugs, and Hustlas: Identity and the Code of the Street in Rap Music.” Social Problems 52(3):360–78. doi: 10.1525/sp.2005.52.3.360.
-Kubrin, Charis E. 2005b. “‘I See Death around the Corner’: Nihilism in Rap Music.” Sociological Perspectives 48(4):433–59. doi: 10.1525/sop.2005.48.4.433.
-Kubrin, Charis E., and Erik Nielson. 2014. “Rap on Trial.” Race and Justice 4(3):185–211. doi: 10.1177/2153368714525411.
To summarize, rap lyrics prominently feature violent lyrics much like first person shooters prominently feature death. The reason rap lyrics feature violence is not easily mappable to "the writers of the music actually have been violent, are violent, or will be violent" in the way that courts would might treat, say, an SMS communication or diary entry. There is an important social context here that situates the usage of violent lyrics and threats in rap music, much like there is an important social context in which GTA, Call of Duty, etc. operate. Ignoring that social context leads to differential usage of rap lyrics on trial, and overstates their probative value.
Experimental studies include:
-Dunbar, Adam, and Charis E. Kubrin. 2018. “Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments.” Journal of Experimental Criminology 14(4):507–28. doi: 10.1007/s11292-018-9342-6.
-Dunbar, Adam, Charis E. Kubrin, and Nicholas Scurich. 2016. “The Threatening Nature of ‘Rap’ Music.” Psychology, Public Policy, and Law 22(3):280–92. doi: 10.1037/law0000093.
-Fried, Carrie B. 1999. “Who’s Afraid of Rap: Differential Reactions to Music Lyrics.” Journal of Applied Social Psychology 29(4):705–21. doi: 10.1111/j.1559-1816.1999.tb02020.x.
Basically, rap music in particular is seen as violent and criminal when controlling for all other characteristics (including the actual lyrics). This what drives the concern and also corroborates the mechanisms behind Kubrin and Nielson 2014 above by demonstrating the prejudicial effects of rap music in particular.
So, this bill addresses a real harm by forcing courts to seriously weigh the prejudicial effects. Courts can - and will - introduce creative expressions (including rap!) into trials. But, prosecutors will be incentivized to have harder evidence in hand instead of making cases via that route alone, and furthermore courts will have to more seriously think about the a) social context of the creative expression (e.g. how confident should we be that this is specifically relevant to the crime at hand?) and b) the prejudicial potential (which we can see is heightened for rap music).
Love this piece. However, like a phoenix of disappointment, criminological misunderstandings arise again. This time about CA 2799!
The actual bill: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2799
Section 352.2 is added to the Evidence Code, to read:
(a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.
There are additional (b), (c), and (d) section that clarify section (a), but section (a) is the crux. In other words, this would not protect the crimes described here. But, why even do this in the first place? Well, a lot of good research. The research behind the bill can be divided into two genres: content / historical analyses, and experimental studies.
Content studies include:
-Kubrin, Charis E. 2005a. “Gangstas, Thugs, and Hustlas: Identity and the Code of the Street in Rap Music.” Social Problems 52(3):360–78. doi: 10.1525/sp.2005.52.3.360.
-Kubrin, Charis E. 2005b. “‘I See Death around the Corner’: Nihilism in Rap Music.” Sociological Perspectives 48(4):433–59. doi: 10.1525/sop.2005.48.4.433.
-Kubrin, Charis E., and Erik Nielson. 2014. “Rap on Trial.” Race and Justice 4(3):185–211. doi: 10.1177/2153368714525411.
To summarize, rap lyrics prominently feature violent lyrics much like first person shooters prominently feature death. The reason rap lyrics feature violence is not easily mappable to "the writers of the music actually have been violent, are violent, or will be violent" in the way that courts would might treat, say, an SMS communication or diary entry. There is an important social context here that situates the usage of violent lyrics and threats in rap music, much like there is an important social context in which GTA, Call of Duty, etc. operate. Ignoring that social context leads to differential usage of rap lyrics on trial, and overstates their probative value.
Experimental studies include:
-Dunbar, Adam, and Charis E. Kubrin. 2018. “Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments.” Journal of Experimental Criminology 14(4):507–28. doi: 10.1007/s11292-018-9342-6.
-Dunbar, Adam, Charis E. Kubrin, and Nicholas Scurich. 2016. “The Threatening Nature of ‘Rap’ Music.” Psychology, Public Policy, and Law 22(3):280–92. doi: 10.1037/law0000093.
-Fried, Carrie B. 1999. “Who’s Afraid of Rap: Differential Reactions to Music Lyrics.” Journal of Applied Social Psychology 29(4):705–21. doi: 10.1111/j.1559-1816.1999.tb02020.x.
Basically, rap music in particular is seen as violent and criminal when controlling for all other characteristics (including the actual lyrics). This what drives the concern and also corroborates the mechanisms behind Kubrin and Nielson 2014 above by demonstrating the prejudicial effects of rap music in particular.
So, this bill addresses a real harm by forcing courts to seriously weigh the prejudicial effects. Courts can - and will - introduce creative expressions (including rap!) into trials. But, prosecutors will be incentivized to have harder evidence in hand instead of making cases via that route alone, and furthermore courts will have to more seriously think about the a) social context of the creative expression (e.g. how confident should we be that this is specifically relevant to the crime at hand?) and b) the prejudicial potential (which we can see is heightened for rap music).