In our previous posts we have analyzed and discussed Louisiana’s and California’s new state laws to address the controversial use of lyrics as evidence in court. In this post we focus on the birthplace of rap and New York’s current proposed Senate Bill S464.
New York, specially 1520 Sedgwick Avenue in the Bronx, has earned the title of the birthplace of hip hop and rap. The story goes that in 1973, DJ Kool Herc, at the request of his sister Cindy Campbell threw a “Back-To-School” party at the 1520 Community Center and showed off his unique style of music for the first time. DJ Herc used a certain turntable technique to stretch a song’s drum break by playing the break portion of two identical records consecutively creating the new genre of hip hop. This technique took off within the local community as other DJs would try their hand at creating hip hop music.
Rap began as “commentary” on a particular DJ’s skills, in the form of rhymes spoken over the hip hop tracks. Rap and hip hop stem from the combination of traditionally African-American forms of music—including jazz, soul, gospel, and reggae—and the African oral tradition of storytelling. Since then, rap has evolved to a genre that is as diverse as the city it was born in.
It is important to note that in the 1970’s when rap gained mainstream attention, the genre began to “commercialize.” For many historians the commercialization of rap complicated the historical significance of the genre. According to Davey D, an established source in the Bronx hip hop scene, “The business of music has bastardized rap.” In the 1990’s, the phrase “keeping it real” emerged as a way for rappers to differentiate themselves from those who “sold themselves out.” At this point the authenticity of rap began to be called into question between the artists who were “keeping it real” and the artists who were seemingly adopting a “persona” to appeal to broader mainstream audiences. Over time, the idea of a “rap persona” emerged as a marketing strategy, with an early negative exemplar of Vanilla Ice who was called out his for inauthentic lyrics which contradicted the reality of his youth.
Problems arose, however, when prosecutors began using rappers’ lyrics against them in court, without differentiating between the natural person defendant and a “rap persona” he or she may have created.
A prime example of the challenges of criminal prosecutions based on a rap persona is the trial of Daniel Hernandez, aka Tekashi 69 (or 6ix9ine), in New York. Hernandez made a career out of flaunting “Tekashi 69’s” dangerous lifestyle on social media, fueled with guns, money, and affairs with other rappers’ girlfriends. Tekashi 69 has a reputation as a “proud public menace” and is a self-described “super villain.” In 2018, Hernandez was arrested along with five other men who were part of a gang known as the Nine Trey Gangsta Bloods for federal racketeering charges. Prosecutors used the Tekashi 69 lyrics as evidence that Hernandez was a criminal and part of the gang. Hernandez cut a deal with prosecutors and became the star witness for the state’s case against the Nine Trey Gangsta Bloods. But, while detailing his involvement with the gang during his testimony, Hernandez suddenly shifted his demeanor, prompting the media to note that he “dropped the Tekashi 69 persona.” It seemed clear it wasn’t “Tekashi 69” that was testifying, but instead Daniel Hernandez—which of course is the legal reality and status of Hernandez’position as a very real, very natural person finding himself the accused defendant in a criminal trial. This stark contrast between Hernandez in his personal life and the Tekashi 69 persona should give pause as to ascribing “statements” made in the latter’s rap lyrics to actions and intent of the former in real life.
* * *
As of January 2025, a version of Rap Act in New York passed New York State Senate on May 24, 2024 and made it to the New York Assembly Floor. However, the 2023-2024 legislation session ended before bill passed the Assembly Floor. The bill has been prefiled for the 2025-2026 legislation session.
The bill proposes the addition of Rule 60.77 to the New York Rules of Evidence which create stricter guidelines for the admissibility of evidence for creative expressions. The bill, similarly, to the California rap act, defines creative expressions as “the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols, including but not limited to music, dance, performance art, visual art, poetry, literature, film and other such objects or media.”
Proposed Rule 60.77 creates stricter levels of admissibility of creative expressions for any purposes which would make the rule stricter than the Louisiana rap act, which only guides the admissibility of creative expressions when used as character evidence. The bill’s approach is similar to the current proposed Federal act and the California act in that the bill puts a strong emphasis on the presumption of inadmissibility of a defendant’s creative expression unless it is proven to be relevant to the case. The rule creates presumption against admissibility requiring clear and convincing evidence. Along with the common rules of admissibility which require that the evidence be relevant and have a distinct probative value, the proposed Rule 60.77 includes that the admissibility of creative evidence must also be (1) literal, rather than figurative or fictional and that (2) there is a “strong factual nexus” to the crime. A court hearing is required, and the judge must make “on-the-record findings” before admitting such evidence.
Overall, the New York act is most similar to the current proposed Federal act, except that it only governs criminal proceedings, and the Federal act applies to both civil and criminal proceedings. The most comprehensive rap act would still be the California act as it is still the only act which has an explicit emphasis on mitigating racial bias.
As noted before, the New York rap act is still pending, and we will continue to follow any legislative updates. We will also update on any pending legislation in Illinois, New Jersey, Missouri, and Maryland.