Lyrical Evidence: The Case Against Young Thug and Gunna

By: Molly Mitchell

Cassette

Two of rap’s most popular artists, Jeffrey Lamar Williams (“Young Thug”) and Sergio Kitchens (“Gunna”), were recently indicted by the Fulton County District Attorney for conspiracy to violate Georgia’s Racketeer Influenced Corrupt Organizations Act (“RICO”). Both artists were indicted along with 27 others in Fulton County on May 8 for the alleged acts of Young Slime Life (“YSL”), an alleged gang that prosecutors hold to be connected to Young Thug’s YSL Records Label. The indictment includes acts that date back to January 2013, and it also accuses other YSL members of armed robbery, murder, attempted murder, and possession of firearms and drugs.

The lengthiest part of the indictment is count one, conspiracy to violate Georgia’s RICO statute, where the District Attorney has listed 182 overt acts in furtherance of the conspiracy. Georgia’s RICO statute is similar to the federal RICO statute—both laws are intended to target organized crime and are used to prosecute actors who are higher up in criminal enterprises. However, Georgia’s RICO statute defines racketeering more broadly than the federal statute, and it takes less to prove a pattern of racketeering under the Georgia law.

One aspect of the case that has sparked controversy and garnered public attention is the evidence listed for the overt acts in furtherance of the conspiracy. The evidence includes the defendants’ social media posts, pictures, phone calls, and notably the lyrics from ten songs by either Young Thug, Gunna, or both together, which raises questions related to the use of artistic expression as evidence in criminal proceedings and freedom of speech. Amongst the songs listed are “Ski,” which went viral on TikTok, and, ironically, “Take It to Trial,” one of Young Thug’s more recent releases.

Despite public pushback from other artists and both Young Thug’s and Gunna’s attorneys, the First Amendment does not prevent prosecutors from using a defendant’s lyrics or art against them in criminal proceedings under cases such as U.S. v. Herron or U.S. v. Pierce. In fact, this is not the first time rap music has been on trial. The New York Police Department similarly cited Bobby Shmurda’s lyrics in an indictment in 2014.

However, there has been judicial, public, and legislative opposition against using song lyrics in a criminal prosecution where the lyrics could be irrelevant and highly prejudicial to the jury’s decision. For example, the New Jersey Supreme Court held that, “probative evidence may not be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.” The court heavily emphasized the prejudicial effect that song lyrics, which are a form of artistic expression rather than literal fact, can have on jurors.

Amongst the public, rap artists such as Jay-Z and Meek Mill have brought attention to Young Thug and Gunna’s indictment and the use of song lyrics in a criminal prosecution. Both Jay-Z and Meek Mill have supported legislative efforts against the practice, such as New York’s Senate Bill S7527. The bill’s summary states that it “[e]stablishes an assumption of the inadmissibility of a defendant’s creative or artistic expression against such defendant in a criminal proceeding.” It also “requires the proffering party to affirmatively prove that the evidence is admissible by clear and convincing evidence.” The bill passed by a 38-23 vote in the New York senate nearly one week after Young Thug and Gunna’s indictment.

Essentially, the New York bill would establish a clear and convincing evidence standard for the admissibility of song lyrics, making it more difficult for prosecutors to use song lyrics against a criminal defendant. Prosecutors’ use of song lyrics would still be allowed, but the New York bill resembles the holding in the Skinner case, i.e., that there must be a strong nexus between the song lyrics and the specific offense. As the public turns its attention to Young Thug and Gunna’s indictment and possible trial, it will be interesting to see which states follow New York, the first state in the country to make legislative efforts to limit the use of lyrics against criminal defendants.

Molly Mitchell is a second-year student at Wake Forest University School of Law. She holds a Bachelor of Arts in Economics from the University of North Carolina at Chapel Hill. Upon graduation, she intends to practice in the areas of Mergers & Acquisitions and Private Equity.