I’ve written before about prosecutors trying to use rap lyrics against criminal defendants. In those cases prosecutors were trying to use the defendant’s rap lyrics as what’s called propensity evidence – basically showing the jury that they were a bad person, and were therefore more likely to commit whatever crime they were now accused of. Propensity evidence is generally inadmissible in criminal trials, because juries should only convict people on the facts, not on how they perceive the defendant (I’m oversimplifying it, yes, but that’s basically the idea).

In a new twist on this topic, prosecutors charged Brandon Duncan, a rapper in California, with conspiracy simply because of his rap lyrics. Let’s be clear: they did not accuse him of committing any actual, physical, crime. Instead, they accused him of conspiracy because he rapped about what some gang members were doing. Not a joke.

Under California’s conspiracy law, a person can be guilty of conspiracy if they are a member of a gang and “willfully promote, further, assist, or benefit from any felonious criminal conduct” of the gang. So, the logic goes, that by potentially being a member of a gang, by rapping about what was going on around him, and therefore “benefiting” from gang activity, Duncan was therefore guilty of conspiracy. Keep in mind that the only real evidence that Duncan was ever in a gang was that he grew up in a bad neighborhood.

So, wait. Why not stop there? Could Martin Scorsese be guilty of this for making the movie Gangs of New York? What about Jack Nicholson for his role in The Departed for playing the part of Whitey Bulger, a “known gang member”? Nicholson is from New Jersey, after all, and according to his Wikipedia page spent an entire high school year in detention. Maybe he was a gang member. The list could go on, and on, and on…

On Monday the judge in Duncan’s case threw those charges out. Hopefully this is the last time we see something like Duncan’s case, but only time will tell.