United States: California Limits Use Of Creative Expressions In Criminal Proceedings

Gunnar Larson g at xny.io
Tue Oct 11 09:00:03 PDT 2022


One of the more unusual bills enacted by the legislature this year concerns
the use of "creative expression" in criminal proceedings.   AB 2799
defines "creative expression" 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".  Cal. Evid. Code § 352.2(c).   Existing law,
Evidence Code § 352 allows a court in its discretion to exclude evidence if
"its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury".  AB 2799 requires a court in making this
determination to also consider:

   -  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
   - 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.

The new law also requires the court to consider specified additional
evidence and make its determination outside the presence of the jury.

The bill's legislative history suggests that the primary impetus of the
bill was the use of Rap lyrics in criminal proceedings, the definition of
"creative expression" is sufficiently broad to encompass any type of music
or literary genre, including social media posts and personal letters and
other writings.

*The content of this article is intended to provide a general guide to the
subject matter. Specialist advice should be sought about your specific
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