November 30, 2022

Volume XII, Number 334

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November 30, 2022

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California Limits Use Of Creative Expressions In Criminal Proceedings

One of the more unusual bills enacted by the legislature this year concerns the use of "creative expression" in criminal proceedings.  AB 2799 (Jones-Sawyer) 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.  

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XII, Number 279
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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
Partner

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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