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.