Amended IN Senate June 06, 2022 Amended IN Assembly March 10, 2022 CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 2799Introduced by Assembly Member Jones-SawyerFebruary 18, 2022 An act to add Section 1127i to the Penal Code, relating to criminal trials.An act to add Section 352.2 to the Evidence Code, relating to evidence.LEGISLATIVE COUNSEL'S DIGESTAB 2799, as amended, Jones-Sawyer. Criminal trials: jury instructions.Evidence: admissibility of creative expressions.Existing law permits a court to exclude evidence if its probative value is substantially outweighed by specified factors, including the probability that its admission will create substantial danger of undue prejudice. Existing law permits a court to hear and determine the question of admissibility of evidence out of the presence or hearing of the jury.This bill would require a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice. The bill would define creative expression as the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, as specified. The bill would require a court, in balancing the probative value of a creative expression against the substantial danger of undue prejudice, to first consider that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions. The bill would then require a court to consider that undue prejudice includes the possibility that the trier of fact will treat the creative expression as evidence of the defendants propensity for violence or criminal disposition, as well as the possibility that the evidence will inject racial bias into the proceedings. The bill would require the court to consider, if proffered, credible testimony on the genre of creative expression as to the context of the expression, research demonstrating that the introduction of a particular type of expression introduces racial bias into the proceedings, and evidence to rebut such research or testimony. The bill would require a court to determine the admissibility of a form of creative expression in a hearing outside the presence and hearing of the jury, and state on the record the courts ruling and reasoning therefor.The California Constitution provides for the Right to Truth-in-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.Because this bill may exclude from a criminal action a form of creative expression that would otherwise be admissible, it requires a 2/3 vote of the Legislature.Existing law governs the proceedings of criminal trials. When the evidence and closing arguments are concluded, existing law authorizes the judge to charge the jury, and to do so on any points of law pertinent to the issue, if requested by either party. Existing law authorizes the judge to state the testimony, comment on the evidence, testimony, and credibility of any witness as is necessary for the proper determination of the case, and declare the law. Existing law authorizes a trial judge, at the beginning of or during the trial, and without any request from either party, to give the jury such instructions on the law applicable to the case as they may deem necessary for the jurys guidance on hearing the case. Upon the jury retiring for deliberation, existing law requires the court to advise the jury of the availability of a written copy of the jury instructions.This bill would create a new jury instruction for a judge, upon the request of a party, to use in a criminal trial where a form of creative expression, as defined, is admitted into evidence as evidence of guilt.Digest Key Vote: MAJORITY2/3 Appropriation: NO Fiscal Committee: NO Local Program: NO Bill TextThe people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Existing precedent allows artists creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. Stuart P. Fischoff, Gangsta Rap and a Murder in Bakersfield, 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, Whos Afraid of Rap? Differential Reactions to Music Lyrics. J. Applied Soc. Psych. 29:705721 (1999); Adam Dunbar and Charis E. Kubrin, Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments, Journal of Experimental Criminology 14:507-528 (2018).(b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused persons creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.SEC. 2. Section 352.2 is added to the Evidence Code, to read:352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.(b) If proffered, the court shall consider all of the following:(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.(3) Evidence to rebut such research or testimony.(c) For purposes of this section, creative expression means 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.(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.SECTION 1.Section 1127i is added to the Penal Code, to read:1127i.(a)In a criminal trial or proceeding where a form of creative expression is admitted into evidence as evidence of guilt, upon the request of a party, the court shall instruct the jury as follows or admonish the jury with a substantially similar instruction:In evaluating the evidence of creative expression that has been introduced, this evidence should be viewed with caution and close scrutiny. You should not use the evidence to support a finding that the defendant has the propensity to commit a crime or as character evidence.(b)As used in this section, a creative expression means 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.(c)In addition to the jury instruction required under subdivision (a), the court may provide the jury with any additional instructions it may deem necessary.
Amended IN Senate June 06, 2022 Amended IN Assembly March 10, 2022 CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION Assembly Bill No. 2799Introduced by Assembly Member Jones-SawyerFebruary 18, 2022 An act to add Section 1127i to the Penal Code, relating to criminal trials.An act to add Section 352.2 to the Evidence Code, relating to evidence.LEGISLATIVE COUNSEL'S DIGESTAB 2799, as amended, Jones-Sawyer. Criminal trials: jury instructions.Evidence: admissibility of creative expressions.Existing law permits a court to exclude evidence if its probative value is substantially outweighed by specified factors, including the probability that its admission will create substantial danger of undue prejudice. Existing law permits a court to hear and determine the question of admissibility of evidence out of the presence or hearing of the jury.This bill would require a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice. The bill would define creative expression as the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, as specified. The bill would require a court, in balancing the probative value of a creative expression against the substantial danger of undue prejudice, to first consider that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions. The bill would then require a court to consider that undue prejudice includes the possibility that the trier of fact will treat the creative expression as evidence of the defendants propensity for violence or criminal disposition, as well as the possibility that the evidence will inject racial bias into the proceedings. The bill would require the court to consider, if proffered, credible testimony on the genre of creative expression as to the context of the expression, research demonstrating that the introduction of a particular type of expression introduces racial bias into the proceedings, and evidence to rebut such research or testimony. The bill would require a court to determine the admissibility of a form of creative expression in a hearing outside the presence and hearing of the jury, and state on the record the courts ruling and reasoning therefor.The California Constitution provides for the Right to Truth-in-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.Because this bill may exclude from a criminal action a form of creative expression that would otherwise be admissible, it requires a 2/3 vote of the Legislature.Existing law governs the proceedings of criminal trials. When the evidence and closing arguments are concluded, existing law authorizes the judge to charge the jury, and to do so on any points of law pertinent to the issue, if requested by either party. Existing law authorizes the judge to state the testimony, comment on the evidence, testimony, and credibility of any witness as is necessary for the proper determination of the case, and declare the law. Existing law authorizes a trial judge, at the beginning of or during the trial, and without any request from either party, to give the jury such instructions on the law applicable to the case as they may deem necessary for the jurys guidance on hearing the case. Upon the jury retiring for deliberation, existing law requires the court to advise the jury of the availability of a written copy of the jury instructions.This bill would create a new jury instruction for a judge, upon the request of a party, to use in a criminal trial where a form of creative expression, as defined, is admitted into evidence as evidence of guilt.Digest Key Vote: MAJORITY2/3 Appropriation: NO Fiscal Committee: NO Local Program: NO
Amended IN Senate June 06, 2022 Amended IN Assembly March 10, 2022
Amended IN Senate June 06, 2022
Amended IN Assembly March 10, 2022
CALIFORNIA LEGISLATURE 20212022 REGULAR SESSION
Assembly Bill
No. 2799
Introduced by Assembly Member Jones-SawyerFebruary 18, 2022
Introduced by Assembly Member Jones-Sawyer
February 18, 2022
An act to add Section 1127i to the Penal Code, relating to criminal trials.An act to add Section 352.2 to the Evidence Code, relating to evidence.
LEGISLATIVE COUNSEL'S DIGEST
## LEGISLATIVE COUNSEL'S DIGEST
AB 2799, as amended, Jones-Sawyer. Criminal trials: jury instructions.Evidence: admissibility of creative expressions.
Existing law permits a court to exclude evidence if its probative value is substantially outweighed by specified factors, including the probability that its admission will create substantial danger of undue prejudice. Existing law permits a court to hear and determine the question of admissibility of evidence out of the presence or hearing of the jury.This bill would require a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice. The bill would define creative expression as the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, as specified. The bill would require a court, in balancing the probative value of a creative expression against the substantial danger of undue prejudice, to first consider that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions. The bill would then require a court to consider that undue prejudice includes the possibility that the trier of fact will treat the creative expression as evidence of the defendants propensity for violence or criminal disposition, as well as the possibility that the evidence will inject racial bias into the proceedings. The bill would require the court to consider, if proffered, credible testimony on the genre of creative expression as to the context of the expression, research demonstrating that the introduction of a particular type of expression introduces racial bias into the proceedings, and evidence to rebut such research or testimony. The bill would require a court to determine the admissibility of a form of creative expression in a hearing outside the presence and hearing of the jury, and state on the record the courts ruling and reasoning therefor.The California Constitution provides for the Right to Truth-in-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.Because this bill may exclude from a criminal action a form of creative expression that would otherwise be admissible, it requires a 2/3 vote of the Legislature.Existing law governs the proceedings of criminal trials. When the evidence and closing arguments are concluded, existing law authorizes the judge to charge the jury, and to do so on any points of law pertinent to the issue, if requested by either party. Existing law authorizes the judge to state the testimony, comment on the evidence, testimony, and credibility of any witness as is necessary for the proper determination of the case, and declare the law. Existing law authorizes a trial judge, at the beginning of or during the trial, and without any request from either party, to give the jury such instructions on the law applicable to the case as they may deem necessary for the jurys guidance on hearing the case. Upon the jury retiring for deliberation, existing law requires the court to advise the jury of the availability of a written copy of the jury instructions.This bill would create a new jury instruction for a judge, upon the request of a party, to use in a criminal trial where a form of creative expression, as defined, is admitted into evidence as evidence of guilt.
Existing law permits a court to exclude evidence if its probative value is substantially outweighed by specified factors, including the probability that its admission will create substantial danger of undue prejudice. Existing law permits a court to hear and determine the question of admissibility of evidence out of the presence or hearing of the jury.
This bill would require a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice. The bill would define creative expression as the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, as specified. The bill would require a court, in balancing the probative value of a creative expression against the substantial danger of undue prejudice, to first consider that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions. The bill would then require a court to consider that undue prejudice includes the possibility that the trier of fact will treat the creative expression as evidence of the defendants propensity for violence or criminal disposition, as well as the possibility that the evidence will inject racial bias into the proceedings. The bill would require the court to consider, if proffered, credible testimony on the genre of creative expression as to the context of the expression, research demonstrating that the introduction of a particular type of expression introduces racial bias into the proceedings, and evidence to rebut such research or testimony. The bill would require a court to determine the admissibility of a form of creative expression in a hearing outside the presence and hearing of the jury, and state on the record the courts ruling and reasoning therefor.
The California Constitution provides for the Right to Truth-in-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill may exclude from a criminal action a form of creative expression that would otherwise be admissible, it requires a 2/3 vote of the Legislature.
Existing law governs the proceedings of criminal trials. When the evidence and closing arguments are concluded, existing law authorizes the judge to charge the jury, and to do so on any points of law pertinent to the issue, if requested by either party. Existing law authorizes the judge to state the testimony, comment on the evidence, testimony, and credibility of any witness as is necessary for the proper determination of the case, and declare the law. Existing law authorizes a trial judge, at the beginning of or during the trial, and without any request from either party, to give the jury such instructions on the law applicable to the case as they may deem necessary for the jurys guidance on hearing the case. Upon the jury retiring for deliberation, existing law requires the court to advise the jury of the availability of a written copy of the jury instructions.
This bill would create a new jury instruction for a judge, upon the request of a party, to use in a criminal trial where a form of creative expression, as defined, is admitted into evidence as evidence of guilt.
## Digest Key
## Bill Text
The people of the State of California do enact as follows:SECTION 1. The Legislature finds and declares all of the following:(a) Existing precedent allows artists creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. Stuart P. Fischoff, Gangsta Rap and a Murder in Bakersfield, 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, Whos Afraid of Rap? Differential Reactions to Music Lyrics. J. Applied Soc. Psych. 29:705721 (1999); Adam Dunbar and Charis E. Kubrin, Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments, Journal of Experimental Criminology 14:507-528 (2018).(b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused persons creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.SEC. 2. Section 352.2 is added to the Evidence Code, to read:352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.(b) If proffered, the court shall consider all of the following:(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.(3) Evidence to rebut such research or testimony.(c) For purposes of this section, creative expression means 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.(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.SECTION 1.Section 1127i is added to the Penal Code, to read:1127i.(a)In a criminal trial or proceeding where a form of creative expression is admitted into evidence as evidence of guilt, upon the request of a party, the court shall instruct the jury as follows or admonish the jury with a substantially similar instruction:In evaluating the evidence of creative expression that has been introduced, this evidence should be viewed with caution and close scrutiny. You should not use the evidence to support a finding that the defendant has the propensity to commit a crime or as character evidence.(b)As used in this section, a creative expression means 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.(c)In addition to the jury instruction required under subdivision (a), the court may provide the jury with any additional instructions it may deem necessary.
The people of the State of California do enact as follows:
## The people of the State of California do enact as follows:
SECTION 1. The Legislature finds and declares all of the following:(a) Existing precedent allows artists creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. Stuart P. Fischoff, Gangsta Rap and a Murder in Bakersfield, 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, Whos Afraid of Rap? Differential Reactions to Music Lyrics. J. Applied Soc. Psych. 29:705721 (1999); Adam Dunbar and Charis E. Kubrin, Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments, Journal of Experimental Criminology 14:507-528 (2018).(b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused persons creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.
SECTION 1. The Legislature finds and declares all of the following:(a) Existing precedent allows artists creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. Stuart P. Fischoff, Gangsta Rap and a Murder in Bakersfield, 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, Whos Afraid of Rap? Differential Reactions to Music Lyrics. J. Applied Soc. Psych. 29:705721 (1999); Adam Dunbar and Charis E. Kubrin, Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments, Journal of Experimental Criminology 14:507-528 (2018).(b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused persons creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.
SECTION 1. The Legislature finds and declares all of the following:
### SECTION 1.
(a) Existing precedent allows artists creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. Stuart P. Fischoff, Gangsta Rap and a Murder in Bakersfield, 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, Whos Afraid of Rap? Differential Reactions to Music Lyrics. J. Applied Soc. Psych. 29:705721 (1999); Adam Dunbar and Charis E. Kubrin, Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments, Journal of Experimental Criminology 14:507-528 (2018).
(b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused persons creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice.
SEC. 2. Section 352.2 is added to the Evidence Code, to read:352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.(b) If proffered, the court shall consider all of the following:(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.(3) Evidence to rebut such research or testimony.(c) For purposes of this section, creative expression means 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.(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.
SEC. 2. Section 352.2 is added to the Evidence Code, to read:
### SEC. 2.
352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.(b) If proffered, the court shall consider all of the following:(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.(3) Evidence to rebut such research or testimony.(c) For purposes of this section, creative expression means 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.(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.
352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.(b) If proffered, the court shall consider all of the following:(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.(3) Evidence to rebut such research or testimony.(c) For purposes of this section, creative expression means 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.(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.
352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.(b) If proffered, the court shall consider all of the following:(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.(3) Evidence to rebut such research or testimony.(c) For purposes of this section, creative expression means 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.(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.
352.2. (a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) 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 (2) 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 defendants 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.
(b) If proffered, the court shall consider all of the following:
(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.
(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.
(3) Evidence to rebut such research or testimony.
(c) For purposes of this section, creative expression means 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.
(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to Section 402. The court shall state on the record its ruling and its reasons therefor.
(a)In a criminal trial or proceeding where a form of creative expression is admitted into evidence as evidence of guilt, upon the request of a party, the court shall instruct the jury as follows or admonish the jury with a substantially similar instruction:
In evaluating the evidence of creative expression that has been introduced, this evidence should be viewed with caution and close scrutiny. You should not use the evidence to support a finding that the defendant has the propensity to commit a crime or as character evidence.
(b)As used in this section, a creative expression means 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.
(c)In addition to the jury instruction required under subdivision (a), the court may provide the jury with any additional instructions it may deem necessary.