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.
However, the California measure would apply more broadly to any creative work, including other kinds of music, poetry, film, dance, performing arts, visual arts, and fiction.
New York introduced Senate Bill S7527 which is active and establishes an assumption of the inadmissibility of evidence of a defendant’s creative or artistic expression against such defendant in a criminal proceeding; requires the proffering party to affirmatively prove that the evidence is admissible by clear and convincing evidence.
In New York State the purpose of this legislation is to protect freedom of speech and artistic expression in New York State. This bill effectuates the enhanced free speech protections provided by the New York State Constitution, ensuring that criminal defendants are tried based upon evidence of criminal conduct, not the provocative nature of their artistic works and tastes. Source: www.nysenate.gov, S7527. 2021 Nov 17. NY State Senate Bill S7527. NY State Senate. [accessed 2022 Aug 29].
Bill S-7527 sheds light on the admissibility of evidence, the transformation of figurative expressions from art to fact, and confusing criminal court proceeding by turning them into instruments for repressing provocative speech. Moreover, these practices ignore the foundational principle that a criminal case should be tried on the facts and not by making the inclination that an artist might have a prerequisite to commit a crime based on their form of artistic expression.
- AB-2799 Evidence: admissibility of creative expressions
- s7527 Admissibility of evidence of a defendant’s creative expression