The California legislature recently unanimously passed a measure that would put new regulations on how creative expression can be used in court.
The bill, AB 2799, would put new rules on using rap lyrics, as well as many other forms of creativity, as evidence in court.
If a party wishes to use “a form of creative expression” as evidence, the bill would require the court, “while balancing the probative value of that evidence against the substantial danger of undue prejudice,” to consider that the ability of such evidence to prove a point is “minimal” unless other details are met about the creative work.
The court must also consider that the judge or jury might “treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition,” and the evidence might introduce “racial bias into the proceedings.”
The bill also defines “creative expression” in broad terms and would apply to various forms of art, stating that it is “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.”
Under the new legislation, determinations concerning such evidence must be made away from the jury as well.
Democratic Assemblyman Reginald Jones-Sawyer introduced the bill in February. “What you write could ultimately be used against you, and that could inhibit creative expression,” Jones-Sawyer told The New York Times, stating that the legislation came down to a consideration of First Amendment rights.
“This is America,” he said. “You should be able to have that creativity.”
“People were going to jail merely because of their appearance,” Jones-Sawyer noted. “We weren’t trying to get people off the hook. We’re just making sure that biases, especially racial biases toward African Americans, weren’t used against them in a court of law.”
The bill now heads to the desk of Governor Gavin Newsom (D) for signature or veto. He could also decide not to take either action on the legislation by September 30, which would mean it would automatically turn into law.
Newsom’s office would not discuss pending measures, telling the Times, “[a]s will [sic] all measures that reach the governor’s desk, it will be evaluated on its merits.”
“I have some legal advice,” she told the press this week, “don’t confess to crimes on rap lyrics if you do not want them used, or at least get out of my county.”