California Legislature Seeks to Protect Creative Expression in Criminal Trials

A California law that aims to limit the manner in which a party in a criminal trial can introduce works of creative expression as evidence has gone into effect this year. This law is the first in the country, though other states may soon follow California’s lead. The law broadly defines creative expression as “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.”[1] However, the legislature acknowledges that its main focus is on the use of rap lyrics specifically as introducing racial bias into the criminal proceedings, stating that “a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence.”[2] The law, which amends California’s Evidence Code, outlines a narrow test that the Court would need to apply. It states the factors the Court must consider, including “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.”[3] This is a very reasonable procedure in the face of potential racial bias. An important aspect of creative expression is that it is not simply created in a vacuum. A song is written for an audience, even if it is an audience of one. A piece of art is meant for the interpretation of others. That additional element casts doubt on the specific, literal, veracity of what is being said or conveyed. It is also inherently expressive, which is not necessarily a reflection on the artist or their character. Furthermore, this law does not completely exclude all forms of artistic expression. It simply requires that the expression in question be of greater probative value to the alleged crime than another form of expression that may be more prejudicial than probative.

For as competent as this law appears, it does mark a continued overhaul of the judicial procedures by the California legislature. In 2020, the California Legislature passed AB 3070, which changed the manner in which peremptory challenges could be objected to.[4] Another law that went into effect in 2023 allows prisoners on death row to appeal their cases on the basis of racial discrimination.[5] These actions, as much as they are good faith efforts to eliminate bias and limit injustice, represent an erosion of the independence required of any judicial body. The judicial branch must remain at arms length of any elected body to promote fairness and ensure a standard of judicial discretion. The California Legislature is a body of politicians with their own agendas and severely limited judicial experience. Only time will truly tell if their continued incursions on the judiciary’s independence will adversely affect justice. One can only hope it will not.