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 defendant's 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 and relevant to the issues in the case, 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 court's 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.