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.
STATE OF NEW YORK
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1738
2023-2024 Regular Sessions
IN SENATE
January 13, 2023
___________
Introduced by Sens. HOYLMAN-SIGAL, BAILEY, MYRIE, SALAZAR -- read twice
and ordered printed, and when printed to be committed to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to rules of
evidence concerning the admissibility of evidence of a defendant's
creative expression
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 60.77 to read as follows:
3 § 60.77 Rules of evidence; admissibility of evidence of defendant's
4 creative expression.
5 1. Evidence of a defendant's creative or artistic expression, whether
6 original or derivative, may not be received into evidence against such
7 defendant in a criminal proceeding unless such evidence is determined by
8 the court to be relevant and admissible, after an offer of proof by the
9 proponent of such evidence outside the hearing of the jury, or such
10 hearing as the court may require, and an on-the-record statement by the
11 court of the findings of fact essential to its determination.
12 2. In order to overcome the presumption of inadmissibility of evidence
13 of defendant's creative expression, the proffering party must affirma-
14 tively prove by clear and convincing evidence:
15 (a) literal, rather than figurative or fictional, meaning and, where
16 the work is derivative, that the defendant intended to adopt the literal
17 meaning of the work as the defendant's own thought or statement;
18 (b) a strong factual nexus indicating that the creative expression
19 refers to the specific facts of the crime alleged;
20 (c) relevance to an issue of fact that is disputed; and
21 (d) distinct probative value not provided by other admissible
22 evidence.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01703-01-3
S. 1738 2
1 3. Where the court admits creative expression as criminal evidence,
2 the court has a duty to apply careful redactions, provide limiting
3 instructions, and consider the least prejudicial means of presenting the
4 creative expression to the fact-finder.
5 § 2. Section 1.20 of the criminal procedure law is amended by adding a
6 new subdivision 46 to read as follows:
7 46. "Creative expression" means the expression or application of
8 creativity or imagination in the production or arrangement of forms,
9 sounds, words, movements or symbols, including but not limited to music,
10 dance, performance art, visual art, poetry, literature, film and other
11 such objects or media.
12 § 3. This act shall take effect immediately.
