Assembly Bill No. 2799: Introduced by Assembly Member Jones-Sawyer

AMENDED IN SENATE AUGUST 9, 2022
AMENDED IN SENATE JUNE 6, 2022

AMENDED IN ASSEMBLY MARCH 10, 2022
california legislature—2021–22 regular session
ASSEMBLY BILL No. 2799
Introduced by Assembly Member Jones-Sawyer
February 18, 2022
An act to add Section 352.2 to the Evidence Code, relating to

evidence.
legislative counsel’s digest

AB 2799, as amended, Jones-Sawyer. 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
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AB 2799 —2—
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,
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.
Vote: 2⁄3. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows:
line 1 SECTION 1. The Legislature finds and declares all of the

line 2 following:
line 3 (a) Existing precedent allows artists’ creative expression to be
line 4 admitted as evidence in criminal proceedings without a sufficiently
line 5 robust inquiry into whether such evidence introduces bias or
line 6 prejudice into the proceedings. In particular, a substantial body of
line 7 research shows a significant risk of unfair prejudice when rap lyrics
line 8 are introduced into evidence. Stuart P. Fischoff, “Gangsta’ Rap
line 9 and a Murder in Bakersfield,” 29 J. Applied Soc. Psych. 795, 803
line 10 (1999); Carrie B. Fried, “Who’s Afraid of Rap? Differential
line 11 Reactions to Music Lyrics.” J. Applied Soc. Psych. 29:705–721
line 12 (1999); Adam Dunbar and Charis E. Kubrin, “Imagining Violent
line 13 Criminals: An Experimental Investigation of Music Stereotypes
96
—3— AB 2799
line 1 and Character Judgments,” Journal of Experimental Criminology

line 2 14:507-528 (2018).
line 3 (b) It is the intent of this Legislature to provide a framework by
line 4 which courts can ensure that the use of an accused person’s creative
line 5 expression will not be used to introduce stereotypes or activate
line 6 bias against the defendant, nor as character or propensity evidence;
line 7 and to recognize that the use of rap lyrics and other creative
line 8 expression as circumstantial evidence of motive or intent is not a
line 9 sufficient justification to overcome substantial evidence that the
line 10 introduction of rap lyrics creates a substantial risk of unfair
line 11 prejudice.
line 12 SEC. 2. Section 352.2 is added to the Evidence Code, to read:
line 13 352.2. (a) In any criminal proceeding where a party seeks to
line 14 admit as evidence a form of creative expression, the court, while
line 15 balancing the probative value of that evidence against the
line 16 substantial danger of undue prejudice under Section 352, shall
line 17 consider, in addition to the factors listed in Section 352, that: (1)
line 18 the probative value of such expression for its literal truth or as a
line 19 truthful narrative is minimal unless that expression is created near
line 20 in time to the charged crime or crimes, bears a sufficient level of
line 21 similarity to the charged crime or crimes, or includes factual detail
line 22 not otherwise publicly available; and (2) undue prejudice includes,
line 23 but is not limited to, the possibility that the trier of fact will, in
line 24 violation of Section 1101, treat the expression as evidence of the
line 25 defendant’s propensity for violence or general criminal disposition
line 26 as well as the possibility that the evidence will explicitly or
line 27 implicitly inject racial bias into the proceedings.
line 28 (b) If proffered, proffered and relevant to the issues in the case,
line 29 the court shall consider all of the following: the following as well
line 30 as any additional relevant evidence offered by either party:
line 31 (1) Credible testimony on the genre of creative expression as
line 32 to the social or cultural context, rules, conventions, and artistic
line 33 techniques of the expression.
line 34 (2) Experimental or social science research demonstrating that
line 35 the introduction of a particular type of expression explicitly or
line 36 implicitly introduces racial bias into the proceedings.
line 37 (3) Evidence to rebut such research or testimony.
line 38 (c) For purposes of this section, “creative expression” means
line 39 the expression or application of creativity or imagination in the
line 40 production or arrangement of forms, sounds, words, movements,
96
AB 2799 —4—
line 1 or symbols, including, but not limited to, music, dance,

line 2 performance art, visual art, poetry, literature, film, and other such
line 3 objects or media.
line 4 (d) The question of the admissibility of a form of creative
line 5 expression shall be heard in limine and determined by the court,
line 6 outside the presence and hearing of the jury, pursuant to Section
line 7 402. The court shall state on the record its ruling and its reasons
line 8 therefor.
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AMENDED IN SENATE AUGUST 9, 2022

AMENDED IN SENATE JUNE 6, 2022

ASSEMBLY BILL No. 2799

Introduced by Assembly Member Jones-Sawyer

February 18, 2022

An act to add Section 352.2 to the Evidence Code, relating to

legislative counsel’s digest

The people of the State of California do enact as follows:

line 1 SECTION 1. The Legislature finds and declares all of the

line 1 and Character Judgments,” Journal of Experimental Criminology

line 1 or symbols, including, but not limited to, music, dance,

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