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Abstract

On January 1, 2023, California metaphorically dropped the mic, becoming the first state in the country to limit the use of creative expression evidence in criminal trials. The “Decriminalizing Artistic Expression Act,” or Assembly Bill 2799, was enacted as an amendment to the California Evidence Code, codified as Section 352.2. Positioned as the vanguard of a nationwide shift, this law is a formidable response to mounting apprehensions surrounding the improper admission of artistic expression, namely rap lyrics, in criminal cases. The law imposes limitations on the admission of creative expression evidence by mandating that California courts evaluate specific factors, addressing both the diminished probative value and the heightened risk of undue prejudice associated with the use of such evidence. This legislative paradigm not only sets a precedent, but also serves as the blueprint for the passage of similar laws at both the state and federal levels.

This Note will argue that while this law is a commendable advancement toward safeguarding artistic expression, it is marred by notable defects that will hinder its efficacy in achieving its intended purpose. Initially, this Note will provide a contextual background for the implementation of this law through an overview of situations where creative expression evidence has been most often invoked against criminal defendants. Then, this Note will scrutinize the law by analyzing its statutory language and legislative intent. Turning a critical eye to Section 352.2, this Note will identify several statutory deficiencies. Finally, this Note will engage in a comparative analysis of similar proposals that have been made at both the state and federal levels, before suggesting legislative improvements with the aim of optimizing the law’s implementation and ultimate objectives.

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