assembly Bill A8681

2021-2022 Legislative Session

Limits the admissibility of evidence of a defendant's creative or artistic expression against such defendant in a criminal proceeding

download bill text pdf

Sponsored By

Current Bill Status Via S7527 - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

view actions (7)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 01, 2022 ordered to third reading rules cal.551
substituted for a8681
Jun 01, 2022 substituted by s7527
rules report cal.551
reported
May 31, 2022 reported referred to rules
Jan 10, 2022 referred to codes

Co-Sponsors

A8681 (ACTIVE) - Details

See Senate Version of this Bill:
S7527
Law Section:
Criminal Procedure Law
Laws Affected:
Add §60.77, amd §1.20, CP L

A8681 (ACTIVE) - Summary

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.

A8681 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8681
 
                           I N  A S S E M B L Y
 
                             January 10, 2022
                                ___________
 
 Introduced  by  M. of A. CRUZ -- read once and referred 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:

   Section  1.  The  criminal  procedure  law  is amended by adding a new
 section 60.77 to read as follows:
 § 60.77 RULES OF EVIDENCE;  ADMISSIBILITY  OF  EVIDENCE  OF  DEFENDANT'S
           CREATIVE EXPRESSION.
   1.  EVIDENCE OF A DEFENDANT'S CREATIVE OR ARTISTIC EXPRESSION, WHETHER
 ORIGINAL OR DERIVATIVE, MAY NOT BE RECEIVED INTO EVIDENCE  AGAINST  SUCH
 DEFENDANT IN A CRIMINAL PROCEEDING UNLESS SUCH EVIDENCE IS DETERMINED BY
 THE  COURT TO BE RELEVANT AND ADMISSIBLE, AFTER AN OFFER OF PROOF BY THE
 PROPONENT OF SUCH EVIDENCE OUTSIDE THE HEARING  OF  THE  JURY,  OR  SUCH
 HEARING  AS THE COURT MAY REQUIRE, AND AN ON-THE-RECORD STATEMENT BY THE
 COURT OF THE FINDINGS OF FACT ESSENTIAL TO ITS DETERMINATION.
   2. IN ORDER TO OVERCOME THE PRESUMPTION OF INADMISSIBILITY OF EVIDENCE
 OF DEFENDANT'S CREATIVE EXPRESSION, THE PROFFERING PARTY  MUST  AFFIRMA-
 TIVELY PROVE BY CLEAR AND CONVINCING EVIDENCE:
   (A)  LITERAL,  RATHER THAN FIGURATIVE OR FICTIONAL, MEANING AND, WHERE
 THE WORK IS DERIVATIVE, THAT THE DEFENDANT INTENDED TO ADOPT THE LITERAL
 MEANING OF THE WORK AS THE DEFENDANT'S OWN THOUGHT OR STATEMENT;
   (B) A STRONG FACTUAL NEXUS INDICATING  THAT  THE  CREATIVE  EXPRESSION
 REFERS TO THE SPECIFIC FACTS OF THE CRIME ALLEGED;
   (C) RELEVANCE TO AN ISSUE OF FACT THAT IS DISPUTED; AND
   (D)   DISTINCT  PROBATIVE  VALUE  NOT  PROVIDED  BY  OTHER  ADMISSIBLE
 EVIDENCE.
   3. WHERE THE COURT ADMITS CREATIVE EXPRESSION  AS  CRIMINAL  EVIDENCE,
 THE  COURT  HAS  A  DUTY  TO  APPLY CAREFUL REDACTIONS, PROVIDE LIMITING
 INSTRUCTIONS, AND CONSIDER THE LEAST PREJUDICIAL MEANS OF PRESENTING THE
 CREATIVE EXPRESSION TO THE FACT-FINDER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13206-02-1