NY State Senate Bill S7527

Current Bill Status - 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 (10)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 01, 2022	ordered to third reading rules cal.551 substituted for a8681
May 17, 2022	referred to codes delivered to assembly passed senate
Jan 20, 2022	advanced to third reading
Jan 19, 2022	2nd report cal.
Jan 18, 2022	1st report cal.233
Jan 05, 2022	referred to codes
Nov 17, 2021	referred to rules

Votes

view votes

May 17, 2022 - floor Vote

S7527

floor

Aye

Nay

Absent

Excused

Abstained

Jan 18, 2022 - Codes committee Vote

S7527

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Co-Sponsors

S7527 (ACTIVE) - Details

See Assembly Version of this Bill:: A8681
Law Section:: Criminal Procedure Law
Laws Affected:: Add §60.77, amd §1.20, CP L

S7527 (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.

S7527 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S7527

SPONSOR: HOYLMAN
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to rules of
evidence concerning the admissibility of evidence of a defendant's crea-
tive expression

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this legislation is to protect freedom of speech and
artistic expression in New York State. This bill effectuates the
enhanced free speech protections provided by the New York State Consti-
tution, ensuring that criminal defendants are tried based upon evidence
of criminal conduct, not the provocative nature of their artistic works
and tastes.

 
SUMMARY OF PROVISIONS:

SECTION 1: Amends the criminal procedure law by adding a new section
60.77, Rules of evidence; admissibility of evidence of defendants' crea-

tive expression.

SECTION 2: Amends the criminal procedure law by adding a new section
1.20(46), Definition of "creative expression"

SECTION 3: Establishes the effective date.

 
JUSTIFICATION:

There is no New York without art, whether it is provoking or inspiring,
beautiful or crude. As recognized by the New York State Court of Appeals
many decades ago, New York is "a cultural center for the Nation" that
has "long provided a hospitable climate for the free exchange of ideas."
Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991). This is not
happenstance, but the direct result of the enhanced protections that
this State's Constitution provides for speech and creative expression.

Recent scholarship has highlighted a disturbing trend poised to threaten
the haven New York has always provided its artists. In courtrooms across
the country, artists' musical works are being admitted against them as
"evidence" in criminal proceedings. Just as concerning, the mere appre-
ciation of others' music-whether through reposting lyrics, performing,
or simply listening-is also being used as "evidence." Unchecked, these
practices chill free expression, transform the figurative into fact, and
warp criminal courts into instruments for suppressing provocative
speech. Moreover, these practices ignore the foundational principle that
a criminal case should be tried on the facts and not on a person's
"propensity" to commit the crime.

Rap has come under scrutiny for decades, being blamed by the media for
criminal activity, and admitted as evidence of criminal behavior by the
artist. Social scientists have linked anti-rap attitudes and racially
discriminatory behavior. But rap is just like any other creative
expression. The New Jersey Supreme Court wrote that "one cannot presume
that simply because an author has chosen to write about certain topics,
he or she has acted in accordance with those views" (State v. Skinner,
218 N.J. 496, 517, 521 (2014)). The court noted that no one believes
that Bob Marley actually "shot the sheriff," or that there's a man
buried in Edgar Allan Poe's floorboards.

This legislation would guarantee freedom of creative expression in New
York by prohibiting prosecutors from using creative expression as crimi-
nal evidence against a person without clear and convincing proof that
there is a literal, factual nexus between the creative expression and
the facts of the case.

 
PRIOR LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

This legislation will have no fiscal implications for State or local
government.

 
EFFECTIVE DATE:
This act shall take effect immediately.

S7527 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7527
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             November 17, 2021
                                ___________
 
 Introduced  by  Sens. HOYLMAN, BAILEY -- read twice and ordered printed,
   and when printed to be committed to the Committee on Rules
 
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13206-02-1

 S. 7527                             2
 
 INSTRUCTIONS, AND CONSIDER THE LEAST PREJUDICIAL MEANS OF PRESENTING THE
 CREATIVE EXPRESSION TO THE FACT-FINDER.
   § 2. Section 1.20 of the criminal procedure law is amended by adding a
 new subdivision 46 to read as follows:
   46.  "CREATIVE  EXPRESSION"  MEANS  THE  EXPRESSION  OR APPLICATION OF
 CREATIVITY OR IMAGINATION IN THE PRODUCTION  OR  ARRANGEMENT  OF  FORMS,
 SOUNDS, WORDS, MOVEMENTS OR SYMBOLS, INCLUDING BUT NOT LIMITED TO MUSIC,
 DANCE,  PERFORMANCE  ART, VISUAL ART, POETRY, LITERATURE, FILM AND OTHER
 SUCH OBJECTS OR MEDIA.
   § 3. This act shall take effect immediately.

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The New York State Senate

senate Bill S7527

Sponsored By

Current Bill Status - Passed Senate

Your Voice

Actions

Votes

May 17, 2022 - floor Vote

Floor Vote: May 17, 2022

Jan 18, 2022 - Codes committee Vote

Codes Committee Vote: Jan 18, 2022

Co-Sponsors

S7527 (ACTIVE) - Details

S7527 (ACTIVE) - Summary

S7527 (ACTIVE) - Sponsor Memo

S7527 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S7527

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Sponsored By

Brad Hoylman

Current Bill Status - Passed Senate

Your Voice

Actions

Votes

May 17, 2022 - floor Vote

Floor Vote: May 17, 2022

Jan 18, 2022 - Codes committee Vote

Codes Committee Vote: Jan 18, 2022

Co-Sponsors

Jamaal T. Bailey

Alessandra Biaggi

Zellnor Myrie

Elijah Reichlin-Melnick

Julia Salazar

S7527 (ACTIVE) - Details

S7527 (ACTIVE) - Summary

S7527 (ACTIVE) - Sponsor Memo

S7527 (ACTIVE) - Bill Text download pdf

Comments