The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    127
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by  M.  of  A. CRUZ, JACKSON, DILAN, BURGOS -- 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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01703-01-3

 A. 127                              2
 
   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.
   § 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.