STATE OF NEW YORK
        ________________________________________________________________________

                                          1738

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 13, 2023
                                       ___________

        Introduced  by Sens. HOYLMAN-SIGAL, BAILEY, MYRIE, SALAZAR -- read twice
          and ordered printed, and when printed to be committed 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:

     1    Section  1.  The  criminal  procedure  law  is amended by adding a new
     2  section 60.77 to read as follows:
     3  § 60.77 Rules of evidence;  admissibility  of  evidence  of  defendant's
     4            creative expression.
     5    1.  Evidence of a defendant's creative or artistic expression, whether
     6  original or derivative, may not be received into evidence  against  such
     7  defendant in a criminal proceeding unless such evidence is determined by
     8  the  court to be relevant and admissible, after an offer of proof by the
     9  proponent of such evidence outside the hearing  of  the  jury,  or  such
    10  hearing  as the court may require, and an on-the-record statement by the
    11  court of the findings of fact essential to its determination.
    12    2. In order to overcome the presumption of inadmissibility of evidence
    13  of defendant's creative expression, the proffering party  must  affirma-
    14  tively prove by clear and convincing evidence:
    15    (a)  literal,  rather than figurative or fictional, meaning and, where
    16  the work is derivative, that the defendant intended to adopt the literal
    17  meaning of the work as the defendant's own thought or statement;
    18    (b) a strong factual nexus indicating  that  the  creative  expression
    19  refers to the specific facts of the crime alleged;
    20    (c) relevance to an issue of fact that is disputed; and
    21    (d)   distinct  probative  value  not  provided  by  other  admissible
    22  evidence.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01703-01-3
        S. 1738                             2

     1    3. Where the court admits creative expression  as  criminal  evidence,
     2  the  court  has  a  duty  to  apply careful redactions, provide limiting
     3  instructions, and consider the least prejudicial means of presenting the
     4  creative expression to the fact-finder.
     5    § 2. Section 1.20 of the criminal procedure law is amended by adding a
     6  new subdivision 46 to read as follows:
     7    46.  "Creative  expression"  means  the  expression  or application of
     8  creativity or imagination in the production  or  arrangement  of  forms,
     9  sounds, words, movements or symbols, including but not limited to music,
    10  dance,  performance  art, visual art, poetry, literature, film and other
    11  such objects or media.
    12    § 3. This act shall take effect immediately.