They may ask to use lyrics or other creative expression, but the material is not automatically admissible or automatically excluded. Evidence Code section 352.2 directs the judge to treat its value as a literally truthful account as minimal unless it is close in time to the charged crime, sufficiently similar to it, or contains nonpublic factual detail. The judge must also weigh prejudice risks, including propensity reasoning and racial bias, decide admissibility in limine outside the jury’s presence, and state the ruling and reasons on the record. (Evidence Code § 352.2)
Ask what inference the prosecution wants the jury to draw
The judge’s review concerns the particular work and the proposed use. Section 352.2 identifies contextual considerations such as whether the expression is close in time to the charged crime, resembles details of the crime, or contains details not publicly available before the work was created. These are considerations for evaluating literal-truth value, not three required elements or a guarantee that a work will be admitted if one is present.
The court must also consider whether the proffer risks inviting jurors to treat fictional or artistic material as a confession, infer criminal disposition, or rely on racial bias. The ordinary section 352 balance also concerns undue time, prejudice, confusion, and misleading the jury. (Evidence Code § 352.2; Evidence Code § 352)
Build the context around the full work
Counsel can evaluate the actual inference by comparing the full work and its creation context with the charged facts. Useful information may include who created or performed it, when it was created and released, the complete lyrics or video, the artistic persona or genre context, whether the alleged details were already public, and which passages the prosecution seeks to use. A clipped line may leave out context that changes how the material should be understood.
If relevant evidence is offered, section 352.2 directs the court to consider credible evidence about genre conventions and relevant research on racial bias, as well as rebuttal evidence. That does not mean an expert is mandatory in every case. The judge decides what evidence is relevant and the ruling depends on the particular record. (Evidence Code § 352.2)
Make the admissibility decision before the jury hears it
Section 352.2 requires the creative-expression admissibility question to be addressed in limine outside the jury under the preliminary-hearing framework in Evidence Code section 402, with the court’s reasons stated on the record. This is a decision about using creative work as evidence. If the work itself is alleged to be a criminal threat or other charged communication, whether the communication satisfies the offense’s elements is a separate question. (Evidence Code § 352.2; Evidence Code § 402)
Preserve the complete work and context lawfully available to you, and give it to counsel rather than editing or circulating excerpts. The Law Offices of David S. Chesley represents people facing serious California criminal charges. Call (800) 755-5174 to discuss the evidence and pretrial ruling.