California Assembly Bill 2799

California’s Assembly Bill 2799 (AB 2799), also known as the Decriminalizing Artistic Expression Act, is more than a headline-grabbing protection for rap lyrics. It is a comprehensive reform that reshapes how courts treat all forms of creative work, music, poetry, film scripts, visual art, dance, and even digital media when prosecutors seek to use those works as evidence of guilt. Signed by Governor Gavin Newsom and effective January 1, 2023, the law places strict guardrails around the admissibility of creative expression and gives artists new tools to defend themselves.

At Kraut Law Group Criminal & DUI Lawyers, we have studied AB 2799 since its earliest drafts, trained our attorneys on its evidentiary standards, and already leveraged the statute to shield clients from unfair inferences within the criminal process. Below is a detailed, plain English guide written to the highest standards of legal accuracy and helpfulness.

Overview of California Assembly Bill 2799 (Decriminalizing Artistic Expression Act)

• Enacts Evidence Code § 352.2, a companion to the long-standing § 352 balancing test but explicitly tailored to “creative expression.”
• Requires judges to conduct a pretrial hearing outside the jury’s presence whenever a party offers artistic content as evidence, and to place detailed findings on the record.
• Declares that the probative value of creative work is “minimal” unless it was created close in time to the charged offense, bears striking similarity, or contains non-public details.
• Recognizes that undue prejudice includes the risk jurors will treat art as proof of criminal propensity or allow racial bias to seep into deliberations.

California’s Assembly Bill 2799 applies to any California court proceeding, criminal, civil, or juvenile. However, its most significant impact is in criminal trials, where prosecutors previously relied on lyrics or social media videos to fill evidentiary gaps.

Why California Legislated AB 2799

A coalition of defense lawyers, First Amendment scholars, artists’ rights groups, and racial-justice advocates documented patterns in which prosecutors used rap lyrics to portray defendants, often young Black men, as inherently violent. Empirical studies showed that the very genre label “rap” increases juror bias, even when the underlying words are identical to lyrics in other musical styles.

Lawmakers responded with California’s Assembly Bill 2799 to curb misuse of artistic speech while still allowing genuinely incriminating content under carefully defined circumstances. The statute reflects a growing recognition that performance art is not a diary; it is storytelling that often exaggerates for effect and should not be conflated with literal admissions of wrongdoing.

Key Protections the Act Provides to Artists

• Heightened Judicial Gatekeeping. Before any creative work reaches the jury, judges must articulate why its probative value outweighs the heightened prejudice recognized by the statute.
• Contextual Expert Testimony. Parties may call scholars or industry experts to explain genre conventions, metaphor, persona, and exaggeration so that courts do not misinterpret art literally.
• Bias-Mitigation Requirement. Courts must consider research on racial bias and allow rebuttal evidence, creating a record that can be scrutinized on appeal.
• Written Findings for Appellate Review. A judge’s on-the-record explanation provides reviewing courts with concrete material to assess errors, thereby fostering uniform statewide application.

Together, these safeguards result in fewer unexpected “gotcha” moments at trial and more vigorous suppression motions for the defense.

Statutory Exceptions Allowing Courts to Admit Creative Works

California’s Assembly Bill 2799 is not an absolute bar. Creative expression may still be admitted when:

• Imminent Threats. The work contains a specific, credible, and impending threat of violence.
• Direct Nexus to the Charged Conduct. The expression was created near the time of the alleged crime, mirrors its distinctive facts, or includes details not previously publicly known.
• Ongoing Criminal Scheme. Lyrics, writings, or videos help demonstrate participation in an ongoing enterprise such as trafficking, organized crime, or terrorism.
• Copyright and Intellectual-Property Claims. The statute does not shield infringement; civil plaintiffs remain free to introduce the contested work.

Because judges must still weigh § 352 factors, defense counsel should prepare targeted arguments attacking each exception the prosecution invokes.

Evidence Code § 352.2: Factors Judges Must Weigh

When balancing probative value against prejudice, the court must consider:

• Temporal Proximity. How soon before or after the charged conduct was the work created?
• Distinctive Similarity. Does the art describe the crime with unusual specificity, or is it generalized bravado typical of the genre?
• Availability of Non-Prejudicial Proof. Can the prosecution establish the same fact through conventional evidence (surveillance, forensics, eyewitnesses)?
• Risk of Racial or Cultural Bias. Would admission reinforce stereotypes or prompt jurors to equate an artistic persona with the defendant’s real-life character?
• Scholarly Context. Have experts explained metaphors, slang, and hyperbole so the court can separate fiction from fact?

These factors arm defense lawyers with a structured checklist for suppression motions and in-limine hearings.

Alignment With and Expansion of First Amendment Principles

The First Amendment already forbids government punishment of speech based on viewpoint. California’s Assembly Bill 2799 reinforces that protection by recognizing that art, by its nature, often amplifies the speaker’s persona, employs metaphor, or experiments with taboo subjects. Treating every violent lyric as a factual confession chills creativity and undermines robust public discourse.

By codifying a presumption against admissibility, California aligns state evidence law with Supreme Court guidance that speech may not be restricted merely because listeners might infer bad character. The statute complements, rather than replaces, First Amendment doctrine; it operates as a procedural shield within evidentiary law, whereas constitutional arguments provide substantive protection from government censorship.

Practical Implications for Criminal Defense Strategy

Defense teams should adapt immediately:

• Early Content Audit. Scrutinize clients’ social-media posts, music catalogs, and public performances. Flag any material the prosecution might seek to use.
• File Targeted Motions in Limine. Cite § 352.2, compile scholarly research on genre conventions, and demand an evidentiary hearing.
• Retain Qualified Experts. Musicologists, cultural-studies professors, and industry veterans can contextualize lyrics or visuals and testify about familiar tropes.
• Prepare Alternative Narratives. Emphasize that performance personas are fictional, analogous to actors portraying villains or authors writing crime novels.
• Document Prejudice for Appeal. If the judge admits the material, ensure the record captures every objection to preserve the issue.

At Kraut Law Group Criminal & DUI Lawyers, we have a team of vetted experts ready to consult, and we utilize in-house mock-jury research to measure potential jury reactions to disputed lyrics or videos.

Frequently Asked Questions About AB 2799 and Evidence LawHow Kraut Law Group Criminal & DUI Lawyers Can Defend Clients Under the New Law

Our founder, former Deputy District Attorney Michael Kraut, understands how to litigate high-profile cases where prosecutors attempt to introduce rap lyrics, storyboard sketches, or even Instagram reels as evidence. By invoking AB 2799:

• We can force pre-trial hearings, which may result in the exclusion of inflammatory lyrics unrelated to the charge.
• We can leverage cultural-studies experts to dismantle the claim that fictional storylines are autobiographical confessions.
• We can demonstrate that the prosecution has alternative proof, text messages, surveillance footage, and eyewitnesses, thus making the creative work cumulative and prejudicial.
• We can preserve constitutional objections for potential appellate review, providing an additional safety net.

Whether your art is rap, rock, poetry, or provocative performance art, our team stands ready to defend both your freedom of expression and your liberty.

Speak With a Former Senior Prosecutor Today

If you or a loved one faces charges and worries that your creative work could be twisted against you, contact our attorneys for a free, confidential consultation. We answer the phone 24/7 and bring decades of courtroom experience to both.

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