CASE LAW ALERT
By Ray Hill
Professor Emeritus, Santa Rosa Junior College

Ruling and Issue
Retroactivity – A 2000 murder case is remanded for retrial to reevaluate the introduction of creative expression evidence (352.2 E.C.).
People v. Venable (2023) 88 Cal. App. 5th 445.

A 2023 Evidence Code statute (352.2 E.C) and a recent case decision have created a new twist in the introduction of “creative expression” as evidence in court. In this case, the introduction of a rap video posted on the video sharing platform “YouTube” in a murder prosecution.

Case Background

Evidence Code 352 permits a judge to disallow the introduction of  evidence if it is deemed too prejudicial, inflammatory, repetitive, or time-consuming for the jury to hear. 

Examples:

Exceptionally gruesome or misleading photographs may be excluded because of their potentially inflammatory nature (352 E.C.)

• The defendant was charged with possessing a machine gun. At trial, a photograph was introduced showing this weapon along with a dozen other legal guns and knives that were recovered. The photograph misled the jury by displaying weapons not relevant to the ....