SJR102

A Joint Resolution pursuant to P.L.1960, c.52 proposing an amendment to the Rules of Evidence and designated as “J.B.’s Law.”

Whereas, As early as 2011, lyrics of rap music, as expressed in audio and music videos, have been used as a basis for indictment and prosecution of rap artists, specifically hip-hop and rap artists; and

Whereas, Edgar Jamal Gamory, whose stage name was “J.B.,” is a contemporary example of an artist who has been convicted based in part on evidence from his creative and artistic expressions, specifically music lyrics and rap videos; and

Whereas, The admission of creative or artistic expressions as evidence in a criminal proceeding in the form of musical lyrics and musical videos is unfairly prejudicial and is further contrary to the Confrontation Clause, Article I, paragraph 10 of the New Jersey Constitution; and

Whereas, Musical expression is a form of free speech protected by the First Amendment and should not be admissible into evidence or used as impeachment evidence in any criminal; now, therefore,

Be It Resolved by the Senate and General Assembly of the State of New Jersey:

1. Pursuant to section 38 of P.L.1960, c.52 (C.2A:84A-38), the Supreme Court of New Jersey may adopt the rules specified in this section in the form set out, at any time after this joint resolution has been delivered to and signed by the Governor of the State of New Jersey, by entering an order that the rules are adopted and by causing true copies of its order of adoption to be delivered to the President of the Senate, the Speaker of the General Assembly and the Governor, without again presenting the subject matter and a tentative draft of rules at a Judicial Conference.

Rule 401 is amended to read as follows:

N.J.R.E. 401. Definition of “Relevant Evidence”

"Relevant evidence" means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action. Relevant evidence shall not include evidence of a defendant's creative or artistic expression, whether original or derivative, in audio or video format, and shall not be received into evidence, or used as impeachment evidence against the defendant in a criminal proceeding. For purposes of this section, a “creative or artistic” 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.

Rule 404 is amended to read as follows:

N.J.R.E. 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes Evidence

(a) Character Evidence. Evidence of a person's character or character trait, including a trait of care or skill or lack thereof, is not admissible to prove that on a particular occasion the person acted in conformity with the character or trait except:

(1) Character of Defendant in a Criminal Proceeding. Evidence of a pertinent trait of the defendant's character offered by the defendant or by the prosecution to rebut it. Evidence of a pertinent trait of the defendant's character offered by the defendant shall not be excluded under Rule 403;

(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by a defendant in a criminal proceeding or by the prosecution to rebut it, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of Witness. Evidence of the character of a witness as provided in Rule 608.

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove a person's disposition in order to show that on a particular occasion the person acted in conformity with such disposition.

(2) Permitted Uses. This evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

(3) Evidence of a defendant's creative or artistic expression, whether original or derivative, in audio or video format, shall not be received into evidence against the defendant in a criminal proceeding. “Creative or artistic 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, dance, performance art, visual art, poetry, literature, film, and other such objects or media.

(c) Character and Character Trait in Issue. Evidence of a person's character or character trait is admissible when that character or trait is an element of a claim or defense.

Rule 801 is amended to read as follows:

N.J.R.E. 801. Definitions (a) Statement. "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. A creative or artistic expression shall not constitute a statement, whether original or duplicate, in audio or video format. A creative or artistic expression shall not be received into evidence or used as impeachment evidence against a defendant in a criminal proceeding. “Creative or artistic” 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.

(b) Declarant. "Declarant" means the person who made the statement.

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

(d) Business. A "business" includes every kind of business, institution, association, profession, occupation, and calling, whether or not conducted for profit, and also includes activities of governmental agencies.

(e) Writing. A "writing" consists of letters, words, numbers, data compilations, pictures, drawings, photographs, symbols, sounds, or combinations thereof or their equivalent, set down or recorded by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or by any other means, and preserved in a perceptible form, and their duplicates as defined by Rule 1001(d). A writing shall not constitute a creative or artistic expression, whether original or derivative, in audio or video format. A creative or artistic expression shall not be received into evidence or used as impeachment evidence against a defendant in a criminal proceeding. “Creative or artistic” 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.

(f) Public Official. A "public official" includes an official of the United States, its territories, the District of Columbia and states, as well as political subdivisions, regional and other governmental agencies thereof.

2. The rules set forth in section 1 of this joint resolution, if ordered adopted by the Supreme Court of New Jersey, shall take effect on the date set forth in the order of adoption.

3. This joint resolution shall take effect immediately upon signature thereof by the Governor. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the Clerk of the General Assembly or the Secretary of the Senate to the Chief Justice of the Supreme Court of New Jersey.

STATEMENT

This joint resolution would amend the New Jersey Rules of Evidence to provide that evidence of a defendant's creative or artistic expression, whether original or derivative, in audio or video format, is not to be received into evidence against the defendant in a criminal proceeding. Artistic expression evidence, especially when of a graphic, violent, or disturbing nature can be inflammatory and prejudicial to a defendant while having little value in establishing evidence of motive or intent. Moreover, permitting the introduction of this evidence in a criminal proceeding can have a chilling effect on an entire genre of music.

N.J.R.E.401, N.J.R.E.404(b), and N.J.R.E801(a) and (e) are substantive rules of evidence and it is the sponsor’s view that this resolution, by removing from jury consideration evidence of a defendant’s creative or artistic expression, the prosecution for a criminal offense is redirected towards more compelling evidence.

This bill is named “J.B.’s Law” to highlight a 2011 instance in which a federal appeals court acknowledged the erroneous admission into evidence of a rap video at trial on the grounds that it was prejudicial, and not probative of guilt.