Case Alert Follow Up: Retroactivity of Rulings on “Creative Expression” Relating to Racial Stereotyping

By Raymond Hill  
Professor Emeritus, Santa Rosa Junior College 

A new ruling about potential racial stereotyping in using products of “creative expression” in prosecution makes it now three district court rulings related to the 2023 law and its potential retroactivity to ongoing cases. It looks like the state Supreme Court will decide this issue. 

LEGALUPDATES.COM previously published two cases that ruled on the retroactivity of 351.2 E.C. Enacted on Jan. 1, 2023, this statute requires a judge to balance the probative value (proof) against the prejudicial or inflammatory impact of “creative expression” before admitting it as evidence at trial.  

“Creative expression” is defined as imagery such as forms, sounds, words, movements, or symbols including, music, dance, performing arts, poetry, literature, film, or other such objects or media (352.2 (c) E.C.).  

The legislative intent behind this statute was to eliminate racial stereotyping and bias in the improper consideration of propensity evidence implying guilt (1101 E.C.). 

For reference:  

3/25/23 – LU Ref. #CAB00202 – The 2DCA ruled the statute was retroactive to cases still ....