§2. Limitation on admissibility of defendant’s creative or artistic expression
This section adds new Rule 416 to Article IV of the Federal Rules of Evidence, generally prohibiting the admissibility of evidence of a defendant's creative or artistic expression (i.e., music, dance, visual art, poetry, literature, film, or similar media), whether original or derivative. The rule permits admission of such evidence only if the government proves by clear and convincing evidence, in a hearing outside the jury's presence, that (1) the defendant intended a literal (rather than figurative or fictional) meaning for original expressions or adopted the literal meaning of derivative expressions as their own; (2) the expression refers to the specific facts of the alleged crime (in criminal cases) or complaint (in civil cases); (3) it is relevant to a disputed factual issue; and (4) it has distinct probative value not provided by other admissible evidence. If admitted, courts must issue rulings with essential findings on the record, redact the evidence to the excepted portions, and provide limiting instructions to the jury. The section also makes a conforming amendment to the table of contents for the Federal Rules of Evidence.