Deepfakes:
they’re
real
and
coming
to
our
courtrooms.
And
they
are
going
to
change
how
we
do
things.
But
are
our
judges
and
us
trial
lawyers
prepared?
I
earlier
authored
an
article
raising
the
issue
whether
the
mushrooming
creation
of
deepfakes
would
jeopardize
our
judicial
and
litigation
system.
My
concern
and
that
of
others
is
that
the
increased
battles
over
what
digital
evidence
is
real
and
what
is
fake
would
embroil
our
system
in
endless
time-consuming
disputes
and
battles
of
experts.
And
that
by
virtue
of
being
exposed
over
and
over
to
AI-generated
fake
photos,
audio
recordings,
and
videos,
people
—
judges
and
juries
—
would
come
to
disbelieve
any
and
all
of
it.
It’s
known
as
the
liar’s
dividend,
a
phrase
coined
by
Robert
Chesney
and
Danielle
Citron
in
a
2019
law
review
article.
Both
have
enormous
repercussions
for
litigation
and
perhaps
more
significantly,
the
courtroom.
The
reliance
on
digital
materials
in
courtrooms
both
for
real
evidence
and
as
demonstrative
material
is
pretty
standard
today.
Indeed,
it’s
probably
expected.
But
what
happens
when
all
that
evidence
is
now
questioned
and
fought
over?
At
the
very
least,
it
could
change
the
way
cases
are
tried.
The
Courts
and
Deepfakes
First,
courts
may
soon
come
to
insist
on
more
vigorous
authentication
as
a
matter
of
course.
The
proponent
of
a
photograph,
video,
or
audio
recording
must
offer
evidence
sufficient
to
support
a
finding
of
authenticity.
Typically,
this
means
the
following
questions
and
answers
of
a
witness:
Q:
Did
you
take
this
photo?A:
YesQ:
Does
it
fairly
and
accurately
depict
what
you
saw
when
you
took
it?A:
Yes
It’s
then
offered
for
admission.
There
is
almost
a
presumption
of
authenticity.
But
in
the
future,
that
may
not
be
enough
as
we
move
toward
a
spoken
or
unspoken
presumption
of
lack
of
authenticity.
This
means
that
those
offering
digital-type
evidence
will
have
to
do
much
more
to
convince
a
skeptical
judge
that
the
item
be
admitted
into
evidence.
Things
like
providing
the
underlying
meta
data,
testimony
on
how
the
image
was
created
and
“touched
up,”
requiring
a
showing
of
what
amounts
to
a
chain
of
custody
of
the
image
or
recording.
Perhaps
even
expert
testimony.
The
“sufficient
to
support”
standard
may
be
about
to
get
tougher.
Seeing
will
no
longer
be
believing;
seeing
will
require
verification.
All
of
which
is
going
to
gum
up
our
trials,
make
them
longer,
and
more
expensive.
Another
option
for
courts
may
be
the
greater
and
more
aggressive
use
of
concepts
like
those
set
out
in
Federal
Evidentiary
Rule
403.
This
Rule
allows
courts
to
exclude
evidence
the
probative
value
of
which
is
“substantially
outweighed”
by
the
risk
of
prejudice,
misleading
the
jury,
or
confusion.
This
rule
is
already
used
to
exclude
things
like
gruesome
photos
of
accident
victims.
Its
use
has
also
been
debated
in
situations
where
the
opportunity
to
use
immersive
evidence
such
as
that
which
could
be
viewed
on
a
Vision
Pro.
But
when
faced
with
digital
evidence,
the
authenticity
of
which
is
hotly
contested,
a
judge
could
very
well
conclude
that
the
risk
the
evidence
could
mislead
the
jury
into
thinking
some
is
real
when
there
is
a
good
chance
it
isn’t
(or
vice
versa).
And
that
risk
outweighs
its
probative
value.
The
result
of
course
is
less
digital
evidence
in
the
courtroom.
One
final
option
for
the
court:
just
let
the
jury
decide
if
the
digital
evidence
is
credible
and
real.
As
a
former
defense
lawyer,
I
shudder
at
the
thought
but
understand
the
logic.
If
digital
evidence
is
offered
and
I
oppose
it,
it’s
up
to
me
on
cross
examination
to
raise
doubts
about
credibility.
Of
course,
this
places
a
lot
of
responsibility
on
juries
to
understand
and
deal
with
technical
issues
but
it’s
an
easy
out
for
judges.
No
matter
which
way
courts
go,
the
risk
of
deepfakes
will
change
the
courtroom,
and
it
will
be
up
to
trial
lawyers
to
deal
with
it.
What
Does
It
Mean
for
the
Lawyer
Trial
lawyers
in
the
future
will
be
faced
with
greater
authenticity
scrutiny,
more
risk
of
exclusion
of
digital
evidence,
or
perhaps
being
forced
to
convince
a
jury
of
an
item’s
authenticity
or
lack
thereof.
All
the
while
facing
jurors
who
are
likely
to
believe
any
and
all
digital
evidence
is
not
real
and
will
therefore
disregard
it
anyway.
The
power
of
digital
evidence
then
actually
becomes
a
liability
instead
of
an
asset.
What’s
a
poor
lawyer
to
do?
First,
courtroom
lawyers
must
be
better
prepared
to
offer
stronger
proof
of
authenticity.
It
will
no
longer
be
the
standard
two
or
three
questions.
This
means
boning
up
on
deepfakes
and
how
to
combat
them.
It
means
mastering
the
technical
end
of
photos,
videos,
and
audio
recordings
and
being
able
to
explain
and
show
validity
in
simple
terms
a
jury
and
judge
can
understand.
It
means
explaining
creative
methods.
More
importantly,
it
means
offering
corroborating
proof
in
the
courtroom
of
what
the
digital
evidence
purports
to
show.
In
some
situations,
it
may
even
mean
electing
to
use
less
technology
and
digital
evidence,
not
more.
In
fact,
in
general,
varying
digital
evidence
with
more
analogue-type
evidence
every
now
and
then
is
a
good
idea
in
any
event.
It
keeps
the
jury’s
interest,
in
my
experience.
It
comes
down
to
preparation
and
understanding
of
the
risks
and
benefits
of
technology,
which
is
already
ethically
required.
Tomorrow’s
Trials:
We
Better
Be
Ready
There
can
be
little
doubt
that
authenticity
will
be
front
and
center
in
the
future.
There
will
be
some
tough
calls
that
need
to
be
made
by
judges,
juries,
and
lawyers.
It
will
mean
dealing
with
technical
issues
and
concepts
that
aren’t
clear
cut.
Tough
decisions
that
will
need
to
be
made
by
both
judges
and
juries.
As
with
most
technology,
the
key
will
be
to
understand
the
risks
of
deepfakes
and
be
ready
to
deal
with
it.
You
can’t
get
there
by
ignoring
reality.
Stephen
Embry
is
a
lawyer,
speaker,
blogger,
and
writer.
He
publishes TechLaw
Crossroads,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law.