Artificial Intelligence

AI, Deepfakes, And Litigation: It's Not Always What It Seems

Determining the admissibility of videos created using AI tools presents a challenge even for the most technology-adept judges, of which there are relatively few.

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artificial-intelligence-4389372_1280A willingness to adapt to the changing times is essential in today’s rapidly evolving technology-driven environment. This is all the more important as artificial intelligence (AI ) advances occur at an exponential rate, forcing our courts into uncharted territory rife with AI-altered evidence like deepfake videos.

For example, in a recent case in the state of Washington, a King County Superior Court judge ruled on the admissibility of AI-enhanced video in a triple murder prosecution. The defense sought to enter into evidence a cellphone video that had been enhanced using AI technology.

Judge Leroy McCullough expressed concern about the lack of transparency regarding the AI editing tool’s algorithms before precluding the admission of the altered video. He determined that the “admission of this AI-enhanced evidence would lead to a confusion of the issues and a muddling of eyewitness testimony, and could lead to a time-consuming trial within a trial about the non-peer-reviewable process used by the AI mode.”

That case is but one example of the emerging dilemma facing our trial courts. Determining the admissibility of videos created using AI tools presents a challenge even for the most technology-adept judges, of which there are relatively few. Grappling with these issues has been all the more problematic in the absence of existing guidance or updated evidentiary rules. Fortunately, help is on the way in the form of ethics guidance and proposed evidentiary rule amendments.

In a recent report issued by the New York State Bar Association’s Task Force on Artificial Intelligence on April 6, the issue of AI-created evidence and current efforts to address it were discussed. The lengthy 91-page “Report and Recommendations of the New York State Bar Association Task Force on Artificial Intelligence,” addressed a wide range of issues, including: 1) the evolution of AI and generative AI, 2) its risks and benefits, 3) how it is impacting society and the practice of law, and 4) ethics guidelines and recommendations for lawyers who use these tools.

One area of focus was on the impact of AI-created deepfake evidence on trials. The task force acknowledged the challenge presented by synthetic evidence, explaining that “(d)eciding issues of relevance, reliability, admissibility and authenticity may still not prevent deepfake evidence from being presented in court and to a jury.”

According to the task force, the threat of AI-created deepfake evidence is significant and may impact the administration of justice in ways never before seen. As generative AI tools advance, their output is increasingly sophisticated and deceptive, making it incredibly difficult for triers of fact to “determine truth from lies as they confront deepfakes.” Efforts are underway on both a national and state level to address these concerns.

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First, the Advisory Committee for the Federal Rules of Evidence is considering a proposal by former U.S. District Judge Paul Grimm and Dr. Maura R. Grossman of the University of Waterloo. Their suggestion is to revise the  Rule 901(b)(9) standard for admissible evidence from “accurate” to “reliable.”

The new rule would read as follows (additions in bold):

(A) evidence describing it and showing that it produces an accurate a valid and reliable result; and
  (B) if the proponent concedes that the item was generated by artificial intelligence, additional evidence that:
      (i) describes the software or program that was used; and
      (ii) shows that it produced valid and reliable results in this instance.

The advisory committee is also recommending the addition of a new rule, 901(c)  to address the threat posed by deepfakes:

901(c) Potentially Fabricated or Altered Electronic Evidence. If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that it is more likely than not either fabricated, or altered in whole or in part, the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence.

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Similarly, in New York,  amendments to the Criminal Procedure Law and CPLR have been proposed by New York State Assemblyman Clyde Vanel, who has introduced bill A 8110, which amends the Criminal Procedure Law and the Civil Practice Law and Rules regarding the admissibility of evidence created or processed by artificial intelligence.

He suggests distinguishing between evidence “created” by AI when it produces new information from existing information and evidence “processed” by AI when it produces a conclusion based on existing information.

He posits that evidence “created” by AI would not be admissible absent independent evidence that “establishes the reliability and accuracy of the AI used to create the evidence.” Evidence “processed” by AI would require that the reliability and accuracy of the AI used be established prior to admission of the AI output into evidence.

Legislative changes aside, there are other ways to adapt to the changes wrought by AI. Now, more than ever, technology competence requires embracing and learning about this rapidly advancing technology and its impact on the practice of law at all levels of the profession, from lawyers and law students to judges and regulators. This includes understanding how existing laws and regulations apply, and whether new ones are needed to address emerging issues that have the potential to reduce the effectiveness of the judicial process.

The evolving landscape of AI presents both opportunities and challenges for the legal system. While AI-powered tools can enhance efficiency and analysis, AI-created evidence like deepfakes poses a significant threat to the truth-finding process.

The efforts underway, from proposed rule changes to increased education, demonstrate a proactive approach to addressing these concerns. As AI continues to advance, a multipronged strategy that combines legal reforms, technological literacy within the legal profession, and a commitment to continuous learning is needed to ensure a fair and just legal system in the age of artificial intelligence.

Nicole Black is a Rochester, New York attorney and Director of Business and Community Relations at MyCase, web-based law practice management software. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at niki.black@mycase.com.

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