Deepfakes on Trial: a Call to Expand the Trial Judge’s Gatekeeping Role to Protect Legal Proceedings from Technological Fakery

51 Pages Posted: 11 Feb 2022 Last revised: 15 Feb 2022

Date Written: February 10, 2022

Abstract

Picture this: You are arrested and accused of a serious crime, like carjacking, assault with a deadly weapon, or child abuse. The only evidence against you is a cellphone video showing the act of violence. To the naked eye, the perpetrator on the video is you. But you are innocent. The video is a “deepfake” – an audiovisual recording created using readily available Artificial Intelligence technology that allows anyone with a smartphone to believably map one person’s movements and words onto another person’s face. How will you prove the video is deepfake in court? And, who—the judge or the jury--gets to decide if it’s fake? The law does not provide clear answers.

But this much is certain--deepfake evidence is an emerging threat to our justice system’s truth-seeking function. Deepfakes will invade court proceedings from several directions—parties may fabricate evidence to win a civil action, governmental actors may rely on deepfakes to secure criminal convictions, or lawyers may purposely exploit juror bias and skepticism about what is real.

Currently, no evidentiary procedure explicitly governs the presentation of deepfake evidence in court. The existing legal standards governing the authentication of evidence are inadequate because the rules were developed before the advent of deepfake technology. As a result, they do not solve the urgent problems of--how to show a video is fake and how to show it isn’t. In addition, although in the last several years, legal scholarship and the popular news media have addressed certain facets of deepfakes, there has been no commentary on the procedural aspects of deepfake evidence in court. Absent from the discussion is who gets to decide whether a deepfake is authentic. This article addresses the matters that prior academic scholarship about deepfakes obscures. It is the first to propose a new rule of evidence reflecting a unique reallocation of the fact-determining responsibilities between the jury and the judge, treating the question of deepfake authenticity as one for the court to decide as part of an expanded gatekeeping function under the rules of evidence. Confronting deepfakes evidence in legal proceedings demands that courts and lawyers use imagination and creativity to navigate pitfalls of proof and manage a jury’s doubts and distrust about what is real. Your freedom may depend on how we meet these challenges.

Keywords: deepfake, evidence, criminal law, technology, judges, juries, Federal Rule of Evidence 901

Suggested Citation

Delfino, Rebecca, Deepfakes on Trial: a Call to Expand the Trial Judge’s Gatekeeping Role to Protect Legal Proceedings from Technological Fakery (February 10, 2022). Loyola Law School, Los Angeles Legal Studies Research Paper No. 2022-02, Available at SSRN: https://ssrn.com/abstract=4032094 or http://dx.doi.org/10.2139/ssrn.4032094

Rebecca Delfino (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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