The Deepfake Defense—Exploring the Limits of the Law and Ethical Norms in Protecting Legal Proceedings from Lying Lawyers
Forthcoming in Volume 84 Ohio State Law Journal
45 Pages Posted: 13 Feb 2023 Last revised: 20 Mar 2023
Date Written: February 12, 2023
Thousands of audiovisual images documented the insurrectionists who stormed the United States Capitol on January 6, 2021. Authorities subsequently collected those images and charged some for their criminal conduct. Given the overwhelming audiovisual evidence implicating the insurrectionists, it should be impossible to assert a plausible defense claiming that those unmistakably depicted in the images were not present. Right? Wrong. As the defense in the federal criminal trial of January 6th insurrectionist leader Guy Reffitt illustrated, the emergence of “deepfakes” has changed the landscape of plausible defenses to crimes. Reffitt led the attack on the Capital. Videos and other visual images showed him at the head of the crowd advancing on the Capitol’s West Terrace. He was arrested and charged with multiple crimes. And although the evidence, including audiovisual images, against Reffitt, was clear and overwhelming, his lawyer undermined it, arguing to the jury that the evidence against Reffitt was a “deepfake” – an audiovisual recording created using Artificial Intelligence technology that allows anyone with a smartphone to believably map one person’s movements and words onto the image of another person. Unfortunately, the law does not provide a clear response to Reffitt’s lawyer’s reliance on deepfakes as a defense.
But this much is clear—the “deepfake defense” is a new challenge to our legal system’s adversarial process and truth-seeking function. Because the norms of professional ethics require lawyers to advocate zealously, deepfakes invite lawyers to raise objections and arguments to evidence to exploit juror bias and skepticism about what is real. Thus, lawyers may plant the seeds of doubt in jurors’ minds to question the authenticity of all digital audio and visual images, even those counsel knows to be genuine.
Currently, no rule of procedure, ethics, or legal precedent directly addresses the presentation of the “deepfake defense” in court. The existing standards provide scant guidance because they were developed before the advent of deepfake technology. As a result, they do not solve the concern of how to deter lawyers from exploiting it. Although in the last several years, legal scholarship and the popular news media have addressed certain facets of deepfakes, there has been no in-depth commentary on the “deepfake defense.” This article is the first to explore the deepfake defense, locating it within the historical and current framework of lawyers’ efforts to fabricate evidence and the laws and the practice norms that exist to curb that conduct. It proposes a reconsideration of the ethical rules governing candor, fairness, and the limits of zealous advocacy and urges a re-examination of the court’s role in sanctioning such conduct. Thus, this article offers novel proposals to guide the way forward for lawyers and courts as they traverse this new technological landscape.
Keywords: Deepfakes, ethical rules, procedural rules, Lawyer deception, lying, deepfake defense, liars dividend
JEL Classification: K41
Suggested Citation: Suggested Citation