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: Yes

Q: 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.

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