Deepfakes. Lawyers are now familiar with deepfakes and their accelerating sophistication for illegitimate means. The era where “seeing is believing” and “a picture is worth a thousand words” may be collapsing because of easily created and disseminated fake recordings, videos, audio, and photographs. The reality is that any video, audio clip, or photograph proffered as evidence can be fabricated; and, just as dangerously, damning yet genuine recordings or photographs can be dismissed by an adversary as digital forgeries. Deepfake technology requires attorneys to understand the dual role they play because of these new technologies–challenging evidence as a deepfake or defending genuine evidence against deepfake accusations. The traditional frameworks of authenticity, reliability, and trustworthiness are valuable tools in an attorney’s arsenal for addressing this growing problem.
Authentication
The time-tested rules of authentication are a lawyer’s best friend when faced with defending genuine evidence against deepfake accusations or challenging evidence as a deepfake. Courts are faced with a concept called the “liar’s dividend” - when a party exploits the idea of the existence of deepfakes by opposing or casting doubt on the authenticity of genuine evidence. See Chesney & Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Calif. L. Rev. 1753, 1785-86 (2019).
Federal Rule of Evidence 901 and its Maryland counterpart, Rule 5-901, help here because they require litigants to authenticate digital media (video, audio, photographs, etc.) by providing sufficient proof that the item is what its proponent claims it to be. These rules provide ten examples of how a proponent can establish authentication, including testimony of a witness with knowledge, comparison by an expert witness or the trier of fact, and opinion about a voice, to name a few. And section (b) of both rules clarify that these are non-exhaustive illustrations, not an exclusive list.
Since we are practicing in a world where counsel can no longer summarily expect that self-authenticating evidence will not be challenged, proponents of digital evidence should proactively bolster its admissibility. Consider using the self-authenticating methods in Federal Rules of Evidence 902 to enhance digital evidence’s indicia of reliability. Additionally Rules 902(13) & (14) of the federal rules allow proponents to use certifications to authenticate digital material. Counsel seeking to admit evidence should also be prepared to address chain-of-custody issues, even if the evidence is self-authenticated, because it is a common vulnerability for deepfake allegations. Counsel can further enhance the likelihood of admission of the challenged evidence and its indicia of reliability by providing circumstantial evidence regarding the material's origin and context. If you anticipate challenges, retaining forensic and expert witnesses early and preparing them to testify specifically on signs of AI manipulation is a good strategy. Finally, counsel must stay knowledgeable about the technology and tools used to collect and present evidence, as courts and your opponents will scrutinize digital processes and tools for potential manipulation. Collectively, these approaches strengthen the defensibility of genuine digital evidence against deepfake-related challenges.
Opponents of potentially deepfake evidence should carefully and critically review the digital content disclosed by the adverse party before trial. If the digital evidence appears questionable, engage forensic experts early to evaluate it. The same evidentiary rules that support your own evidence can be used effectively to challenge the authentication of an opponent’s suspected material.
ABA Model Rules and Maryland Attorneys Rules of Professional Conduct
Both the American Bar Association Model Rule 3.1 of the American Bar Association Model Rules and Rule 19-303.1 (MARPC) prohibit attorneys from bringing or defending a position unless there is a legitimate basis in law and fact that is not frivolous. Challenges to evidence based upon the belief that it is a deepfake will continue to be scrutinized by courts, but maybe now more than ever because of the real potential of deepfakes. Likewise, attorneys trying to admit digital evidence that they believe or suspect may be a deepfake should probably take additional steps to determine its authenticity. Regardless of whether an attorney wants to admit or challenge digital evidence, attorneys should have a good-faith basis to do so that aligns with their professional standards.
Practice Tips
Be cautious of evidence that seems too perfect to be true or too damaging, as it may have been manipulated. Deepfakes often appear as videos, audio, or images that can be easily created on an individual's phone using a free app or more sophisticated tools. Scrutinize all multimedia evidence, interview witnesses about it in advance, and consult a forensic expert if you suspect digital tampering. Many companies offer services or tools to detect deepfakes, like Reality Defender, Sensity AI, Hive, GetReal Security, Pindrop, and iProov, just to name a few. Their tools can assist with establishing or challenging authenticity. When visual deepfakes are created, the bad actor overlays or generates background text in the image. Using optical character recognition technology can expose deepfakes by detecting spatial or visual distortions or contextual incongruities. Another way to detect deepfakes is by using machine transcription, which checks for abnormal pacing, lip-sync errors, uncharacteristic vocabulary and sentence structure.
Conclusion
The integrity of evidence and our judicial system depend on individual attorneys’ ability to adapt to evolving technological challenges. The threat of deepfakes is real, but the evidentiary rules and an attorney’s professional obligations are ideal gatekeepers against the threat. As a standarad practice, attorneys should be proactively looking for deepfake markers and questioning authenticity, regardless of whether their client, their opponent, or a third party is the source of the digital evidence.
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