Deepfakes threaten criminal trials

The integrity of the Texas criminal justice system is under attack from the increasing prevalence of fake and doctored evidence. It has become remarkably easy for anyone with a cellphone and a laptop to create remarkably accurate deepfakes. When these find their way into a court proceeding, it can cause serious problems for the process and for defendants.

The problem is that there is no unified standard in court for the authentication of this evidence. Some courts even hold that no authentication is necessary. Prosecutors themselves can be fooled by deepfakes since they can be very realistic. One with advanced technology could make a virtually flawless recording that uses someone’s real voice and image. There is a real possibility that a defendant can be convicted on the basis of fake evidence.

At the same time, a court may not admit an exculpatory recording that defendants are trying to introduce as evidence. The judge and jury may be suspicious of a recording that is real due to the possibility that it can be faked. Courts are struggling to contain the damage that deepfakes have wreaked on the justice system because the confidence in the system has been undermined. This is what is known as the “Liar’s Dividend,” which is the reward that bad actors receive because they have sown widespread suspicion and chaos in an institution.

The possibility of questionable evidence raises the stakes for criminal defendants in their trial. This is why they need a criminal defense attorney more than ever to help them throughout the process. When it comes to evidence, the attorney can scrutinize everything that prosecutors are trying to introduce into court. They may object if a video seems suspicious in an attempt to have the judge suppress the evidence and keep it out of court.