California courts are having difficulty dealing with a disturbing trend in the justice system. Fakes evidence is creating new evidentiary issues when it comes to civil and criminal trials as judges and lawyers grapple with the possibility of fake evidence making its way into court. This is undermining confidence in the legal system and putting defendants’ rights at risk.
The cause of this problem is that technology has advanced to the point where practically anyone can make a deepfake from their own home. They can take someone’s real voice and image and create an entirely fake video. This deepfake is so realistic that it can pass for real. In a trial, this can lead to a conviction.
The possibility of a deepfake can lead judges to be more strict about the requirements for authenticating recordings before they are introduced as evidence. However, this may make it more difficult for a defendant to introduce a real recording that can exonerate them at trial. The result is that there is something called the “Liar’s Dividend” that comes into play. This is when a bad actor is rewarded by pulling down the whole system with them. Even in California alone, different courts have taken varying positions on whether recordings needed to be authenticated before they were introduced. Courts need to find a consistent way of dealing with deepfakes at trial.
This is why having a criminal defense attorney becomes more of a must at trial. A defendant alone would not know that they can object to evidence and how to do so. The attorney could scrutinize every piece of proposed evidence and file a motion to exclude the evidence from the trial as it is necessary. This may keep their client from being wrongfully convicted on the basis of false evidence.
