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Journal of Technology Law & Policy

Document Type

Article

Abstract

While attorneys, litigants, and judges have always had to be vigilant for the attempted introduction of improperly enhanced or fabricated evidence in court proceedings, the rise of Artificial Intelligence (AI) and its subset, Generative Artificial Intelligence (GAI), has substantially increased the stakes. The task of identifying and exposing such fake or improperly enhanced AI evidence has become significantly more challenging. The current Federal Rules of Evidence and the Federal Rules of Civil and Criminal Procedure are insufficient to effectively address the coming advance of AI-generated or AI-enhanced evidence. The rules must be amended, in certain respects, to provide attorneys, litigants, and judges with the necessary tools and guardrails to handle issues arising during pretrial and trial proceedings concerning deepfakes and AI-generated or AI-enhanced evidence. This includes addressing pretrial discovery related to such AI evidence, notice requirements when a party seeks to rely on acknowledged AI-generated or AI-enhanced evidence, procedures for pretrial challenges to admission of such evidence, respective burdens of proof, trial procedures, and even jury instructions. Lawyers and litigants must become adept at discerning and challenging unacknowledged deepfakes and other improperly AI-generated or AI-enhanced evidence, while simultaneously learning to effectively utilize properly acknowledged AI evidence for potentially legitimate purposes. Judges must carefully take a gatekeeping role when it comes to AI-generated or enhanced evidence, ensuring that only legitimate, properly authenticated evidence is admitted. New rules and procedures are needed to guide judges in dealing with challenges to the admission of AI-generated or enhanced evidence during both pretrial and trial proceedings, and to ensure that jurors are not misled by fraudulent AI evidence such as deepfakes or by false claims of deepfakes. The rapid rise of AI and GAI creates unique issues and challenges in our courtrooms and legal proceedings, requiring the courts to take the necessary steps to be ready to meet these new challenges.

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