Focus on Ethics & Civility

Publication year2023
CitationVol. 36 No. 4 Pg. 47
Focus on Ethics & Civility
Vol. 36 No. 4 Pg. 47
Utah Bar Journal
August, 2023

July, 2023

Truth by Keith A. Call

Do you know what a "deepfake" is? If not, you need to learn.

Deepfake is a type of artificial intelligence that can be used to make images, audio, and video of fake events. Technology has developed to a point where an individual's appearance, voice, movements, and mannerisms can all be convincingly replicated by computer, making it very difficult to separate truth from fiction.

Deepfakes can be whimsical and fun, but they can also be dangerous. For example, according to the Wall Street Journal, in 2022 Russia released a deepfake of Ukrainian President Volodymyr Zelensky calling on Ukrainians to surrender. Daniel Byman et al., The Deepfake Dangers Ahead, Wall Street Journal (Feb. 23, 2023, 9:58 AM), articles/the2deepfake-dangers-ahead-b08e4ecf.

This freaks me out, especially when I contemplate the 2024 campaign and election season. It feels certain that we will see deepfakes of our presidential candidates created by people who would love to see our democracy fail. Such deepfakes will be double trouble because "[a] climate of pervasive suspicion will allow politicians and their supporters to dismiss anything negative that is reported about them as fake or exaggerated." Id. In other words, we will hear people argue that deepfakes (or is it really real?) are fake. I get dizzy thinking about the puzzling problem of identifying elusive truth.

This has caused me to further ponder the role of lawyers in discovering and advocating truth. Without meaning to diminish the critical role of mothers, fathers, and soldiers in any way, it may be that the ultimate success or failure of our democracy rests on the shoulders of lawyers. Perhaps I'm overthinking my own importance, but that is the kind of sanctity we should attach to our profession every day when we go to work.

It feels weird to affirmatively say it, but lawyers, especially we litigators, have a strange relationship with the truth. I can already see those words in an opposing brief, but it's true for all litigators. We don't typically advocate for sterile "truth," because who is to say what the truth is? We advocate for our clients, trusting in the adversary system - especially juries and judges - to separate truth from fiction.

Consider this:

Lawyers must be honest, but they don't have to be truthful. Honesty and truthfulness are not the...

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