SILENT NO MORE: HOW DEEPFAKES WILL FORCE COURTS TO RECONSIDER VIDEO ADMISSION STANDARDS.

• Author: Breen, Danielle C.

1. Introduction

   Fake news is a term deeply embedded into our everyday vocabulary. (1) The spread of disinformation online has led to a rapid change in the way that stories are consumed and viewed by the public. (2) There are even media outlets designed exclusively for spreading false news--many under the guise of well-known networks. (3) It is more important than ever before to aptly identify disinformation. (4) A large portion of the public is skeptical of previously trusted content. (5) However, even with growing awareness of disinformation, an alarmingly high percentage of people still admit to knowingly sharing false information online. (6)

   Modern technology and computer-generated imagery further complicate the ability to decipher true information. (7) Through artificial imagery known as "deepfake," it is now possible to take disinformation to the next level by creating doctored videos of events or people. (8) Deepfake creators use existing images and manipulate them to construct completely different impressions of what occurred. (9) Although some deepfakes are identifiable with the naked eye, the public's ability to recognize them is likely to decline as technological innovation enables the creation of more realistic doctored videos. (10) This new technology threatens the traditional treatment of video evidence by courts as a trustworthy representation of events. (11) The justice system views the ability of jurors to make determinations using visual evidence so highly that a District of Columbia Appeals Court held it constitutionally permissible for prosecutors to exclude blind persons from juries. (12) People like to believe what they see with their own eyes, and the prevalence of deepfake imagery makes this an incredibly dangerous assumption. (13)

   The growing use of deepfake technology will require courts to re-evaluate the typical treatment of video evidence. A large number of jurisdictions have traditionally allowed the admission of video evidence in jury trials without a witness testifying before the jury that the video is a fair and accurate representation of what occurred. The evidence is deemed reliable behind the scenes by a judge and then presented to the jury. With deepfakes causing many people to question the authenticity of seemingly reliable videos, it is urgent that this practice changes. Deepfake videos will force courts to always require a witness to testify before the jury about the accuracy and authenticity of video evidence in order to mitigate jurors' doubt about the reliability of evidence.

2. History

   1. The Pictorial Evidence Theory

      There are traditionally two different approaches to admitting video evidence in court: the pictorial evidence theory and the silent witness theory. (14) Under the pictorial evidence theory, visual evidence is only admissible when a witness can testify before the jury that the evidence is a fair and accurate representation of what occurred. (15) This theory rests on the idea that any photographic or video evidence is just a "graphic portrayal of oral testimony," and therefore must be verified as correct by a witness. (16) The witness must testify that the video accurately represents the subject discussed, but they do not need to have been present at the time it was created. (17) There is also no requirement that the witness be an expert in photography or videography. (18) The witness only needs to have personal knowledge of the subject material to reliably confirm that the events presented are authentic. (19) The classic example of the pictorial evidence theory is a medical examiner testifying before the jury during a murder trial about the nature of a victim's wound. (20)

      The pictorial evidence theory became increasingly relevant with the development of photo-editing technology such as Adobe, which gave parties the ability to easily alter evidence. (21) This theory permits a jury to hear witness testimony regarding any alterations made to a photograph or video before concluding that the image is an accurate representation of what the witness saw. (22) This allows the introduction of video evidence that may be altered for reasons deemed permissible by a judge, such as lightening the video to better show an object. (23)

   2. The Silent Witness Theory

      In contrast to the pictorial evidence theory, the silent witness theory admits visual evidence absent a qualifying witness. (24) Instead, a judge deems whether there is a sufficient foundation to admit the evidence without a witness testifying before the jury. (25) The theory was originally proposed to more easily allow X-ray images and surveillance videos into evidence. (26) The silent witness theory is a representation of the inherent trust that society places in video evidence because it demonstrates the belief that the video is a non-biased account of events. (27) Under this theory, evidence is admissible at the trial court judge's discretion upon a showing that the video was created under reliable processes and untampered with between the time it was taken and presented to the court. (28) Judges admit visual evidence under the silent witness theory as a trusted substitute for a qualifying witness's account of what happened; in other words, the process in which the evidence was obtained is deemed sufficiently reliable for admission. (29) Most jurisdictions apply the silent witness theory, showcasing the insurmountable value placed in video evidence to show what actually happened in a case. (30) This assumption of reliability can create issues in the courtroom, as case law demonstrates that even multiple Supreme Court Justices have watched the same video and concluded that different versions of events occurred. (31)

      Courts have adopted a variety of different approaches under the silent witness theory. (32) This is because judges emphasize the facts in each case vary so widely that it is difficult to apply one uniform standard to evaluate all video evidence. (33) Some courts set general guidelines in the application of the silent witness theory rather than mandatory standards. (34) other courts created a standard simply requiring verification of the chain of custody of the photographic or video evidence. (35) A few courts have outlined specific step-by-step processes that must be taken in order to verify video evidence. (36) One of the more restrictive step-by-step approaches is the seven-prong standard, adopted by Alabama courts, which lays out an enumerated procedure of verifying the creation process of a video before it can be admitted into evidence. (37) The goal of the seven-prong standard is to ensure that video evidence is properly deemed authentic by the court prior to it ever reaching the jury. (38) This practice assures that jurors evaluate video evidence in light of the circumstances of the case rather than question whether or not it is authentic. (39) The jurisdictional discrepancies regarding application of the silent witness theory demonstrate both the complexity of visual evidence and the value behind it. (40) In allowing this authentication process to occur outside of the courtroom, the court system reinforces the inherent trust built into video evidence by juries and society. (41) However, the silent witness theory has the potential for serious error because not all judges are familiar enough with modern photo and video editing technology to fully understand the processes through which evidence may be created--let alone to rightfully evaluate authenticity. (42)

   3. Deepfake Technology

      Deepfakes are currently the most advanced form of digital image manipulation, but they are certainly not the first. (43) Standard photoshop technology developed in 1987, and over the course of its growth has been put to increasingly deceptive use. (44) Modern examples include Adobe's Project VoCo, which makes doctored audio with a ten minute sample of the subject speaking so realistic that it is referred to as "Photoshop for the human voice." (45) Similar to photoshop, deepfakes can have harmful consequences on public perception, but that is not the technology's sole purpose. (46) The first use of deepfakes to alter images can actually be attributed to harmless fun on social media, such as using filters to add features like dog ears to someone's face. (47) In recent years, deepfake technology has transitioned from innocent use to more problematic purposes. (48) Technological advances creating more convincing doctored photos and videos make deepfakes even more dangerous than previous digital editing technology. (49)

      The mainstream term "deepfake" derives from a Reddit user's username who first began using the technology to create fake pornographic videos of celebrities. (50) It was this use of deepfake videos that originally captured public attention. (51) The word "deepfake" is derived from a combination of the phrases "deep learning" and "fake." (52) Deep learning refers to the process of training technology to become more intelligent by continuously feeding it information. (53) Deepfakes can create a false representation of events by superimposing a person's face on another's body or by changing the contents of what a person is saying. (54) Currently, deepfakes are largely used to create pornography, but they are also used in other avenues such as politics. (55) Examples of political deepfake videos include doctored videos of Nancy Pelosi appearing drunk at a speaking engagement, Italy's prime minster speaking in a hoarse whisper, an Indian politician speaking in a different dialect, and Barack Obama calling Donald Trump a "dipshit." (56) These examples of foreign and domestic deepfake use demonstrate the technology's ability to manipulate global public perception. (57)

      To fully grasp how deepfakes work, it is helpful to understand that a video is simply a series of still images strung together in a sequence. (58) Deepfake technology uses an intelligent algorithm to manipulate these images, otherwise...