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Deepfakes are subverting the criminal justice system


California criminal trials are becoming more complicated as issues regarding the authenticity of evidence often come into play. Technology is making it much easier for people to doctor evidence; they can produce elaborate videos and recordings using someone’s real image and voice. The prevalence of these videos known as deepfakes makes things more difficult for criminal defendants.

Practically anyone can make a fake video or recording if they have the right technology. They can even do it on a laptop or cellphone and do not need professional recording equipment. For defendants, it means that they can see fake videos used against them in court as evidence in their trial. Prosecutors may unwittingly get their hands on these deepfakes. At the same time, courts may view with suspicion any recordings that the defense tries to use for purposes of exoneration.

Fake evidence in general is undermining confidence in institutions, including the justice system. People often do not know what is real. As a result, they may question legitimate recordings. It does not help the matter that courts in the country have differed when it comes to the issue of requiring authentication of evidence. The result is a mishmash of rules across jurisdictions. While courts will eventually find ways to deal with fake evidence, they are generally a step or two behind the times.

As trials become more complicated, the need for criminal defense attorneys becomes greater. A defendant’s attorney may object if the prosecution is seeking to use questionable evidence. They might try to protect their client’s rights by filing a motion to suppress evidence. Similarly, they may argue against the prosecution’s attempt to keep out evidence that exonerates the defendant. This is a strategy that a defendant may not be able to do on their own.

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