PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
AI in the Courtroom : A Gathering Storm ?
PATRICK QUINLAN
Eureka !
In September , our Professionalism Committee partnered with the Technology Committee for a seminar entitled “ Navigating the Intersection of Professionalism and AI .” The seminar included real-life demonstrations of what generative AI can do . Toward the end , Technology Committee Chair Jeffrey Haut played a sound recording of him reading a newspaper article . It turned out that the “ recording ” was an AI-generated sound file , created from a very brief voice exemplar . That was mind-blowing enough . Then he hit a button , and we could now hear him reading the same article … in Spanish . Jeff does not speak Spanish .
This was a Eureka moment for me as a trial lawyer . I had watched some Tom Cruise deepfake videos , heard the AI-created Drake song , and seen the Kate Middleton family photoshop . But this recording , produced so quickly and sounding so real , made me think about -- and worry about -- the courtroom . I have always advocated for the use of audiovisual evidence in trial , invoking such phrases as “ seeing is believing ,” “ show and tell ,” and “ a picture is worth a thousand words .” But what is any of it worth in the Age of Generative Artificial Intelligence and ChatGPT ? What happens to our jury trial system if we can no longer trust our own eyes and ears ?
Authentication
I am certainly not the only person thinking about the risks posed by deepfakes and other manipulated trial evidence . The increasingly low cost and high quality of deepfakes has been labeled by former U . S . District Judge Paul Grimm as “ the perfect evidentiary storm ,” while Professor Maura Grossman prefers “ tsunami .” Much of the discussion in the legal community has focused on changing the authentication requirements for the admission of digital audiovisual evidence . Currently , authentication is a relatively low threshold that requires a prima facie showing that the proffered evidence is authentic , at which point the evidence is admitted and the jury determines the weight to give it .
On November 8 , the Advisory Committee on [ Federal ] Evidence Rules met to discuss possible changes . The written agenda for this committee meeting , which is publicly available , contains a thorough examination of the problem and several proposed solutions . They include : requiring the proponent of digital audiovisual evidence to submit an Affidavit of Forensic Analysis from a qualified expert ; requiring some less formal type of corroboration from the proponent ; mandating a pretrial hearing if the opponent produces some proof of possible tampering ; and empowering the trial court to determine whether audiovisual evidence is authentic and to instruct the jury accordingly .
Ethics and Professionalism
But far less attention has been paid to the ethics and professionalism challenges for trial lawyers operating in this Brave New World . Before we are advocates in the courtroom , trial lawyers act as judges in the office , evaluating the cases that might eventually be taken to trial . When a client , witness , or investigator brings us a piece of potential evidence , we must decide whether , and to what extent , it supports a claim or defense . As a threshold matter , we need to acquire a basic understanding of what deepfakes are , how they are created , and how they might be detected . The Comments to Rule 4-1.1 of the Rules Regulating
PBCBA BAR BULLETIN 16
The Florida Bar , Rules of Professional Conduct , which explain that our duty of competence includes an obligation to learn “ the benefits and risks associated with the use of technology ,” was recently amended by the Florida Supreme Court to add the phrase “ including generative artificial intelligence .”
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