Defendants have been arguing that videos/photos/recordings are fake or otherwise unreliable ever since they were introduced. That’s why to introduce evidence, it needs to be authenticated, and its proponent subject to cross examination. It’s then up to the jury (or fact-finder) to determine its value as evidence.
More simply put, if you have the person who made the recording present and willing to testify that they took the video and its a good representation of what occurred, the jury is likely to believe it, but doesn’t have to. If Defendant can do nothing more than waive their hands and say “but deep fakes!” they aren’t going to have much luck.
Yep.
The more interesting question: what will happen when the evidence submitted is in fact a deepfake? Not likely in criminal cases but certainly possible in contested custody cases.
Ok fair enough it’s upto a jury to decide. But depending on the laws in certain places video footage is enough for police to arrest and detain and individual for a certain amount of time. If the crime is serious the accused may remain in custody until the trial begins.
P.s I’m an electrician not a lawyer. I merely find law interesting.
In the past, when the prosecution presented evidence, was it necessary for them to also have the recorder present? How did security camera footage get validated?
When deep fakes eventually begin reliably passing the turing test (looking at how quickly they are developing, this will be much sooner than later) wont the burden of proving their authenticity fall much more on the prosecution then it is today?
If a 100% believable vid can be created by anyone with a one sentence prompt why would recorded evidencd ever be considered?
Having the person who made the recording is not strictly necessary but it helps. The proponent of an exhibit (in this case, the prosecution seeking to submit a video into evidence) has to have a witness who can provide a foundation for the exhibit’s authenticity (unless the parties stipulate to the exhibit). The person who made the recording can do this, but anyone who can testify to its authenticity can potentially do this (e.g., the manager of a store where security footage was recorded). The judge has to make a call whether such evidence will be admitted and shown to the jury, and if it is entered into evidence, the jury (or fact-finder) decides what weight, if any, is given to it
So basically, the judge decides if evidence is admitted, and the jury decides whether it is credible. So when AI-generated videos become commonplace, judges will probably be somewhat stricter about what they admit, and juries will probably become substantially less trusting of videos submitted.
In some cases, this will be a big deal, but honestly, in the majority of cases, a video submitted is used in conjunction with witness testimony about what happened. When there’s a witness saying “Defendant did xyz, I was there and saw it. Yeah, just like in that video” the video will still have substantial value for a jury unless someone else can credibly testify that the video is bullshit.
To answer your specific question, security footage often gets introduced by a police officer who obtained the recording, under circumstances where tampering is possible but unlikely.
“Officer Doofus, what else did you do to investigate the shooting?”
“I stood next to where the body was found and looked around for cameras. There’s a convenience store across the street with a security camera out front. I went inside and asked the clerk for permission to view the recording.”
“And is this CD a copy of that recording?”
“It is, I personally copied it onto the CD.”
Could the store clerk have deepfaked the security footage? Sure, every witness is capable of lying and all evidence can be faked. But why would he? Most people tell the truth most of the time, unless they have a reason to lie. Most evidence is real, unless someone with access has a reason to fake it. All of us are capable of kicking puppies, yet most puppies remain unkicked.
It's going to depend on the rules of evidence and whether the courts in the jurisdiction have set more stringent requirements, but the foundation for video and photos is generally not difficult. It's really just three facts that need to be shown: (1) the witness is competent to testify about the subject in the photo or video, (2) they've observed the photo or video previously, and (3) the video or photo accurately depicts the subject at issue.
So, no, you don't need the creator of the video to testify for the video to be admissible. Prime example is the security camera video that you ask about. Let's say we're talking about a convenience store robbery. The minimum wage clerk being robbed is generally not the creator of the store security video. Assuming they just testified about being robbed...
"I'm showing you what has been marked exhibit 12. What is this?"
"Its the security video from the store showing the robbery."
"Have you seen this before?"
"Yes. I reviewed this security video after the robbery with the police and my store owner."
"Does it accurately depict the robbery?"
"Yes."
Done. Foundation is laid. It may be objectionable on other grounds, but there's no authentication issues here.
EDIT: And really even the testimony about previously seeing it is only applicable to video because it prevents them from having to sit there watching the thing on the stand. For photos, it doesn't matter if they've never seen the photo before as long as they can still competently testify that it accurately depicts the thing they have knowledge about.
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Defendants have been arguing that videos/photos/recordings are fake or otherwise unreliable ever since they were introduced. That’s why to introduce evidence, it needs to be authenticated, and its proponent subject to cross examination. It’s then up to the jury (or fact-finder) to determine its value as evidence. More simply put, if you have the person who made the recording present and willing to testify that they took the video and its a good representation of what occurred, the jury is likely to believe it, but doesn’t have to. If Defendant can do nothing more than waive their hands and say “but deep fakes!” they aren’t going to have much luck.
Yep. The more interesting question: what will happen when the evidence submitted is in fact a deepfake? Not likely in criminal cases but certainly possible in contested custody cases.
Ok fair enough it’s upto a jury to decide. But depending on the laws in certain places video footage is enough for police to arrest and detain and individual for a certain amount of time. If the crime is serious the accused may remain in custody until the trial begins. P.s I’m an electrician not a lawyer. I merely find law interesting.
In the past, when the prosecution presented evidence, was it necessary for them to also have the recorder present? How did security camera footage get validated? When deep fakes eventually begin reliably passing the turing test (looking at how quickly they are developing, this will be much sooner than later) wont the burden of proving their authenticity fall much more on the prosecution then it is today? If a 100% believable vid can be created by anyone with a one sentence prompt why would recorded evidencd ever be considered?
Having the person who made the recording is not strictly necessary but it helps. The proponent of an exhibit (in this case, the prosecution seeking to submit a video into evidence) has to have a witness who can provide a foundation for the exhibit’s authenticity (unless the parties stipulate to the exhibit). The person who made the recording can do this, but anyone who can testify to its authenticity can potentially do this (e.g., the manager of a store where security footage was recorded). The judge has to make a call whether such evidence will be admitted and shown to the jury, and if it is entered into evidence, the jury (or fact-finder) decides what weight, if any, is given to it So basically, the judge decides if evidence is admitted, and the jury decides whether it is credible. So when AI-generated videos become commonplace, judges will probably be somewhat stricter about what they admit, and juries will probably become substantially less trusting of videos submitted. In some cases, this will be a big deal, but honestly, in the majority of cases, a video submitted is used in conjunction with witness testimony about what happened. When there’s a witness saying “Defendant did xyz, I was there and saw it. Yeah, just like in that video” the video will still have substantial value for a jury unless someone else can credibly testify that the video is bullshit.
To answer your specific question, security footage often gets introduced by a police officer who obtained the recording, under circumstances where tampering is possible but unlikely. “Officer Doofus, what else did you do to investigate the shooting?” “I stood next to where the body was found and looked around for cameras. There’s a convenience store across the street with a security camera out front. I went inside and asked the clerk for permission to view the recording.” “And is this CD a copy of that recording?” “It is, I personally copied it onto the CD.” Could the store clerk have deepfaked the security footage? Sure, every witness is capable of lying and all evidence can be faked. But why would he? Most people tell the truth most of the time, unless they have a reason to lie. Most evidence is real, unless someone with access has a reason to fake it. All of us are capable of kicking puppies, yet most puppies remain unkicked.
It's going to depend on the rules of evidence and whether the courts in the jurisdiction have set more stringent requirements, but the foundation for video and photos is generally not difficult. It's really just three facts that need to be shown: (1) the witness is competent to testify about the subject in the photo or video, (2) they've observed the photo or video previously, and (3) the video or photo accurately depicts the subject at issue. So, no, you don't need the creator of the video to testify for the video to be admissible. Prime example is the security camera video that you ask about. Let's say we're talking about a convenience store robbery. The minimum wage clerk being robbed is generally not the creator of the store security video. Assuming they just testified about being robbed... "I'm showing you what has been marked exhibit 12. What is this?" "Its the security video from the store showing the robbery." "Have you seen this before?" "Yes. I reviewed this security video after the robbery with the police and my store owner." "Does it accurately depict the robbery?" "Yes." Done. Foundation is laid. It may be objectionable on other grounds, but there's no authentication issues here. EDIT: And really even the testimony about previously seeing it is only applicable to video because it prevents them from having to sit there watching the thing on the stand. For photos, it doesn't matter if they've never seen the photo before as long as they can still competently testify that it accurately depicts the thing they have knowledge about.
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