Deepfake defense emergence needs ethical oversight

Thousands of audiovisual images documented the insurrectionists who stormed the United States Capitol on Jan. 6, 2021. Authorities subsequently collected more than 25,000 images of the events and filed criminal charges against some insurrectionists. Given the overwhelming audio and visual evidence implicating those involved, it should be impossible to assert a plausible defense claiming that those unmistakably depicted in the images were not present. Right? Wrong. As the recent defense in the federal criminal trial of Jan. 6th insurrectionist leader Guy Reffitt illustrated, the emergence of deepfakes has changed the landscape of plausible criminal defenses.

Reffitt, an alleged member of the anti-government movement, the Three Percenters, attended the Jan. 6 Pro-Trump rally in Washington D.C. Dressed in riot gear and carrying a firearm, Reffitt participated in the attack on the Capital. Visual images showed him at the head of the crowd advancing on the Capitol’s West Terrace that afternoon. He was later charged with multiple crimes, including bringing a gun to the insurrection and assaulting the police. And although genuine and overwhelming audiovisual evidence implicated Reffitt, his trial lawyer attempted to undermine it, telling the jury that the evidence against Reffitt was a “deepfake” – an audiovisual recording created using Artificial Intelligence technology that allows anyone with a smartphone to believably map one person’s movements and words onto an image of another person.

The “deepfake defense” presents a new challenge to our legal system’s adversarial process and truth-seeking function. An accusation may be supported by genuine audiovisual evidence. But as the public discovers the potential to be fooled by fake news and deepfakes, liars will exploit this awareness to escape accountability for their actions by denouncing authentic video and audio as a deepfake. Technology experts fear that a skeptical public has been primed to doubt the authenticity of all audiovisual evidence.

Because the norms of professional ethics require lawyers to advocate zealously, deepfakes invite lawyers to raise new objections and arguments to genuine evidence to exploit juror bias and skepticism. Thus, lawyers may plant the seeds of doubt in jurors’ minds to question the authenticity of all digital audio and visual images even where the lawyers know the evidence is genuine.

And although the law offers various methods to deal with attorney misconduct and abuses of the trial processes, it does not provide a clear or direct response to a lawyer’s reliance on the deepfake defense. Of course, courts have broad inherent power to sanction lawyers and control the conduct of trials. But judicial sanctions may not effectively deter the deepfake defense because courts have been reluctant to sanction counsel for statements, especially during oral argument. Thus, unless the deepfake defense is prohibited by a procedural rule, statute, or the rules of ethics, the courts may not engage the inherent power to sanction attorneys who use it. However, currently, no rule of procedure, ethics, or legal precedent directly or specifically addresses the presentation of the deepfake defense.

For example, procedural rules and statutes, such as the Federal Rules of Civil Procedure Rule 11, only apply to signed papers and not oral statements. A trial attorney’s effort to exploit doubts about the authenticity of audiovisual evidence may not be memorialized in a document but may materialize in closing arguments to the jury. And courts do not uniformly or regularly apply other procedural rules and mechanisms designed to deter deceptive litigation practices and to punish aggressive tactics that exceed zealous advocacy to oral argument. Moreover, seeking recourse in substantive tort law, such as defamation and fraud, will be met with litigation privilege, which immunizes counsel from liability for statements made in litigation.

Finally, even though the deepfake defense implicates the rules of professional ethics, the ABA Model Rules of Professional Conduct do not include specific rules or commentary regarding the offering or challenging audiovisual evidence such as deepfakes. ABA Model Rule 3.3 contains general prohibitions against offering evidence that the lawyer knows to be false and permits counsel to refuse to offer audiovisual evidence counsel reasonably believes is a deepfake. It also prohibits attorneys from making false statements of fact or law to a tribunal. But the ethical rules are opaque and underenforced. There is no express prohibition in the model rules limiting counsel from challenging evidence as a deepfake. Likewise, there is nothing in the ethical rules preventing a lawyer from relying on the deepfake defense. The outcomes of various attorney misconduct cases demonstrate a lack of consensus on whether and when attorneys may ethically engage in deception.

To safeguard the integrity of the legal proceedings and the profession requires clear, enforceable legal and ethical standards that govern the conduct of attorneys who may ponder employing the deepfake defense. Addressing the challenges and impact of the deepfake defense in legal proceedings will require changes to the rules of procedure, substantive law, and professional conduct. Specifically, an amendment to the rules of procedure to broaden their reach to apply to counsel’s oral representation is urged. In addition, clarifying the law governing unreasonable and vexatious trial conduct to cover the use of the deepfake defense would also be helpful. Finally, a revision to the model rules of ethics to expressly address arguments exploiting the existence of deepfake evidence would protect against the corruption of the judicial system’s truth-determining process that results from the use of the deepfake defense.

The existing rules of procedural and ethics and substantive law are insufficient to address problems brought by the deepfake defense. Policymakers, the courts, and bar regulators need to respond now as new complicated technologies like AI and deepfakes transform our society and profession.