AI Summit_Sept. 13 2024

9/11/24, 4:57 PM

Navigating a Shifting Landscape | AAJ

deepfake, it will make such an impression on the jurors (or even the judge) that they won’t be able to get it out of their minds. We’ve suggested that under these circumstances, there should be a bit of burden shifting. If the party challenging the evidence can make a preponderance showing that it’s just as likely as not that the evidence is fake, and the proponent has made a showing that it’s just as likely as not that it’s real, then the judge shouldn’t put that evidence to the jury if the potential prejudice outweighs the probative value. The judge should make the decision by looking at the totality of the circumstances and balancing those two things. We proposed an amendment to FRE 901(b)(9) and a new FRE 901(c). Previously, we had suggested tweaking FRE 403—the rule that permits a judge to exclude evidence that is unduly prejudicial—but the threshold before FRE 403 is triggered is very high. That’s why we proposed the other changes. But at its last meeting in April, the Advisory Committee on Evidence Rules rejected our proposals and asked us to go back to the drawing board. The committee is not yet convinced that deepfakes pose a unique problem warranting a rules change. as likely as not that the evidence is fake, and the proponent has made a showing that its just as likely This website uses cookies and tracking technologies to optimize your experience.  Privacy Policy I think there’s a risk of “automation bias”: the view that it came from a machine, so it must be true. And some people block out information that is inconsistent with what they already believe. This is called “con { rmation bias.” And some people will become very cynical and begin to disbelieve all evidence that is put in front of them. They think you can’t trust any of it, so they start to make decisions based on things other than the evidence before them, which is very dangerous. And then the last risk is what’s called the “liar’s dividend,” which is basically the deepfake defense, where everything starts to get challenged because reality is plausibly deniable. And that becomes di ~ cult and expensive to argue about. Could you talk about how deepfakes might affect juries?

What do trial lawyers need to do to prepare?

Trial lawyers need to start thinking about the experts they’re going to use in cases where the veracity of the AI or potential AI evidence is likely to be disputed. And it’s not entirely clear right now what the proper credentials are for such experts, and there aren’t a lot of them out there at this moment. You are going to need someone who’s either got forensic tools or specialized training that can withstand a Daubert challenge. With jurors, I would be aware of overly cynical people who are not going to believe the evidence put before them or who will think everything is fake.

AI Roundtable Page 52

https://www.justice.org/resources/publications/trial-magazine/2024-june-navigating-a-shifting

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