Deepfakes And The Crisis Of Digital Evidence

INTRODUCTION:

“Now do I, as a judge, have to question a source of evidence that has traditionally been reliable?” Yew once remarked. “We’re in a whole new frontier.” This single question reflects an emerging fear that can be felt across the courtrooms today. For generations, photographs, videos, and audio recordings were considered as the closest to objective truth, witnesses free from any bias. Today, that certainity seems to be collapsing. When even a judge must pause to consider whether what they are seeing is true or not, it appears that the very foundation of current legal evidence is at risk of crumbling.

Artificial intelligence can now fabricate human expressions, voices, and other elements so convincingly that it becomes impossible to distinguish truth from falsehood with the precision of human eye. A single deepfake video can destroy reputation, manipulate public opinion, or wrongly influence the outcome of a trial. Deepfakes have thus emerged as one of the greatest threats to the legal evidentiary system, simultaneously eroding truth and destabilizing the very concept of proof.

WHEN TECHNOLOGY BECAME THE COURT’S MOST TRUSTED WITNESS

Even before the world had heard about artificial intelligence (“AI”), digital evidence had already transformed the legal landscape. The digital evidence and proofs not only made things easier for judges to make but also improved adjudication. Now the question arises: how did digital evidence accomplish all this? Some of its unprecedented characteristics were that digital evidence is exact, repeatable, and indifferent to emotion. For instance, CCTV footage can capture moments in time precisely for long periods, call recordings could reveal the exact words, and various electronic records preserve human conduct.

Because of these, courts have also started considering digital evidence as the most dependable and believable form of proof. This did not happen accidentally; it happened gradually over time with the progress of technology, which made it possible for an individual to maintain digital proofs. The biggest reason for this was the absence of bias. That's why it was considered an objective truth.

The misconceptions related to digital evidence only arose after the emergence of AI; it was heard that digital evidence presented in court could be faked. But it was believed that if tampering occurred, there would be clear signs, and creating fake digital material would be very technical and easily detectable.

Therefore, a strong assumption formed in the minds of the courts, that if a camera recorded it or there was an entry in a system, the incident surely happened. Deepfake technology shatters this foundational assumption. Not only does this reduce the credibility of digital evidence, but the entire logic also appears to be under threat. What was once considered the strongest witness in courtrooms, now carries the risk of becoming the most vulnerable weakness.

DEEPFAKES EXPLAINED: FROM INNOVATION TO INSTRUMENT OF DECEPTION

Before moving forward, let's understand what exactly a deepfake is? how is it made? And on which technology it is based on? Deepfakes are an advanced form of AI-based technology that uses GANs (Generative Adversarial Networks) and neural networks. Through, in this technology, a person's face can be swapped, or their voice can be cloned to sound completely real. The AI system improves the fake content so many times that the result looks or sounds entirely authentic. Today, creating deepfakes is no longer limited to experts, thanks to cheap, free, and easily available tools, almost anyone can create deepfake videos or audio files without much technical knowledge.

The most serious problem with this technology is its undetectability. It is becoming increasingly difficult for the naked eye or basic software to tell the difference between real and fake content. Consequently, deepfakes are not just an issue of misinformation, but also a threat to democracy, reputation, and justice.

Renowned and top research institutions worldwide, such as the Brookings Institution and MIT Media Lab, have also warned that unless a strong detection mechanism is developed, deepfakes have the potential to severely damage digital trust. Now, many readers might be wondering why we can't simply check all digital proofs against forensic parameters. However, checking such a large amount of evidence would be extremely time-consuming, and since AI can easily generate a vast amount of content, this approach is neither feasible nor practical.

WHEN REALITY WAS FABRICATED: GLOBAL CASE STUDIES

To assess the actual implications and effects of deepfakes, it is not sufficient to simply refer to theoretical analysis and warnings. It is essential to analyze actual cases in the courtroom where the manipulated evidence generated by AI has disrupted the legal system.

The incident took place approximately two years ago, in a UK custody case in 2023, where a woman submitted an AI-generated voice recording as evidence in court. She attempted to prove that her husband was extremely abusive and should not be granted custody of their child. The accused husband claimed the voice recording was fake. A forensic investigation revealed that the recording was indeed fake, but by then, his reputation had been severely damaged, which also had a significant psychological impact on him. More recently, Elon Musk's AI platform Grok was generating illicit images from any given image, which gives us an idea of the extent of the potential catastrophe.

Also in the Kohl v. Ellison (United States) case, where AI-generated legal submissions and fabricated references were submitted to the court in a sensitive constitutional matter, the court intervened and struck out those filings. But it did reveal an existential threat to the current legal adjudicatory mechanism.

The damage that can be caused by using deepfakes similarly to these cases is difficult to estimate; innocent people's reputations can be ruined, and their mental health can be affected. From all this, it can be inferred that deepfakes are not just a misuse of technology but have become an existential threat to the rule of law.

CONCLUSION:

Deepfake technology has completely shaken the courts' trust in digital evidence. There was a time when digital evidence was considered a fundamental pillar of justice, but now it has become merely a potential tool of deception. AI can create fabricated human expressions, voices, and other elements so convincingly that it becomes impossible to distinguish real from fake with the naked eye. Creating this does not remain technical task; many platforms now exist that generate realistic content completely free of charge, and many do not even include a watermark. Therefore, it can be used for many malicious purposes, the most dangerous of which is wasting the precious time of the hon’ble court.

If this huge challenge is not addressed in a timely manner, it will become difficult in the future to determine who is telling the truth and who is lying, because everyone will start creating their own fabricated evidence, and everything will be online in the future. This will also cause significant harm to those who have real evidence but are being viewed and treated with suspicion. We will discuss the solutions to this problem and the legal ways to deal with it in detail in our upcoming blog posts.

Amaan Ahmad, a second year BA LLB student from Jamia Millia Islamia and the Co-founder and Design head of Fairlex.