Beyond A Reasonable Doubt? Audiovisual Evidence, AI Manipulation, Deepfakes, and the Law

Abstract

THE CAPTURE is a mystery thriller series, that completed its second season on Peacock and BBC One. The British television drama revolves around the alteration of direct audiovisual evidence on the command of a special unit that believes there is enough circumstantial evidence to either convict or acquit an individual of a felony. Based on the plot of the television series, this paper explores the potential for a variety of AI-enabled applications to be used in the course of criminal proceedings. The implications of evidence tampering are considered through AI manipulation toward the realization that deepfake evidence may well be admitted in court dependent on the human decision-maker. Will the future demand the interpolation of visual evidence for high profile criminal cases, and what does the existence of Generative AI and deepfakes mean for the forensic analysis of audiovisual evidence? After contemplating the socio-technical plausibility of the central premise of THE CAPTURE, this paper then turns to its legal implications. Drawing on examples from U.S. and Australian legal frameworks, the paper considers the consequences of AI-corrected, augmented or generated audiovisual evidence on three facets of natural justice: (1) the presumption of innocence; (2) the fair trial; and (3) lawyers’ ethical duties of competence and to the administration of justice. The key takeaways of the paper are that: (1) deepfake evidence will continue to proliferate; (2) that the law will need to address both the substantive and procedural impacts of such evidence, and (3) that the legal profession must continue to educate its lawyers and practitioners, and associated stakeholders, of the nature, uses and risks posed by deepfake audiovisual artefacts to maintain public trust in the legal system.