Mary D. Fan (University of Washington School of Law) has posted AI-Enhanced Evidence (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
Technological transformations in how we live our lives through the lenses of cell phone cameras, surveillance videos, and other multimedia are producing vast volumes of evidence that can be easily digitally enhanced. Courts have long admitted technologically enhanced evidence under flexible rules on authentication that pose a low bar to getting before a jury. In an era of concern over artificial intelligence (AI), however, potential judicial resistance and reform proposals are emerging, spurred by concerns over how generative AI can create deepfakes or misleadingly alter evidence. The problem with piecemeal approaches that ratchet up barriers to enhanced evidence is that they may come at the expense of parties who are least able to bear the cost and undermine the right to present a defense.
This article analyzes how to address the challenges of AI-enhanced evidence through the theoretical and pragmatic lenses of inequality of arms and access to justice. We ignore the impact of changes to the admissibility of key forms of proof, such as audiovisual evidence, on parties lacking resources at the peril of exacerbating long-burning challenges. The requirements to introduce AI-enhanced evidence can either alleviate or aggravate the inequality in arms between parties. The article offers proposals for improving notice, disclosure, and fair context for AI-enhanced evidence to safeguard reliability without further exacerbating the inequality of arms and access to justice. The article also turns to judicial standing orders as a strategy to enact reforms without having to wait years or even decades for evidence rules changes.
Highly recommended.
