Deepfake Evidence and Its Authenticity in US Criminal Trials

This article examines discussions on deepfake evidence in the United States and derives implications for Korean legal system. In the U.S., the discussions on deepfake evidence have largely converged on the issue of authenticity. Under the current Federal Rules of Evidence, a trial court determines whether the proponent of the evidence has presented sufficient evidence to satisfy a reasonable jury that the evidence is what the proponent claims it is. If such prima facie proof is established, the court admits the evidence, leaving the jury to make the final determination of its authenticity. There is no consensus on whether the current Federal Rules of Evidence reveal limitations in addressing the emergence and proliferation of deepfake evidence, nor on how, if so, the current rules should be amended. The followings are potential amendments to the current Federal Rules of Evidence to address deepfake evidence: i) strengthening the standard for establishing the authenticity of images, videos, and recordings submitted as evidence beyond current requirements in order to counter the potential destructive power of deepfakes; ii) strengthening the court's gatekeeping function by having the court make the final determination on the authenticity of evidence, iii) structuring the evidentiary hearing procedure such that if a party challenging the authenticity of evidence first proves that the likelihood of the evidence being fabricated or altered is greater than the likelihood that it is not, the party submitting the evidence must then prove that the evidentiary value of the evidence outweighs the prejudicial effect. It is foreseeable that cases involving the submission of deepfake evidence or the raising of deepfake defenses would occur and increase in Korea as well. Nevertheless, Korean Criminal Procedure Act does no explicitly require the authenticity of evidence in general. The task of codifying authenticity as a requirement for admissibility is now an urgent matter that can no longer be postponed. Moreover, just as deepfake evidence is admitted as genuine evidence, the mere possibility of deepfake existence poses a significant threat to the discovery of substantive truth if genuine evidence is deemed to have been manipulated or altered. Particularly in citizen participation trials, the ‘deepfake defense’—which seeks to exploit jurors' skepticism toward genuine evidence due to the possibility of deepfakes—must be appropriately controlled.