In the age of artificial intelligence (A.I.), photographs and videos have become profuse, and they had achieved a certain level of credibility in litigation for years. In the last twenty years, however, expert witnesses have begun analyzing such data to determine if it has been altered and is therefore not accurate evidence. See, e.g., Joshua Rothman, “In The Age of A.I., Is Seeing Still Believing?,” The New Yorker, Nov. 5, 2018. This article highlights how expert witnesses are assisting attorneys and courts in determining whether certain images and videos reflect the truth and how such materials should be evaluated.
In the 1990s, one attorney was impacted personally by surveillance camera footage regarding a car accident, and he “pioneered the forensic analysis of digital photographs…and gained a reputation as a miracle worker. As an expert witness in countless civil and criminal trials, he explained why a disputed digital image or video had to be real or fake.” Id. The work done by that expert involved image synthesis, which utilized computer graphics and artificial intelligence as resources. See id.At first, such work appeared very promising, and “[r]esearchers were discovering new ways to use neural networks—software systems based, loosely, on the architecture of the brain—to analyze and create images and videos. In the emerging world of ‘synthetic media,’ the work of digital-image creation…could be automated by expert systems capable of producing realism on a vast scale.” Id.
The problem with digital image creation (or synthetic media) may not have been apparent at first, but it has become evident of late. See, e.g, id.The entertainment community has been impacted, and as The New Yorker explains, “In a media environment saturated with fake news, such technology has disturbing implications. Last fall, an anonymous Redditor…released a software tool kit that allows anyone to make synthetic videos in which a neural network substitutes one person’s face for another’s, while keeping their expressions consistent.” Id.
It’s not just Hollywood that has been affected, however. Elected officials, candidates, and former leaders have been targeted as well. See, e.g., id.For example, “a paper published by a research group at the University of Washington…showed that a neural network could create believable videos in which the former President [Obama] appeared to be saying words that were really spoken by someone else.” Id.This type of alteration has been used to distort the words and actions of politicians and even members of the press. See, e.g., id.
The controversy over image synthesis is difficult to reconcile, but expert witnesses can play a key role in resolving it. See, e.g., id.While the process has the potential to be abused, it also has indisputable benefits. One instance involves a case that was decades old, but by careful work, experts were able to find what seemed to be the correct license plate for a car that was involved in a fatal collision. See id. The expert on that case “began ‘training’ a neural network to interpret…degraded images. Modern neural networks are multilayered, and each layer juggles millions of variables; tracking the flow of information through such a system is like following drops of water through a waterfall.” Id. That case has since been re-opened, and “[i]t was a paradoxical outcome typical of the world of image synthesis, in which unreal images, if they are realistic enough, can lead to the truth.” Id.
Alteration of images and videos is an advanced technology that only experts had access to at one time, but now it has become widely available to many people. See id.For attorneys, visual evidence is extremely important—it is often the most persuasive way to demonstrate a point or connect with a jury. See, e.g., id.Given the fact that digital alteration has become so widespread, consulting and testifying expert witnesses will be essential to help determine the veracity of certain exhibits and potential evidence. By retaining experts in the field, attorneys can best distinguish real evidence from doctored content and further their client’s goals.