For generations, courts have relied on the assumption that photographs and video recordings represent reliable evidence. While such evidence could be manipulated, doing so usually required specialised skills and left detectable traces.

That assumption is rapidly eroding.

Advances in digital editing tools now allow highly realistic fabricated videos — known as deepfakes — to be created with relative ease. These manipulated recordings can convincingly show individuals saying or doing things that never occurred.

For the judiciary, the implications are significant. Courts are increasingly being asked to evaluate digital evidence whose authenticity may be uncertain.

The Emerging “Liar’s Dividend”

Legal scholars have identified what they call the “liar’s dividend.” As deepfake technology becomes more widely known, individuals accused of wrongdoing may claim that genuine video evidence is fabricated.

Even authentic recordings may be dismissed as fake, potentially undermining the probative value of visual evidence in court proceedings.

This creates a new evidentiary problem. Courts must now consider not only whether digital evidence is genuine, but also how easily it could have been manipulated.

Challenges for Evidence Law

Traditional rules of evidence require that digital material be authenticated before it is admitted in court. But authentication may become more complicated when technology allows convincing alterations.

Courts may need to rely increasingly on:

Digital forensics experts
Metadata analysis
Chain-of-custody verification
Independent technical verification of recordings

These processes already exist, but deepfake technology may increase their importance in litigation.

Implications for Judges

For judges, the challenge is not simply technological — it is procedural.

Courts must determine:

What level of authentication is required for digital recordings
When expert testimony is necessary
How juries should be instructed when digital evidence may be manipulated

Some legal scholars argue that evidentiary rules may eventually need to evolve to address the risks posed by synthetic media.

At the same time, courts must balance caution with practicality. Digital recordings remain among the most powerful forms of evidence available.

A Changing Evidentiary Landscape

The rise of deepfake technology does not mean video evidence will disappear from courtrooms. But it does mean judges may increasingly encounter disputes about authenticity and digital manipulation.

As technology evolves, the judiciary will likely play a central role in shaping how legal systems adapt to these new evidentiary challenges.

In many ways, this is not entirely new. Courts have always had to adapt to technological change — from photographs to audio recordings to DNA evidence.

Deepfakes simply represent the next chapter in that ongoing evolution.

Sources

Chesney & Citron – Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3213954

Harvard Kennedy School – The Liar’s Dividend and Deepfake Technology
https://www.belfercenter.org/publication/deepfakes-and-liars-dividend

National Center for State Courts – Deepfakes and Synthetic Media in the Justice System
https://www.ncsc.org/newsroom/public-health-and-safety/deepfakes

Brookings Institution – Deepfakes and the New Disinformation War
https://www.brookings.edu/articles/deepfakes-and-the-new-disinformation-war/

MIT Technology Review – Deepfakes are getting better and harder to detect
https://www.technologyreview.com/2023/02/17/1068868/deepfakes-detection-ai/