[ridgered4]

Isn't this backwards in criminal court? Wouldn't the onus be on the prosecution to prove that the video was real?

This sounds ridiculous since we lived most of our lives in the video-is-real era that has sort of been coming to an end. I recall the Kyle Rittenhouse trial had an interesting take on this where the defense asked to throw out upscaled video which contrary to every police procedural TV show is a lot like just fabricating data. With the amount of post processing and AI a cell phone camera does these days you could argue everything they pump out is doctored and fake by default because it kind of is. And most video is stored with lossy algorithms even without the post processing.

[oatmeal1]

It sounds like the defense is trying to disqualify any video of Musk being used at trial on the basis it may be fake.

If any evidence was automatically disqualified on the basis that it merely could be fake, there could never be any successful prosecution.

The defense is still welcome, of course, to make an argument and present evidence that any video or other evidence provided by the prosecution is fake.

[anonymouskimmer]

The onus on the prosecution/plaintiff is to prove the defense guilty at whatever standard of evidence is required for the case. Not to prove or disprove any claims about evidence. If the defense makes a claim about any piece of evidence, it is up to them to prove to the court's satisfaction that their claim is truthful.

[gizmo686]

The burden is on whichever side is attempting to introduce a piece of evidence.

From the federal rules of evidence:

> (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

https://www.rulesofevidence.org/article-ix/rule-901/

Specific to recordings

> An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

https://www.rulesofevidence.org/article-x/rule-1002/

Unfortunately, the rules of evidence are pretty vague about what is actually required to prove that a video is admitable as evidence; but the burden to do so is absolutely on the party introducing it.

[CHY872]

I think you're reading a little too much into that. I think it's worth comparing it to other forms of evidence. It's incredibly common in civil disputes for one party to give untruthful evidence, sometimes out of malice, sometimes simply due to the human psyche (plenty of evidence of people believing falsehoods after all). Likewise, tampering with physical evidence is far from new - tampered photographs have been going around for over a hundred years, while altered financial records and planted drugs are seen in a court somewhere every day. Practically then, the status quo appears to be that if a prosecutor or litigant has done some due diligence and have a good faith evidence based conclusion that the evidence has not been tampered with (by e.g. having the cameraperson swear under oath that the video is an accurate representation of what they saw), then they will be allowed to present it, and that won't change with the proliferation of deepfake video and audio.

At that point the reliability of the evidence may of course be called into question, as with any evidence or witness. The question mark would be whether it was convincing.

[anonymouskimmer]

Those are informative links. Sure. But that doesn't mean they have to prove it wasn't manufactured by martians 50 million years ago just because the other side brought up that possibility just to bring the piece of evidence in to the trial.

[FireBeyond]

Exactly, the standard is "reasonable doubt", not "any harebrained possibility whatsoever".

[gizmo686]

The standard for admitting evidence is far below reasonable doubt, even in a criminal case. Generally speaking, all you need is someone to get on the stand and say (under oath), "yes, that video is an accurate copy of the video I took".

If you have that (absent other possible evidentuary concerns), it is up to the trier of fact (e.g. jury) to determine if how much they believe the evidence.

The problem here is the prosecution cannot meet even that low bar, and instead is relying on the various exceptions to the requirement.

Rule 902 lists evidence that is "self authenticating", and videos are not on it.

https://www.rulesofevidence.org/article-ix/rule-902/

[WalterBright]

I complement you for spelling "harebrained" correctly.

[klyrs]

https://www.merriam-webster.com/words-at-play/complement-and...

[tsimionescu]

In criminal court at least, evidence is only admitted based on a chain of custody. You're not supposed to enter random videos off YouTube into evidence - you can only enter a piece of video into evidence based on witness testimony about how the video was taken.

As such, the question of deep-fakes should be relatively irrelevant to (criminal) courts. If a witness claims that a particular video was filmed on a particular day in a particular way, that is as much evidence as you need. Whether that witness is lying remains to be proven during the course of the trial.

Things may be different in civil court, where the standards for evidence are more lax I believe.

[sangnoir]

> In criminal court at least, evidence is only admitted based on a chain of custody.

Prosecution has a freer reign during deposition and can play a video from Youtube[1] and ask the subject of the video if they were at the location at a specific date and time, and if the words are their own.

1. With the courts permission.

[pixl97]

This is going to be interesting in the world of supporting evidence for criminal cases.

For example, lets say someone accused of a violent crime and the prosecutor wants it upgraded to a hate crime. Now lets the accused did not post a life of hate on facebook. But instead there are just a few audio recordings of the accused saying "I hate X people, I want to kill them all" brought to the court by someone else and not found in the accused possession.

As time progresses it will likely become more difficult to prove that the audio is real. Deepfakes of audio are convincingly good these days. Soon the recordings of politicians saying terrible things will be met with a default reply of "it's a deepfake", and it's likely a bunch of them will be.

Future is going to be messy, yo.

[anoonmoose]

The example you described is handled by our current system. (For the moment, let's put aside whether or not the system always works as intended). Evidence isn't just "brought to court by someone else". It doesn't just appear. Someone needs to be saying "this is the accused saying this"- during the discovery process before the trial the defense will have an opportunity to refute that claim. If it's another witness, they will be cross-examined by the defense and the jury will need to decide if the testimony is credible or not. If they lie, they will have committed perjury, and all of what I just said is true (roughly, I'm not a lawyer) whether you use AI or a good voice actor.

[HWR_14]

The burden overall is with the prosecution. Any given piece of evidence can be weighed independently by the jury. For instance, the prosecutor can call 100 eye witnesses and isn't required to prove each is correct beyond the shadow of a doubt. The defense can argue it's a conspiracy, but they will need to supply some evidence, not just assert it and say "you couldn't prove 100 people didn't conspire"

[jallen_dot_dev]

Not to mention one could generate an overwhelming amount of fake video evidence, making it virtually impossible to prove all of it is fake.

[plorg]

One would, in that case, draw the ire of the justice overseeing the case, whose time one would be pretty obviously wasting.

[cptskippy]

In this case it's relatively easy to prove the legitimacy of the video. It was published by a real news organization 6 years ago, is a video of an interview conducted by two well known and respected reporters (Kara Swisher and Walt Mossberg), was filmed in front of a live audience (additional witnesses), and it's being hosted on a 3rd party's website for 6 years. There should be piles of evidence that the video is real.

There should be higher degree of burden on the defense than claiming "fake news" and waving your hand.

[sangnoir]

> Isn't this backwards in criminal court? Wouldn't the onus be on the prosecution to prove that the video was real?

The judge is very much for the prosecution deposing Musk to ask him - under oath - if he can corroborate or dispute what's in the video. The defense was asking the videos to be thrown out entirely because they could be fake.

[gray_charger]

It's not backwards. The prosecution makes a claim and supports it with evidence. The defense makes the claim that the prosecution's evidence is fake, thus the defense needs to substantiate that claim. That's been true even before deepfakes were a thing.

[csydas]

This is already done, at least with many modern courts.

Substantiating your evidence has to happen via a pretty specific process, and there is an entire process for entering stuff into evidence with rules regarding chain of custody, validation, etc.

When it comes to evidence, it's not a specific claim against anyone, it's an item that is being introduced to support a claim. That should be validated and checked before it even gets to the court room. If either counsel believes it to be fraudulent, they need to review it and make the claim.

From the article, this was not really the case; instead, a video of a conference with many attendees and participants showed Musk making the claim in question.[0] Tesla's (or Musk's? Not sure) lawyers made a very weak statement:

"[Musk], like many public figures, is the subject of many ‘deepfake’ videos and audio recordings that purport to show him saying and doing things he never actually said or did,” Tesla said"

This is not really an argument towards anything about the video; it doesn't outright say it's a deepfake (likely because it's not), it doesn't provide any evidence to a claim that the video in question is a deepfake, it does nothing to establish who would have produced this deepfake, it doesn't question the YouTube channel owners, Recode, on if they are ready to stand by their statement, etc.

In this instance, the lawyers defending Tesla/Musk are trying to muddy the waters; they aren't bold enough to say Recode made a deepfake, they aren't trying hard to position that the video _is_ a deepfake, they're just trying to sow doubt into the minds of the court about whether to consider normal evidence like recordings or screenshots as valid given that Musk is a public figure. (not sure if there's a jury, but if there is, they want to confuse the jury also)

The judge was right in my opinion to slap the defense counsel on this, as it's transparent and pithy. It was a bad-faith statement to make for a legal team in my opinion as they weren't trying to _say it was a fake_, they just wanted to sow doubt without any proof.

It's even a bit hopeful in my opinion as to me it says the court is holding Musk and the businesses he associates with accountable for Musk's actions and statements; Musk has tried this before when he "joked" about buying Twitter and the courts didn't take on any of the arguments they put up. As I see it, it's another instance of Musk and counsel representing his interests trying desperately to escape culpability.

0 - https://www.youtube.com/watch?v=wsixsRI-Sz4&t=4765s

Edit: Wrong link on first version. I was trying to see if any other channels had coverage of the Code Conference 2016, but looks like it's just Recode.

[kevin_thibedeau]

Some image enhancement is scientifically valid. Stacking frames could make a blurry license plate legible. I don't want to live in a world where that is inadmissible.

[WalterBright]

I'm surprised that old emails count as evidence. An email file is just text - text that anyone can write/edit/fake.

[anonymouskimmer]

I don't know what authentication information is stored in an email header that would be difficult to fake. But if the email is stored on a third party's server, the chain of custody and time of creation can be independently documented.

For an old email, it would be up to the opposing counsel to argue that the person who made it made it for the purpose of fabricating evidence however many years ago.

[ceejayoz]

Plenty of evidence accepted in court can be faked. A written ransom note might be faked. A receipt for a gun could be faked.

How believable the emails are will vary. Do you still have the headers? Is there a valid DKIM signature in those headers? Can you bring the people CCed on the email as witnesses? etc.