Wayne A. Logan (Florida State U College Law) has posted “Deepfakes in Interrogations” on SSRN. Here is the abstract:
In recent years, academics, policymakers, and others have expressed concern over police use of artificial intelligence, in areas such as predictive policing and facial recognition. One area not receiving attention is the interrogation of suspects. This article addresses that gap, focusing on the inevitable coming use by police of AI-generated deepfakes to secure confessions, such as by creating and presenting to suspects a highly realistic still photo or video falsely indicating their presence at a crime scene, or an equally convincing audio recording of an associate or witness implicating them in a crime.
Police authority to lie in interrogations dates back to Frazier v. Cupp (1969), where the Supreme Court condoned a police lie to a suspect that an associate implicated him in a crime, holding that the deceit did not render the confession secured involuntary for due process purposes, while positing that an innocent individual would not falsely confess. Building upon the now-recognized reality that innocents do indeed confess, and research demonstrating the coercive impact of police use of the “false evidence ploy” (FEP) in securing confessions, scholars have urged a general ban on its use. Courts, while often expressing dismay over police resort to FEPs, typically conclude that they do not violate due process, but at times have held otherwise, expressing particular concern over police presentation of fabricated physical evidence to suspects (versus orally relating its existence, as in Frazier).
While sympathetic to a ban on police deceit in interrogations more generally, this Article singles out deepfakes for specific concern, based on their unprecedented verisimilitude, the demonstrated inability of the public to identify their falsity, and the common belief that police are not permitted to lie about evidence, much less fabricate it. Ultimately, the article makes the case for reconsideration of Frazier, based on research findings of the past fifty years, as well as the many major changes to the criminal legal system since 1969, especially the significantly increased pressure felt by defendants to plead guilty (very often on the basis of confessions, rendering them more susceptible to FEPs).
Beyond doctrine, a ban will have important functional benefits. These include providing ex ante guidance to police and judges alike who lack clarity on the parameters of the notoriously indeterminate due process voluntariness standard. More broadly, a ban will serve as an important bulwark against the deleterious wave of disinformation now sowing distrust in governmental actors and institutions. If deepfakes are condoned in interrogations, it is not hard to imagine that judges, jurors, witnesses, and the public will be skeptical of police, as well the reliability of evidence in criminal cases, undermining a cornerstone of the nation’s constitutional democracy.