As AI models have expanded beyond parsing large amounts of information for analysis and generation, they have begun to impact a wide range of industries—including the legal profession—in diverse ways. Artificial intelligence can help attorneys be more accurate and efficient in their work by reviewing and analyzing evidence and documents in a case, making that information easily accessible, and helping them identify the most compelling arguments and legal authority to advance their position in court. However, it also has potential downsides.
AI is now able to generate images indistinguishable from real ones and to use a person’s image and voice to insert them into photos or videos, doing or saying things that never happened, raising the risk of false evidence in cases. Using AIs may also create ethical concerns for attorneys, such as the obligation to disclose the use of AI to clients and the need to protect the confidentiality of client information fed into an AI model.
Fraudulent Photo & Video Evidence
One of the biggest concerns about artificial intelligence’s impact on the criminal legal system is the introduction of AI-generated evidence. Today’s AI models can generate highly realistic photos and videos from text prompts. Using photo references and voice samples, AI can create so-called “deepfake” videos that depict a person saying or doing things that never happened.
Unfortunately, AI-generated evidence could find its way into criminal cases through various means. Deepfake photos or videos may end up on social media, where investigators may find and seize them as evidence, not realizing their true origin. More worryingly, prosecutors or criminal defendants may create AI-generated photos, videos, or documents and try to pass them off as genuine in a criminal trial. The threat of fake evidence created by AIs entering evidence in criminal cases can also give lawyers an angle to raise the jury’s doubts or suspicions about the evidence in the case.
The risks posed by AI-generated deepfakes have led some jurisdictions to enact criminal laws prohibiting the use of artificial intelligence or other computer technology to generate photos or videos that use a natural person’s likeness without that person’s consent. Courts could also amend rules of evidence and procedures to strengthen authentication methods to help exclude AI-generated materials from evidence. Furthermore, companies that create and publish AI models have promised to incorporate features that implement watermarks or other metadata that mark an electronic image or document as created by AI.
AI in Legal Research and Case Analysis
Some attorneys have begun using AI for legal research and case analysis. AI programs that have scanned court opinions and statutes can help lawyers identify legal precedents to support their arguments to judges during motion practice in federal criminal trials or federal criminal appeals. AI may facilitate natural-language searching of case and statutory law, allowing attorneys to move away from the more hyper-technical methods used in existing legal databases to search case law and statutes. Large language model-based AI can understand context, nuance, and synonymous terminology in court opinions and statutes to help attorneys find the legal support they need for their arguments. Of course, attorneys should be wary about using AI for legal research, ensuring they use models trained specifically on real case law and statutes to avoid situations where an AI might make up a case or statute.
Attorneys can also use AI for extractive purposes, feeding data from a case like deposition testimony, affidavits, and hearing transcripts into an AI model, which can provide analyses or predictions about how a case might move forward or how the court may resolve specific issues.
AI can help reduce time and financial costs in legal research, reducing the expense for criminal defendants in preparing and pursuing a case strategy to fight their charges and seek a favorable outcome.
Using AIs for Document Drafting and Review
AI programs can also help attorneys with document drafting or review by sifting through substantial amounts of written material, reviewing and indexing document content for future searching, or distilling that content into more easily readable summaries. AIs may provide critical support in criminal cases involving substantial amounts of records or electronic data, such as in cases involving computer or financial crimes. Thus, using AI to review documents and evidence can enhance accuracy, reducing the risk that attorneys overlook critical evidence that can make or break a case.
Attorneys might also use AI to assist with creating persuasive written or oral arguments. AI programs can rapidly generate various lines of arguments, which attorneys can review to find the most persuasive ones.
Predictive Analytics in Criminal Cases
Attorneys may also use AI models to provide predictive analytics in criminal or civil cases. An AI model can review motion rulings by criminal trial judges, jury verdicts, criminal sentencing orders, and criminal appellate decisions to predict how a court or jury in a specific jurisdiction might rule on a case, given the facts. Predictive analytics may help attorneys identify more persuasive arguments and case strategies for the judge or jury they address. AI can sift through case dockets and court decisions quickly to identify trends in how courts and juries in a jurisdiction rule on cases. Attorneys may even use AI to assist with jury selection, having AI models analyze historical data on jury compositions and verdicts to determine the most favorable jury for the case.
Ethical Issues Raised by the Use of AI
As artificial intelligence rapidly advances, attorneys’ use of AI in court cases raises various ethical questions. First, using AI in legal representation could affect client confidentiality. Depending on how a lawyer uses AI or the type of model they use, they may inadvertently disclose confidential client information to third parties, thereby violating their professional responsibility. Using AI can also raise other ethical considerations for lawyers, such as evaluating an AI model’s competency and accuracy. Lawyers run the risk of violating ethics rules by relying on models prone to mistakes or generating false information, especially if the attorney does not have procedures for verifying an AI’s output. Ethics rules also raise murky questions about whether attorneys should disclose their use of artificial intelligence to clients. Some clients may consider a lawyer’s use of AI as a material factor in deciding whether or not to retain that attorney.
Critics of artificial intelligence highlight the potential for bias in AI models. Since a model only works on the information fed into it, an AI necessarily reflects the inherent biases or limited perspectives of the people who use it. As a result, the unregulated use of artificial intelligence may ultimately affect the fundamental fairness of the criminal justice process.
Contact an Experienced Criminal Defense Attorney Today
If you’ve been charged with a crime in state or federal court in Michigan, you deserve highly experienced legal counsel who can guide you through the criminal justice process and defend your rights and reputation. Contact us online today for a free, confidential consultation with our firm to discuss your options for fighting your charges and pursuing the best possible resolution to your case.