Deepfakes in Court: Why Authenticating Digital Evidence Is Becoming a Litigation Issue

Artificial intelligence has made it increasingly difficult to assume that a photograph, recording or video accurately represents what happened.

That problem is now reaching the rules governing evidence in US courts.

The Advisory Committee on Evidence Rules is due to consider the evidentiary challenges created by deepfakes at its meeting on October 15, 2026. The Committee has been examining the issue over a series of meetings and has prepared, but not finally approved, a possible new Federal Rule of Evidence 901(c) dealing specifically with claims that evidence is a deepfake.

The development reflects a wider challenge for litigators: as synthetic media becomes increasingly convincing, establishing the origin and authenticity of digital evidence may become just as important as considering what the material appears to show.

Why Deepfakes Create an Evidential Problem

Digital evidence already forms an important part of many disputes.

Emails, photographs, videos, voice recordings, messaging applications, documents and other electronic files can all become relevant during litigation.

Traditionally, a key question has been whether the evidence is genuine and can be connected reliably to the person, event or communication it is said to represent.

Generative AI makes that question more complicated.

Synthetic media can now be used to create or manipulate:

• Video footage.
• Voice recordings.
• Photographs.
• Documents and written communications.
• Images of individuals who were never present.
• Statements that a person never made.

As the quality of that material improves, visual or audible plausibility alone may not be enough to establish authenticity.

What Is the Proposed Rule 901(c)?

The Advisory Committee on Evidence Rules has been considering whether the existing Federal Rules of Evidence need to respond specifically to deepfakes.

According to materials prepared for its October 2026 meeting, a possible new Rule 901(c) would create a process for dealing with a challenge that evidence is synthetic or manipulated.

Under the proposal currently being considered, the party challenging an item would first need to provide evidence sufficient to support a finding that the material was a deepfake.

If that threshold were met, the person seeking to rely on the material would then need to demonstrate that it was more likely than not authentic.

The proposal has not been finally approved, and its wording or approach may change.

Nevertheless, the fact that a specific rule is being considered demonstrates the seriousness with which federal rulemakers are approaching the authenticity of AI-generated and manipulated evidence.

The Problem Works in Both Directions

Deepfakes create more than one evidentiary risk.

The most obvious is that fabricated material could be presented as genuine.

A manipulated recording might appear to show a person making a statement they never made. A synthetic image might appear to document an event that never occurred.

But there is also an opposite problem.

As awareness of deepfakes grows, genuine evidence may increasingly be challenged on the basis that it could have been generated or altered using AI.

This is sometimes described as the “liar's dividend”: the existence of convincing synthetic media can make it easier to cast doubt on genuine material.

For legal teams, that means authenticity may need to be considered before a dispute over evidence arises.

Authenticating Digital Evidence Is More Than Looking for a Deepfake

Determining whether digital material is authentic should not depend solely on whether somebody can identify obvious visual or audio anomalies.

The broader evidential context can be equally important.

Depending on the nature of the material, relevant questions may include:

• Where did the original file come from?
• Who created or received it?
• When was it created?
• Has the original file been preserved?
• What metadata is available?
• Has the file been edited, exported or recompressed?
• Is there another copy from an independent source?
• Does the material correspond with messages, records or other evidence?
• Can the sequence of custody or possession be established?
• Are there technical indications of manipulation?

A digital investigation may therefore involve examining the file itself while also establishing its provenance and comparing it with other available evidence.

Why Preserving the Original File Matters

How digital material is handled can affect what can later be established about it.

A screenshot, downloaded copy or forwarded version of a file may still be useful, but it may not retain all of the information available in the original.

For example, metadata associated with an original file can potentially provide information about its creation, modification or technical characteristics.

Files circulated through messaging applications, social media platforms or editing software may also be changed or compressed during that process.

Where digital material could become important to litigation, preserving the original source material and documenting where it came from can therefore be significant.

This is one reason why early evidence preservation forms an important part of appropriate Litigation Support Services.

Corroboration May Become Increasingly Important

No single technical indicator necessarily provides the complete answer.

Evidence may need to be assessed alongside other information.

For example, a disputed video could potentially be compared with:

• Other recordings of the same event.
• Device information.
• Communications sent before or after the recording.
• Location information.
• Witness evidence.
• Photographs.
• File histories.
• Cloud or messaging records.
• Other contemporaneous documents.

The purpose is not simply to ask whether something “looks fake.”

It is to establish what can reliably be demonstrated about the material, its origin and the circumstances in which it was created.

Deepfakes Are Moving Beyond Fraud and Reputation Attacks

Much of the public discussion surrounding deepfakes has focused on scams, impersonation and reputational harm.

Those risks remain significant. Conflict International USA has previously examined how synthetic media can be used in deepfake identity and reputation attacks.

The emerging evidentiary issue is different.

Here, the question is not simply whether somebody has been targeted by a deepfake. It is whether disputed digital material can be relied upon as evidence — or whether genuine evidence is being incorrectly dismissed as synthetic.

That creates a direct issue for attorneys, investigators and forensic specialists working on matters in which electronic evidence is important.

AI Is Creating Wider Challenges for Legal Investigations

The deepfake issue also forms part of a broader conversation about how artificial intelligence interacts with litigation and investigations.

Earlier this year, Conflict International USA examined the implications of Artificial Intelligence, Privilege, and the Private Investigator, including the risks associated with placing sensitive investigative information into generative AI systems.

Authentication raises a different question, but the underlying lesson is similar: the growing use of AI is creating evidentiary issues that legal and investigative teams increasingly need to anticipate rather than address only after a dispute arises.

Investigative Support for Disputed Digital Evidence

Conflict International USA provides Litigation Support Services for attorneys and legal teams requiring factual, investigative and digital evidence support.

Depending on the circumstances of a matter, this may include the preservation and examination of digital files, review of metadata, background and factual enquiries, and the development of corroborating information relevant to disputed evidence.

The role of an investigator is not to determine whether evidence is ultimately admissible or what legal weight a court should give it. Those are matters for counsel and the court.

The investigative objective is to establish the available facts, preserve relevant material and clearly identify what the evidence can (and cannot) reliably demonstrate.

As deepfake technology becomes more accessible and convincing, that distinction is likely to become increasingly important.

If you require investigative or digital evidence support in connection with US litigation, contact Conflict International USA to discuss the circumstances of the matter in confidence.