By Christina Billhartz

In 1987, the U.S. Sentencing Commission created its first federal sentencing guideline for child pornography offenses. As Congress grappled with dynamic technological advances that changed the child pornography landscape, the Commission continually revised and amended these guidelines, creating the last significant amendment in 2009. For the past 12 years, these guidelines have been considered by federal court judges tasked with sentencing child pornography offenders, yet little has been done to determine whether or not these guidelines actually diminish the amount of children victimized by child pornography. While acknowledging that child pornography victimizes and harms children in countless ways and must be criminalized to account for these egregious harms, this Note argues that the sentencing guidelines fail to deter the production, distribution, and consumption of child pornography, and fail to fulfill congressional goals of protecting children from victimization. Rather, the guidelines have resulted in the mass incarceration of child pornography offenders and a system that punishes viewers of child pornography more severely than it does child rapists. If the government truly wants to protect children from being victimized through child pornography, then the sentencing guidelines, as written, cannot stand, and they must be replaced by a system that allows child pornography offenders to access rehabilitative resources both inside and outside of the federal prison system.

Arizona Law Review, 2021. 32p.

By Jennifer M. Reingle Gonzalez,  Rebecca Molsberry, Jonathan Maskaly, and Katelyn K. Jetelina

COVID-19 has caused a wave of research publications in academic and pre-print outlets which have resulted in several high-profile retractions. While the breadth of emerging research has been instrumental in understanding and curbing the global pandemic in near real-time, unfortunately manuscripts with major methodological challenges have fallen through the cracks. In this perspective, we illustrate this issue in light of a recent manuscript by Piquero et al. (2020). In the study, a statistically significant association between stay-at-home orders and family violence was not detected; however, the authors widely disseminated a “12.5% increase in family violence” offenses to a variety of media outlets. This negligent dissemination of inaccurate research findings has important implications for policy and the virus mitigation efforts, which might urge policymakers to terminate stay-at-home orders in an effort to reduce family violence and other social risk factors. Changes may ultimately result in more COVID-related deaths as stay-at-home orders are prematurely and inappropriately lifted to prevent purported injuries in the home. Therefore, the widespread propagation of these claims in the absence of scientific evidence of an increase has great potential to cause harm.

American Journal of Criminal Justice, 2022. 11p.

By J. Andrew Hansen, Gabrielle L Lory 

Rural criminal justice organizations have been overlooked by researchers and underfunded in the United States, exacerbating problems caused by the coronavirus pandemic. Access to victims' services has been a longstanding issue in rural communities, but has become more difficult due to stay-at-home orders and changes in daily activities. Requirements such as social distancing, necessitated by COVID-19, have increased the risk of domestic violence and rural service providers are less prepared than those in more populated areas. Rural law enforcement agencies, on the other hand, have traditionally operated with smaller budgets and staffs-conditions that have complicated the response to the unprecedented event. Many of the recommended practices for policing during a pandemic have been more applicable to larger urban and suburban departments with more resources and officers extended across many units. The strain on rural victims' services and law enforcement has been felt only a few months into the coronavirus pandemic, while the long-term effects are not yet known.

Southern Criminal Justice Association, 2020. 12p.

 By David Yerger, Brandon Vick, Robert Orth, and Charles Gartside, 

The project’s primary goal was to investigate whether shocks stemming from the COVID-19 pandemic either triggered or heightened human suffering in two crimerelated areas: murder and abuse. A secondary goal was to identify rural-urban differences in these outcomes both before and during the pandemic. An analysis of homicides and protection from abuse orders over time provided valuable insights regarding crime trends and rural-urban differences, but it did not suggest large, long-term effects due to the COVID-19 pandemic throughout the state. The statewide homicide rate rose 21 percent from 2019 to 2020, but the increase was specific to a certain group and location: Black, male victims in Philadelphia County, murdered with a firearm, with most of these incidents being homicides, with no known relationship between the victim and offender (Philadelphia County’s murder rate increased 36 percent in 2020). In rural counties, the 2020 murder rate rose 24 percent, and in non-Philadelphia urban counties, there was a 3 percent increase. It should be noted that these upward trends came after homicides steadily rose from 2014 to 2018, before falling significantly in 2019, and then rising in 2020. The exploratory analysis on county-levels of COVID case and death rates found no statistical evidence that high COVID-rate counties were more likely to experience high levels of protection from abuse orders or homicides. However, the analysis found that counties with higher unemployment rates and Supplemental Nutrition Assistance Program (SNAP) participation also experienced higher murder rates and protection from abuse order prevalence in 2020 (a relationship that holds when tested across other years). 

Harrisburg, PA: Center for Rural Pennsylvania, 2022.  42p.

By Brandon Vick, Robert Orth, Charles Gartside

Information on the prevalence and cost of firearm injury is difficult to find and typically lacks important details. Using a rich dataset from the Pennsylvania Health Care Cost Containment Council (PHC4), researchers from PCCD/IUP performed a statistical analysis of non-fatal firearm injuries from 2016 to 2021, finding the following: • Initial injury totals and costs: Over the five-year timeframe, an estimated 10,640 new, non-fatal firearm injuries occurred in Pennsylvania for which patients received treatment. The medical cost of initial treatment for these injuries was $308.4 million, or over $51 million per year. The average cost of treatment was $34,837 in 2020. • Rising medical costs and injuries: The number of total injuries increased by 20 percent and the medical cost for these injuries increased by 107 percent from 2016 to 2020. The number of accidental injuries increased by 46 percent (to over 1,000 per year in 2020), with a cost increase of 195%. Assault injuries increased by 5%, with the medical costs of these injuries increasing by 81%. • Rises with COVID: The number of firearm injuries rose dramatically immediately after the onset of the COVID-19 pandemic and resulting shutdowns. Both accidental and assault injuries rose to their highest levels over the timeframe studied. • Economic and Racial Disparities: The poorest one-fifth of zip codes incurred nearly 60 percent of the total medical costs of firearm injuries. Two-thirds of all patients of firearm injuries were Black, although Black people make up only 11 percent of the Pennsylvania population. • Long-term costs: 16 percent of new injuries require additional hospital visits and incur nearly four times the medical costs, averaging over $70,000 per patient. Over 3 percent of new firearm injuries result in paralysis, increasing costs over the first year to over $100,000. • Full Economic Losses: If values are placed on lost work and lower quality of life, the total economic losses of firearm injury increase by six-fold to an estimated $300 million per year and $1.5 billion. Estimates here should be considered conservative, as they do not consider full costs to society (i.e. disability and unemployment payments) and are limited to costs only incurred during the time of visits for treatment (i.e. not counting long-term rehabilitation). Additionally, they do not include fatal injuries or shootings – for instance, over 600 people are victims of homicide by firearm and at least double that number die by firearm suicide per year. The nonfatal injury findings here are in line with estimates for U.S. injuries made separately by the Government Accountability Office and the Center for Disease Control. 

Harrisburg:  Pennsylvania Commission on Crime and Delinquency , 2022.  48p.

By DEPARTMENT OF JUSTICE NEW ZEALAND

“…The study includes statistical information to the extent that it is available. The law and administrative procedures are described and where appropriate psychological and sociological factors are discussed. This factual background is essential for informed consideration of the criminal scene. Inevitably interpretations are made and a variety of opinion is offered. It was not the purpose of the Department to produce a colourless official document devoid of all contentious matter. Although there has been a measure of co-ordination, diversity of opinion and spontaneity remain. It would therefore be difficult to agree with everything that is said or suggested.”

Ministry of Justice. New Zealand. 1968. 410p.

By Rumbi Matamba and Chwayita Thobela

Over the past decade, the GI-TOC has documented a staggering 108% increase in targeted killings in South Africa. While South Africa has long grappled with high levels of violence, as evidenced by a per capita murder rate of 45 per 100,000 in 2022/23, or approximately 70 murders a day, targeted killings have notably escalated, particularly political killings at local municipal level. Hitmen have become more daring, incidents more public and victims more high-profile. Coupled with the deficiencies in South Africa’s overburdened criminal justice system, where only about 15% of all murders are solved, the picture that emerges is one of a situation that is barely contained.

GI-TOC recorded 131 targeted killings in South Africa in 2023, just ten fewer than in 2022. The 131 cases were grouped into four categories: organized-crime related (46 cases or 35% of incidents), minibus taxi-industry related (45 incidents, or 34%), political assassinations (31 incidents, or nearly 24%) and personal assassinations (9 incidents, or nearly 7%). While every effort is made to ensure that the data is robust and accurate, this is almost certainly an undercount as the database draws on publicly available information such as press reports, media statements from affected families, court records, and media statements by the criminal justice sector.

This report is framed in the context of South Africa’s 2024 general elections. Previous analysis has shown that there are always spikes in political assassinations during election years, particularly in long-contested provinces such as KwaZulu-Natal. The 2024 elections, the sixth national election in the country’s 30 years of democracy, have been earmarked as a potential watershed moment.

Political violence and assassinations pose a very real threat to the country’s democracy. They are not an isolated phenomenon and they intersect with organized crime and criminal networks. The intertwining of criminal networks and political assassinations in South Africa underscores the urgent need for comprehensive strategies to tackle organized crime and stop targeted killings.

Geneva, SWIT: Global Initiative Against Transnational Organized Crime, 2024. 32p.

By David Pyrooz

Between 1990 and 2021, for adult offenders, Colorado punished felony murder with a mandatory minimum sentence of life without parole. Felony murder was classified as a class 1 felony, along with other theories of first-degree murder, such as after-deliberation and extreme indifference murder, as well as first-degree kidnapping, until Governor Jared Polis signed Senate Bill 124, effective September 15, 2021, reclassifying the offense to a class 2 felony. As a result, felony murder is now punishable by a sentence of 16-48 years.

The purpose of this study is to provide a statistical portrait of people who have been convicted of felony murder between 1990 and 2021. Data were acquired through open records requests from the Colorado Department of Corrections (“CDOC”) and the State Court Administrator’s Office (“SCAO”), along with public data from the Colorado State Demography Office. This study’s primary unit of analysis is a criminal case, meaning a criminal case identifiable by a single case number in which a person was found guilty. With respect to felony murder, a felony murder case means one with one or more felony murder convictions where no other theory of first-degree murder was proven with respect to that or those homicide(s).

Unpublished paper, 2023.

By Hannah Miles and Samantha Bricknell

The National Homicide Monitoring Program is Australia’s only national data collection on homicide incidents, victims and offenders. This report describes 232 homicide incidents recorded by Australian state and territory police between 1 July 2022 and 30 June 2023. During this 12-month period there were 247 victims of homicide and 260 identified offenders

Statistical Report no. 46. Canberra: Australian Institute of Criminology, 2024. 49p.

BY Lyn Mikel Brown

For some time, reality TV, talk shows, soap-operas, and sitcoms have turned their spotlights on women and girls who thrive on competition and nastiness. Few fairytales lack the evil stepmother, wicked witch, or jealous sister. Even cartoons feature mean and sassy girls who only become sweet and innocent when adults appear. And recently, popular books and magazines have turned their gaze away from ways of positively influencing girls' independence and self-esteem and towards the topic of girls' meanness to other girls. What does this say about the way our culture views girlhood? How much do these portrayals affect the way girls view themselves?

In Girlfighting, psychologist and educator Lyn Mikel Brown scrutinizes the way our culture nurtures and reinforces this sort of meanness in girls. She argues that the old adage “girls will be girls”—gossipy, competitive, cliquish, backstabbing— and the idea that fighting is part of a developmental stage or a rite-of-passage, are not acceptable explanations. Instead, she asserts, girls are discouraged from expressing strong feelings and are pressured to fulfill unrealistic expectations, to be popular, and struggle to find their way in a society that still reinforces gender stereotypes and places greater value on boys. Under such pressure, in their frustration and anger, girls (often unconsciously) find it less risky to take out their fears and anxieties on other girls instead of challenging the ways boys treat them, the way the media represents them, or the way the culture at large supports sexist practices.

Girlfighting traces the changes in girls' thoughts, actions and feelings from childhood into young adulthood, providing the developmental understanding and theoretical explanation often lacking in other conversations. Through interviews with over 400 girls of diverse racial, economic, and geographic backgrounds, Brown chronicles the labyrinthine journey girls take from direct and outspoken children who like and trust other girls, to distrusting and competitive young women. She argues that this familiar pathway can and should be interrupted and provides ways to move beyond girlfighting to build girl allies and to support coalitions among girls.

By allowing the voices of girls to be heard, Brown demonstrates the complex and often contradictory realities girls face, helping us to better understand and critique the socializing forces in their lives and challenging us to rethink the messages we send them.

New York; London: NYU Press, 2003. 259p.

By Cindy D. Ness

In low-income U.S. cities, street fights between teenage girls are common. These fights take place at school, on street corners, or in parks, when one girl provokes another to the point that she must either “step up” or be labeled a “punk.” Typically, when girls engage in violence that is not strictly self-defense, they are labeled “delinquent,” their actions taken as a sign of emotional pathology. However, in Why Girls Fight, Cindy D. Ness demonstrates that in poor urban areas this kind of street fighting is seen as a normal part of girlhood and a necessary way to earn respect among peers, as well as a way for girls to attain a sense of mastery and self-esteem in a social setting where legal opportunities for achievement are not otherwise easily available.
Ness spent almost two years in west and northeast Philadelphia to get a sense of how teenage girls experience inflicting physical harm and the meanings they assign to it. While most existing work on girls’ violence deals exclusively with gangs, Ness sheds new light on the everyday street fighting of urban girls, arguing that different cultural standards associated with race and class influence the relationship that girls have to physical aggression.

New York; London: NYU Press, 2010. 198p.

By Asher Flynn, Anastasia Powell, Lisa Wheildon

This project offers crucial insights to aid Australian employers and policy-makers in understanding and combating workplace technology-facilitated sexual harassment (WTFSH) effectively.

The study featured:

20 in-depth interviews with industry stakeholders

a national survey with over 3,300 Australian adults

focus groups with young adults to identify current gaps in WTFSH response mechanisms.

The findings underscore the significance of the problem, with 1 in 7 Australian adults surveyed reporting they had engaged in WTFSH.

Results also reflect that gender is a key factor in perpetration. Men were more likely to report they had engaged in WTFSH than women, and male-dominated workplaces were associated with much higher rates of WTFSH than workplaces dominated by women.

Sexist and gender-discriminatory attitudes and the endorsement of sexual harassment myths were two of the strongest predictors of engagement in WTFSH. These results emphasise the critical importance of gender-competent leadership in the workplace.

Sydney: Australia's National Research Organisation for Women's Safety (ANROWS) 2024

By Morgyn Young

Recently, Louisiana classified Simple Burglary of an Inhabited Dwelling, when a person is present during the commission of the crime, as a crime of violence. The overwhelming majority in both the House and the Senate voted to deem the crime a crime of violence. Yet, LA. REV. STAT. § 14:60 (Simple Burglary of an Inhabited Dwelling) does not contain an inherently violent element. In this note, the Author takes a deep dive into the Louisiana Code to uncover the foundation needed to classify a crime as a crime of violence. In doing so, it becomes apparent that Louisiana has begun to stray away from a traditional notion of violence. Many of the amendments, including La. Rev. Stat. § 14:60, do not follow conventional notions of violence in that they do not have a nexus to physical injury. This expansion has reached the point where there is no longer a list of attributes that can be used to determine a crime of violence.

Throughout the article, the Author uses Simple Burglary of an Inhabited Dwelling when a person is present as an example to further portray the idea that the Legislature does not follow the crime of violence definition listed in the code, nor is there a readily apparent framework utilized when deeming crimes "violent." To begin, the Author explores how the definition of a crime of violence has grown outside the bounds of the traditional definition of violence by comparing differing "violence" definitions, both past and present. The Author notes that the definition of violence is constantly evolving. However, the Legislature has expanded far past the modern definition. The Author furthers the analysis by examining the different crimes the Legislature has deemed violent compared to La. Rev. Stat. 14:40. Through the study, it becomes clear that the Legislature, as a whole, cannot define violence effectively, nor does the enumerated list under a crime of violence reveal a consistent determination. As in, the Legislature has not plausibly categorized violent crimes. In further explanation, when singling out just the property crimes listed as a crime of violence, there is not a consistent attribute between the crimes listed to determine what escalated each crime to a crime of violence. The Author ends the analysis by attempting to define the elements of La. Rev. Stat. § 14:2, which proves to be quite challenging as the Louisiana Supreme Court has not provided much insight into the framework of classifying a crime. The elements of importance consist of physical force, substantial risk, and the ordinary case of an offense. The Author continues by comparing Louisiana's definition of a crime of violence to the United States Code's definition. The Author points out the resemblance between the two statutes, yet verbiage contained in 18 U.S.C § 16 was deemed unconstitutional. Using both statutes, multiple cases, and burglary statistics the Author further proves the idea that simple burglary of an inhabited dwelling, when a person is present, should not be classified as a crime of violence. As the crime does not entail physical force to the victim, an intent to harm a person, nor is the risk of harm to the victim substantial. Additionally, the offense cannot be correlated with the existing property crimes labeled a crime of violence, and the offense cannot be classified a crime of violence under the definition provided in La. Rev. Stat. § 14:2. Ultimately, this demonstrates the Legislature's sway from a traditional definition of violence and the legislature acting without limitation in classifying crimes as violent. This never-ending expansion or overreaching fuels an ineffective judicial system, ultimately affecting every citizen in some shape or form.

Unpublished paper, 2024. 27p.

By Craig S Wright

Cybercrime has become a pervasive and complex issue in today’s interconnected world, posing significant threats to individuals, businesses, and governments. This paper aims to provide a comprehensive overview of the diverse aspects related to cybercrime, including its historical context, demographic and geographic dimensions, environmental influences, and preventive strategies. This review provides a holistic overview of the multifaceted dimensions of cybercrime. By understanding its historical context, demographic and geographic aspects, environmental influences, and preventive strategies, policymakers, law enforcement agencies, and researchers can work collaboratively to combat cyber threats effectively. Such a comprehensive approach will help create a safer digital environment and protect individuals, organizations, and societies from the adverse impacts of cybercrime. Moreover, through ongoing research and collaboration, it is possible to develop innovative solutions and adapt to the evolving landscape of cyber threats, ensuring a secure and resilient digital future.

Unpublished paper, 2023. 54p.

By Folahanmi Aina and John Sunday Ojo

Violent extremist organisations (VEOs) use social media platforms to promote extremist content and coordinate agendas.  The use of digital platforms to disseminate information and coordinate activities by VEOs in Nigeria has grown considerably in recent years. This report analyses the adoption of social media before and after attacks by Boko Haram, Islamic State of West Africa Province (ISWAP) and Ansaru. In the post-attack environment, Boko Haram, ISWAP and Ansaru use platforms to claim responsibility and display their strengths against the state’s security forces. By demonstrating their capacity to attack state security forces, the three groups aim to erode the public’s confidence in the state military’s capacity to safeguard national security. The key findings of this report are as follows: Boko Haram, ISWAP and Ansaru previously leveraged popular social media platforms, including YouTube, Facebook, Telegram and Instagram. These platforms were used to promote propaganda and create awareness regarding upcoming attacks. However, all three groups have now had their use of these platforms restricted or banned. ISWAP has switched to using WhatsApp as a secure platform for communication before, during and after attacks. Rocket.Chat and Telegram have also been instrumental in ISWAP’s information dissemination. Boko Haram uses Telegram to share its activities in the pre-attack and post-attack environments. Ansaru has yet to appear on social media platforms due to its underground activities, which are hard to monitor. The recent acquisition of high-speed satellite internet has enhanced ISWAP’s communication with its audience and enabled coordinated attacks. Combating the exploitation of social media platform by VEOs requires a multidimensional approach. Effective collaboration with technology companies becomes imperative to identify extremist content. Building technological infrastructure for the state requires synergistic collaboration with the military and intelligence agencies to enable the removal of extremism from social media platforms. Devising multilingual and specialised algorithms to detect coded extremism messages and audio-visual content is essential for effective counter-extremism digital architecture. Investing in current technology through research and algorithm development must be prioritised to identify violent extremist content in Nigeria and beyond.

London: Global Network on Extremism & Technology, 2023. 30p.

By Suzanne Newcombe, Sarah Harvey, Jane Cooper, Ruby Forrester, Jo Banks and Shanon Shah

The word ‘cultic’ is applied to a diverse range of online activity. This label is not always intended to convey a negative judgement; for example, individual influencers, music groups and brands aspire to a ‘cult following’. However, the use of the words ‘cult’ or ‘cultic’ is usually intended by the speaker as a judgement to draw attention to something that may have some elements typically associated with religion (for example, idealisation of a particular individual, a specific worldview and/or ritual practices) as well as the potential to cause harm and violence. This report proposes three ideal-typical groupings of online cultic activity that can glorify and inspire violent extremisms: ‘Cultic’ Religious Groups, ‘Online Cultic Milieus’ and ‘Cultic Fandoms’. This is not an exhaustive description of online activity that has been termed ‘cultic’ in popular culture, but it provides a good starting point for further analysis. This report argues that the understanding of ‘cults’ and online activity needs to be carefully nuanced; the complexities of online and offline activities that might result in violent extremism need to be analysed and risk assessed at the level of both group/social movement and individual. It is important to understand that there are a range of ways individuals interact with these cultic online environments that may or may not represent warning signs or pathways into violent extremism. A holistic understanding of both the nature of the cultic online milieu and an individual’s engagement with that environment is warranted before making assumptions about the nature of any individual’s engagement.

London: Global Network on Extremism and Technology (GNET), July 2023.

By Julia Kupper and Reid Meloy

This pilot study examines the correlation of online and on-the-ground behaviours of three lone-actor terrorists prior to their intended and planned attacks on soft targets in North America and Europe: the Pittsburgh synagogue shooter, the Buffalo supermarket shooter and the Bratislava bar shooter. The activities were examined with the definition of the proximal warning indicator energy burst from the Terrorist Radicalization Assessment Protocol (TRAP-18), originally defined as an acceleration in frequency or variety of preparatory behaviours related to the target. An extensive quantitative and qualitative assessment of primary and secondary sources was conducted, including raw data from different tech platforms (Gab, Discord and Twitter–now X) and open-source materials, such as criminal complaints, superseding indictments and court trial transcripts. Preliminary findings of this small sample suggest an inverse relationship between the online and offline behaviours across all three perpetrators. The average point of time between the decision to attack and the actual attack was five months, with an elevation of digital activities in the three months leading up to the incident, along with some indications of offline planning. In the week prior to the event, social media activity decreased–specifically on the day before the acts of violence with two subjects going completely dark–while terrestrial preparations increased. On the actual day of the incident, all assailants accelerated their tactical on-the-ground actions and resurfaced in the online sphere to publish their final messages in the minutes or hours prior to the attack. It appears that the energy burst behaviours in the digital sphere and the offline actions can be measured in both frequency and variety. Operational implications of this negative correlation are suggested for intelligence analysts, counter-terrorism investigators and threat assessors.

London: The Global Network on Extremism and Technology (GNET), 2023. 36p.

By Nafees Hamid and Cristina Ariza

Question: Are those radicalised offline or online more of a threat? Which group is harder to detect, more successful in completing attacks, and more lethal when they do so? Is the pattern different for youth versus older perpetrators and for men versus women? This report investigates these questions. Database: We created a database containing 439 perpetrators involved in 245 attacks between 1 January 2014 and 1 January 2021. It includes every publicly known completed attack and an extensive sampling of thwarted attacks. Attacks were all jihadist‑linked in eight Western countries: Australia, Austria, Belgium, France, Germany, Spain, the United Kingdom and the United States. Type of radicalisation: In our database, radicalisation primarily happens offline; over half the individuals in our database had been radicalised via offline networks. Success and lethality: Individuals who were radicalised offline were three times more likely than individuals radicalised online to complete an attack successfully. Those radicalised offline are 18 times more lethal than individuals in the online category. Those radicalised online are almost eight times more likely to fail than to succeed. Group attacks: Individuals who were radicalised offline are almost three times more likely to attack or plot in groups than individuals radicalised online. Success of group attacks: While groups were more likely to be thwarted by the police than to succeed (regardless of how individuals had been radicalised), successful groups of people radicalised offline were more lethal than their lone actor counterparts (15%). Family and friends: Some 87% of those with radicalised friends and 74% with radicalised relatives plotted or attacked together. Foreign fighters: Foreign terrorist fighters (FTFs), who were mostly radicalised offline, have the same success rate as non‑FTFs. But success rate increases if they have spent more than a year in a terrorist training location. Age: Online radicalisation is on the rise for young people (born from the 2000s onwards), although most individuals, including young people, are still radicalised offline. Gender: Women appear to be more likely to have been radicalised online. Bottom line: Those radicalised offline are greater in number, more successful in completing attacks and more deadly than those radicalised online.  

London: International Centre for the Study of Radicalisation, King’s College London. 2022. 40p.

By Rebecca A. Delfino

Deepfakes—audiovisual recordings created using artificial intelligence (AI) technology to believably map one person’s movements and words onto another—are ubiquitous. They have permeated societal and civic spaces from entertainment, news, and social media to politics. And now deepfakes are invading the courts, threatening our justice system’s truth-seeking function. Ways deepfakes could infect a court proceeding run the gamut and include parties fabricating evidence to win a civil action, government actors wrongfully securing criminal convictions, and lawyers purposely exploiting a lay jury’s suspicions about evidence. As deepfake technology improves and it becomes harder to tell what is real, juries may start questioning the authenticity of properly admitted evidence, which in turn may have a corrosive effect on the justice system. No evidentiary procedure explicitly governs the presentation of deepfake evidence in court. The existing legal standards governing the authentication of evidence are inadequate because they were developed before the advent of deepfake technology. As a result, they do not solve the urgent problem of how to determine when an audiovisual image is fake and when it is not. Although legal scholarship and the popular media have addressed certain facets of deepfakes in the last several years, there has been no commentary on the procedural aspects of deepfake evidence in court. Absent from the discussion is who gets to decide whether a deepfake is authentic. This Article addresses the matters that prior academic scholarship on deepfakes obscures. It is the first to propose a new addition to the Federal Rules of Evidence reflecting a novel reallocation of fact-determining responsibilities from the jury to the judge, treating the question of deepfake authenticity as one for the court to decide as an expanded gatekeeping function under the Rules. The challenges of deepfakes—problems of proof, the “deepfake defense,” and juror skepticism—can be best addressed by amending the Rules for authenticating digital audiovisual evidence, instructing the jury on its use of that evidence, and limiting counsel’s efforts to exploit the existence of deepfakes.

Hastings Law Journal, 2023. 57p.

By Taurus Myhand

The proliferation of deepfake videos has resulted in rapid improvements in the technology used to create them. Although the use of fake videos and images are not new, advances in artificial intelligence have made deepfakes easier to make and harder to detect. Basic human perception is no longer sufficient to detect deepfakes. Yet, under the current construction of the Federal Rules of Evidence, trials judges are expected to do just that. Trial judges face a daunting challenge when applying the current evidence authentication standards to video evidence in this new reality of widely available deepfake videos. This article examines the gatekeeping role trial judges must perform in light of the unique challenges posed by deepfake video evidence. This article further examines why the jury instruction approach and the rule change approaches proposed by other scholars are insufficient to combat the grave threat of false video evidence. This article concludes with a discussion of the affidavit of forensic analysis approach, a robust response to the authentication challenges posed by deepfakes. The AFA approach preserves most of the current construction of the Federal Rules of Evidence while reviving the gatekeeping role of the trial judge in determining the admissibility of video evidence. The AFA will provide the trial judges with the tools necessary to detect and exclude deepfake videos without leaving an everlasting taint on the juries that would have otherwise seen the falsified videos.

Widener Law Review, 2023. 19p.