Avocado teapots. Cats playing chess. How new technology mandates a level of judicial technological competence and understanding.
Bluntly put, judges exist to serve litigants who have disputes. The business of the judiciary is to facilitate the resolution of disputes–whether the dispute is resolved by the judge, a jury or through settlement. Judges are in a service business: like every other service business these days, judges need some basic familiarity and understanding of relevant technology.
.A new technology caught my eye last week that drives this point home. DALL-E, a technology that lets you create digital images by typing in what you want to see, was discussed in a recent New York Times article by Cade Metz. The technology was developed by an outfit called OpenAI, which is backed by a billion dollars in funding from Microsoft. According to OpenAI, DALL-E is “trained to generate images from text descriptions, using a dataset of text–image pairs”. It is a “new AI system that can create realistic images and art from a description in natural language.”
DALL-E works by recognizing text and then searching millions of images and looking for patterns. The program can then combine pieces of images into a new image that matches what you have asked it to create. The article has images the system found when asked for avocado-shaped teapots and two cats playing chess. The chess-playing cats looked exceptionally realistic. Its described as a potential helpful and time saving tool for so-called commercial artists.
We all need to recognize you can’t always believe what you see
So why talk about this system in a legal tech blog? Two reasons. First, I talked some time ago about the problems so-called deep fakes pose for our legal system. Images or videos that look real but aren’t can certainly fuel disinformation campaigns. And they can lead to the introduction of evidence that’s not real and resulting in judicial determinations that aren’t valid. As I said then, “We also need to educate the judiciary and public about the dangers and risks: we all need to recognize you can’t always believe what you see. And finally, perhaps we need new ethical rules to pinpoint the risks and obligations of lawyers.”
DALL-E opens the door to lots of mischief with photographic evidence. The traditional test for the admissibility of photographs in court is whether the photo “shows what it purports to show”. Does it fairly and accurately represent the subject matter. These questions get complicated when images can be created that are not actual depictions but are AI generated by combining different images together.
As one of the experts quoted in the Metz article said, “People need to know that the images they see may not be real. ” That task gets more complicated the more sophisticated systems like DALL-E become more widely used. (DALL-E is not yet publicly available).
Which leads me to the second reason DALL-E caught my eye. As evidentiary gatekeepers. Future judges will be faced with some tough decisions about what is real valid evidence and should be admissible. And what is not. To make these tough decisions, judges will need some level of technological knowledge—competence, if you will. Judges must have a basic level of technical and scientific knowledge to be competent to deal with myriad issues that technology of the future will pose. As the New York Commission, (about which I wrote recently), said, “Judges will also need to stay abreast of technology developments to fulfill their duties and maintain public trust.”
This leads to a tricky balancing act between what is standard and valid technology for admissibility purposes, for example, and what is not.
This leads to a tricky balancing act between what is standard and valid technology for admissibility purposes, for example, and what is not. The recent kerfuffle in the Wisconsin trial of Kyle Rittenhouse for killing two people during a protest demonstrates this balancing need. As has been discussed, an issue there was the admissibility of portions of a video blown up with so-called “pinch to zoom.”
The defense objected to the evidence arguing that “iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms.” They added that the iPad “uses artificial intelligence, or their logarithms, to create what they believe is happening. So this isn’t actually enhanced video; this is Apple’s iPad programming creating what it thinks is there, not what necessarily is there.”
In other words, defense lawyers argued the blown-up photos were altered and manipulated from the original. And therefore would not meet admissibility and authentication tests. Wisconsin judge Bruce Schroeder ultimately ruled that the prosecution had to prove that zooming on a video with an iPad doesn’t alter or manipulate the footage. At the time, there was a great hue and cry from the tech community that Judge Schroeder was being hyper-cautious. That he didn’t understand the technology as he should. And I must admit; I had the same thought.
The problem is that without some basic understanding of and comfort with technology, it may be tempting for judges to require the appropriate groundwork to be laid for offering up any evidence that is impacted by technology. Whether that groundwork is needed or not.
But that could lead to massive roadblocks and disruption in judicial proceedings if judges’ knee-jerk reaction is to require lengthy, cumbersome, and disruptive foundations when technology is somehow involved. As more and more technology like DALL-E becomes available, judges must know enough about technology to ask some hard questions about evidence to be sure the standards are met.
They need to know when those questions are needed and when they aren’t. And to do that, they will need some level of technological competence.
But they also need to know when it is appropriate to do so. They need to know when those questions are needed and when they aren’t. And to do that, they will need some level of technological competence.
Yes, requiring judicial technological competence is controversial among judges, as Victoria Hudgins’s excellent recent article points out. But Canada recently enacted such expectations for its federal judges:
3.C.5 Judges should develop and maintain proficiency with technology relevant to the nature and performance of their judicial duties.
And Comment 8 of the ABA Model Rules on lawyer competence creates the same expectation for lawyers. We need to ask the same of our judges. If we want to preserve our system of justice and the rule of law, our judges need to be ready to deal appropriately with new technologies coming to their courtrooms. DALL-E is not the first, nor will it be the last technology to alter reality.