I contacted Bittle by email, and although he has not done any further research on this topic, he responded, “My impression is that even with very advanced AI systems like the ones that have debuted in the past year, there would still be a ‘garbage in, garbage out’ problem. Facial expressions and vocal fluctuations are only of limited use as indicators of a subject’s inner psychological state, just as the galvanic skin response measured by a polygraph doesn’t always indicate that a subject is lying.”
Some law enforcement agencies are already using AI to profile people. One algorithm uses nationality to profile dangerous drivers. Will AI technology be used by law enforcement as one component of probable cause for an arrest?
“Other companies sold…sentiment analysis software, in which an algorithm determines a person’s mood from facial expressions.”
In the movie Runaway Jury, Gene Hackman portrays an unethical jury consultant. He watches jury selection through a hidden camera. He provides advice via a hidden earpiece. Given how compact and powerful phones have become, will judges have to scrutinize all electronics brought into the courtroom?
Will attorneys try to convince judges that these AI tools be allowed? If allowed, will this favor those parties who can afford it? If some courts allow this and others do not, does this result in a patchwork justice system? How would jurors react if they knew that their every micro-expression and eye movement were being fed into an AI algorithm?
“The new video-generation systems could speed the work of moviemakers and other digital artists, while becoming a new and quick way to create hard-to-detect online misinformation, making it even harder to tell what’s real onthe internet.”
With just a few words AI can now generate pictures and videos. “Tree branch hiding stop sign” could give you a realistic image of just that. I realize that exhibits could be fabricated the old-fashioned way. But AI makes it much easier to fabricate and much less easy to discover the ruse.
Will courts place any limitations on the use of AI during depositions? With the entire casefile loaded, AI can now propose questions for the attorney that leave no stone unturned. Could AI also listen in and prompt objections for the defending attorney? What about the party that cannot afford this technology? Going one step further, could attorneys use AI to try and detect deception with the camera on a laptop or a phone? Again, will courts be uniform in addressing these issues?
With the power to create any scene, perhaps judges should enter a standing order in all cases that counsel has an ethical duty to disclose if AI was used to create any exhibit or as part of any deposition. The usual sanctions of costs, fees, barring of claims, dismissal, and referral to disciplinary commissions should be used for violators.
The Bottom Line
No one questions using the power of AI to tackle cancer or climate change. This powerful tool could have great value for our world and the future. However, it will also affect our legal world. Already employers and law enforcement are using powerful AI tools. The results of using these tools will necessarily flow into our courtrooms. How are the algorithms constructed? Who constructs them? Are we ready for this?
Some would argue I am overreacting. Some argue that AI just helps attorneys sift through words more efficiently. I chuckled at this from a recent article: “Law is seen as the lucrative profession perhaps most at risk from the recent advances in AI because lawyers are essentially word merchants.” This “word merchant” is still holding off on hisAI download.