AI ETHICS The proposed rule seeks to address issues raised by AI use in courts and has generated extensive discussion and comments from judges, lawyers, and other stakeholders. The NACDL submitted comments to the Advisory Committee on February 16, 2026. 51 Defense lawyers must recognize that AI creates new risks of fabricated or manipulated evidence generated by clients, witnesses, and prosecutors, and it also presents a temptation for defense lawyers to follow suit. Defense lawyers should prepare to scrutinize and confront fabricated evidence generated by any and all parties in a case. AI image generators can create photographs of events that never occurred. The use of deepfakes in the courtroom has prompted responses from scholars, practitioners, bar associations, and courts alike. Professor Rebecca Delfino argued in 2023 that “no evidentiary procedure explicitly governs the presentation of deepfake evidence in court,” and was the first to propose a new Rule 901(c) in 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.” 52 Others have more recently suggested a new Rule 901(b)(11) requiring courts to go beyond a witness statement to enable the accused party to request a hearing to require the proponent to provide corroborating sources, 53 and a new Rule 901(c) that holds if the challenging party successfully presents evidence that challenges the authenticity of evidence as more likely than not to be a deepfake, the proponent must show that its probative value outweighs its prejudicial effect on the party challenging the evidence. 54 The risks of manipulated evidence run in multiple directions. Prosecutors might intentionally use or unknowingly rely on AI-manipulated evidence. Witnesses might submit AI-generated materials. Defenders themselves might inadvertently present fabricated content if they fail to verify AI outputs. Defenders should approach evidence with heightened skepticism in the AI era and consider the feasibility of bringing in forensic experts to inspect both the prosecutor’s materials and audit their own materials.
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Standard Setting
Defenders have an opportunity — and perhaps an obligation — to lead in establishing ethical standards for AI use in the criminal legal system. By developing and adhering to rigorous ethical frameworks, defenders can model responsible AI practices and create standards against which prosecutorial AI use can be measured. Moreover, knowledgeable and trained defenders can become advocates for parity in ethical use of AI among prosecutors. Once defenders better understand how practical uses of AI clash with ethical obligations, defenders can better articulate that conflict to key stakeholders in the public and private sector.
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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