Phil Favro Discusses Deepfakes and Authentication

Phil Favro has posted New Court Case Exemplifies Evidentiary Challenges with Deepfakes (Aug. 13, 2026), discussing both sides of authentication of evidence challenged as a deepfake. Phil uses the majority and dissenting opinions in U.S. v. Belt, 181 F.4^th 931 (8^th Cir. 2026), as an example.

In Belt, in brief summary, a government agent obtained Ring camera video of the crime.  On the one hand, the “video appeared to capture several aspects of the crime such as shouting, the assaults, a fire on the victim’s property, defendants’ vehicle, and the eventual arrival of law enforcement,” among other things.  Id.  That is typical authentication evidence.

On the other hand, Phil explained:  “The video also included several gaps ranging from seconds to over 22 minutes. During one of the gaps, a car ran over the victim.”  The owner of the Ring camera was not available to testify about the cause of the gaps.

The defense argued that the missing footage would have been exculpatory and that the gaps showed tampering. The trial court overruled the objection. A divided appellate panel held that the government met the “low bar” of authentication.  The majority held that the gaps went to weight, not admissibility. An en banc panel affirmed.

Phil provides great detail about the dissents.  For example, Phil wrote:

Judge Kelly criticized the majority for glossing over the circumstances surrounding the video in Belt, which differed from traditional instances where law enforcement testify about footage they generated. In Belt, the FBI agent did not create the footage, but downloaded it directly from the aunt’s Ring camera. In so doing, the agent did not obtain information about the camera make or model, the software application used, or whether the system recorded continuously or was motion activated. Without that information, the government failed to offer evidence supporting the conclusion that the camera was operating as designed….  From her perspective, the gaps impacted the video’s admissibility and not merely its weight.

Phil noted: “Judge Erickson called out the issue of deepfakes, observing that the ‘changing technological environment in which we live’ calls for a stricter gatekeeping function by trial courts given the reality of AI-generated videos.”

Phil also suggests that proponents need to be prepared to show the “provenance” of a video and wrote: “One way to do so is by collecting and preserving original native files rather than relying on informal file transfers like the download that took place in Belt.”  He also suggests documenting the make and model of the recording hardware, the software version, a chain of custody log, “and the operational parameters (such as whether the device records continuously or uses motion-activation sensors).”

Phil explains that: “Parties opposing the introduction of deepfake videos should ground their accusations in fact-specific evidence. This may very well require the retention of experts to evaluate the quality and nature of the recording at issue. In addition, the opponent (and its expert) may need to inspect the underlying file structure for the video to assess any number of issues, including whether the application permits media editing and whether the footage or feed was in some way manipulated.”

Phil’s suggestions are excellent, as they always are. Congratulations to Phil Favro on the Opening Favro Law PLLC (Jun. 16, 2025).  He is an amazing attorney, person, and resource.

One interesting authentication case is described in Evidence Sufficient to Demonstrate that Audio Recording Was Not a Deepfake (Mar. 23, 2026). I won’t repeat it all here.  The proponent authenticated a voice mail challenged as a deepfake with an affidavit from the company that owned the voicemail system, stating that it was accurate and unaltered, and with the lay proponent’s own affidavit stating voice recognition and additional details.  The party claiming that the recording was a deepfake refused to testify, and that said a lot.

There are several other great resources, the National Center for State Courts has published “bench cards.” Deepfakes – National Center for State Courts (Mar. 6, 2026).

Craig Ball has posted a wonderful guide.  Book Review: Craig Ball, “Forensic Tells: The Litigator’s Guide to Detecting Deepfakes and Authenticating Digital Evidence” (Mar. 7, 2026).

And, there are examples of forensic examination exposing deepfakes. Deepfakes Uncovered – iPhone 6 Could Not Have Captured the A.I.-Generated Evidence (Sep. 25, 2025)(“Here’s the problem for [plaintiff] Maridol Mendones: Apple did not introduce Apple Intelligence until iOS18 and required an iPhone 16, iPhone 15 Pro, or iPhone 15 Pro Max.”).

The Supreme Court of Maryland has answered affirmatively the question of Can a witness authenticate a video if the video contains images that the witness did not see? (Aug. 16, 2024).

Generally, video and photos can be authenticated by either the “pictorial evidence” or “silent witness” theory.[1]  “Pictorial evidence” generally requires a witness with knowledge.

The “silent witness” method “allows for authentication by the presentation of evidence describing a process or system that produces an accurate result. Specifically, a witness can testify to the type of equipment or camera used, its general reliability, the quality of the recorded product, the process by which it was focused, or the general reliability of the entire system.” Authentication of Surveillance Video by Lay Witness Under Silent Witness Doctrine (Dec. 9, 2024)(citation omitted).

That is precisely the technique Phil was describing.  His advice is spot on.

Maryland has also permitted authentication of a “composite” video. Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 (Sep. 1, 2024)(neither of the detectives witnessed the events about which they testified; however, they confirmed many facts in the video).

In Maryland, the Trial Court is a “Gatekeeper” But Not an “Armed Guard” (Jun. 25, 2022).

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[1] Video may be authenticated as a business record, by circumstantial evidence, or by a combination of methods, according to the Supreme Court of Maryland, and that list is not exhaustive.