Why AI is Making Digital Evidence Hard to Use in Campus Disciplinary Proceedings
| | Student Rights
Why AI is Making Digital Evidence Hard to Use in Campus Disciplinary Proceedings
We used to be able to believe what we could see with our own two eyes. There’s a famous photo of a scene from 1919 that looks impossible: a biplane flying through the Arc de Triomphe with just barely enough space to squeeze through. Seeing the image captured on film makes it believable. Even 100 years after that picture was taken, images in photos were still inherently believable to most people.
Then the use of artificial intelligence became so widespread that fake images could be generated by anyone with a phone. And then AI programs started generating images and information entirely on their own. These are sometimes referred to as hallucinations.
Now, we don’t trust anything. Artificial intelligence has led us to question both real and fake evidence. That can be a significant problem when using digital evidence to support your position in a campus disciplinary proceeding. It is important to understand how to authenticate your evidence as effectively as possible, which can be challenging, especially given the tight timeframe of campus disciplinary investigations and adjudications. Assistance from an experienced student defense attorney can often prove extremely beneficial.
AI Mimicry Can Be Used to Fabricate Evidence
Artificial intelligence software is able to copy the style of an individual and create messages, images, and even voice memos to fabricate digital evidence in a Title IX case or other incident where a student has been accused of violating a school’s code of conduct. AI can generate a text thread that is entirely fictitious. It can create explicit images that are presented as evidence of “sexting.” The programs can take sounds from voice recordings and generate voice memos that were never actually stated.
When a complainant or respondent in a case presents this type of AI-generated evidence, it is generally very effective at mimicking the actual speech patterns of the people who supposedly generated those messages. This makes it very difficult for a student to prove that they did not send the message. Proving a negative is always a challenge, but when the “evidence” is so realistic, the task becomes much harder.
This has been a consistent problem for students wrongfully accused of AI cheating. The programs that are designed to detect AI-generated content are often fooled. They flag content that was organically created by humans and skip over content that was skillfully created with artificial intelligence.
Now the problems in detecting AI-generated content are spilling over from academic integrity cases to other disciplinary matters, including accusations of sexual assault.
When Real Evidence is Dismissed as Fake
Students in campus disciplinary proceedings may need to not only disprove evidence that was artificially created but also defend the authenticity of genuine evidence. Just the fact that these AI capabilities exist and are easy to access and use makes it easy to claim that genuine screenshots or recordings are fake.
Most participants in campus disciplinary proceedings are not technical experts and may have no basis for assessing the authenticity of digital evidence. There is a temptation to dismiss all digital evidence from consideration once someone points out the possibility that it could have been fabricated. An experienced student defense attorney will often work with forensic technical experts who can trace digital evidence and provide data to support its authenticity. This can make a substantial difference in the acceptance of evidence and the outcome of the proceedings.
The Burden of Proof Can Complicate the Case
In a criminal case, the prosecution must prove every element of a crime beyond a reasonable doubt. However, the standard is not nearly as strict in campus disciplinary proceedings. Even in Title IX cases involving accusations of sexual violence where the consequences are extremely serious, the accusations do not need to be proven beyond a reasonable doubt. The school may establish a “clear and convincing evidence” standard or use the lowest standard, the “preponderance of evidence” standard. To find someone responsible for a violation, the decisionmaker only needs to find it more likely than not that a violation occurred. With such a low standard, the credibility and admissibility of every piece of evidence becomes vitally important.
When digital evidence can be easily fabricated or called into question because of its potential for fabrication, there can be a temptation to disregard all digital evidence. But when digital evidence is the most relevant to prove the assertions in a complaint or the defense against a complaint, that rejection of digital evidence can cause tremendous hardship. When an attorney can use tech evidence and arguments to bolster the veracity of digital evidence, it can support the student’s claim substantially.
Protecting Students’ Rights in Cases Involving Digital Evidence
Understanding how to use and disprove digital evidence is becoming increasingly important in all types of campus proceedings. Attorneys arguing to protect students accused of academic dishonesty frequently rely on technical evidence to demonstrate creative processes, including search history and the evolution of work product.
Accusations of other rule violations may benefit from the same level of technical support. Proving that a text chain or image is authentic or that a voice message was fabricated can directly impact the outcome of a Title IX case or other proceeding where a student has been accused of violating a school’s code of conduct.
The genie is out of the bottle for good in this instance, so it is important to understand how to deal with AI rather than dismiss digital evidence out of hand because of the potential for fraud. Students facing allegations would be wise to work with legal advocates who understand how to protect their due process and other rights, and to support their claims with the most effective arguments based on both legal and technical developments.
At Nesenoff & Miltenberg, we have been safeguarding the rights of students for decades, and we understand how to adapt legal strategies to leverage the prevailing judicial climate and how to engage technical experts to explain and support digital evidence. If you are facing an accusation of wrongdoing on campus or need to file a claim to assert your rights, it is important to act quickly, as campus disciplinary proceedings move quickly.
We invite you to schedule a confidential consultation to learn how our team could assist in your case. Just call us at 212-736-4500 or contact us online to get started.