US judicial panel advances proposal to regulate AI-generated evidence
The U.S. Judicial Conference's Advisory Committee on Evidence Rules in Washington, D.C., voted 8-1 in favor of seeking public comment on a draft rule designed to ensure evidence produced by generative AI technology meets the same reliability standards as evidence from a human expert witness.
The proposed rule is designed to address concerns about the reliability of the processes used by computer technologies to make predictions or draw inferences from existing data, akin to issues courts have long addressed concerning the reliability of expert witnesses' testimony.
The reliability of testimony of expert witnesses who rely on such technology is already subject to scrutiny under the Federal Rules of Evidence. But the rules do not currently cover what would happen if a non-expert witness used an AI program to generate evidence without any knowledge of its reliability.
Under the proposal, AI and other machine-generated evidence offered at trial without an accompanying expert witness would be subjected to the same reliability standards as expert witnesses, who are governed by Rule 702 of the Federal Rules of Evidence. The rule would exempt "basic scientific instruments."
The proposal now goes to the Judicial Conference's Committee on Rules of Practice and Procedure, the top judicial rulemaking body, which will vote at its June meeting on whether to publish the proposal for public comment.
Some judges expressed uncertainty about whether such a rule should ultimately be adopted, and a representative for the U.S. Department of Justice, Elizabeth Shapiro, was the lone vote against it, citing concerns about how it would be deployed.
But committee members expressed a general view that they needed to at least get a draft rule out for public comment in order to gather information and avoid having the normally years-long rulemaking process prevent the judiciary from keeping up with the evolving technological landscape.
U.S. District Judge Jesse Furman, a Manhattan-based judge who chairs the panel, said he was unsure whether he would ultimately back finalizing the rule but was "genuinely interested in what the world has to say about this thing."
"I think sometimes when you put something out for notice-and-comment there's kind of an assumption that it's a train that's moving forward to final approval," Furman said. "Here I think there are a lot of questions that we need to work through."
The proposal comes amid broader efforts by federal and state courts nationally to address the rise of generative AI, including programs such as OpenAI's ChatGPT that are capable of learning patterns from large datasets and then generating text, images and videos.
Chief U.S. Supreme Court Justice John Roberts in his end-of-the-year annual report in December 2023 cited the potential benefits of AI for litigants and judges while saying the judiciary would need to consider its proper uses in litigation.
US judicial panel wrestles with how to police AI-generated evidence
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