Dallas Bar Association
HEADNOTES |
|
May 2020 Volume 45 Number 5
Bar Mourns the Passing of Karen McCloud BY ANDREW M. JONES
Focus
Focus | Criminal Law/Trial Skills
Criminal Law/Trial Skills
Teasing Truth Out of Deep Fakes BY SANFORD HOLMES
Lawyers in Dallas and beyond are mourning the passing of Karen Danielle McCloud, whose service to the legal profession and community was enormous and will not be forgotten. McCloud, who passed away on April 9, had recently commenced her role as First Vice President to the Dallas Bar Association, which per custom put in her line to serve as DBA President in 2022. This final role followed years of exceptional involvement and service to the Dallas Bar and other legal organizations, and to the community in general. “We lost the heartbeat of the Dallas Bar Association with Karen’s passing,” noted President Robert Tobey at the DBA’s April board meeting. “She did things that no lawyer has done before,” he explained. “She was a force, a steady presence, a mentor, and a friend.” Born and raised in Houston, McCloud attended the Incarnate Word Academy. She went on to earn a degree in political science from the University of Texas in 1994, and she remained a proud Longhorn fan for life. McCloud received her law degree from Georgetown University in 1999 and returned to Texas, where she practiced law and served her community for more than 20 years. McCloud practiced employment law with a focus on employees. She practiced in large firms, boutiques, and as a sole practitioner. She was admitted to the U.S. District Courts in the Northern, Eastern, and Southern Districts of Texas, and to the U.S. Bankruptcy Court for the Southern District of Texas. She was a member of the DFW-National Employment Lawyers Association and the Texas Employment Lawyers Association. While a successful attorney, McCloud had a heart for service. In this regard, she provided consistent leadership in a multitude of professional organizations, including her role as President of the Dallas Women Lawyers Association (DWLA) in 2004 after many years of service to the organization, and to the J. L. Turner Legal Association (JLTLA), for which she served as President in 2010. Among her notable accomplishments with JLTLA were her efforts with other attorneys and the local judiciary to establish a JLTLA Trial Academy. Also very active in the Dallas Association of Young Lawyers (DAYL), Karen served as Director of DAYL for several years and received the DAYL Outstanding Director Award in 2007. She went on to serve as DAYL President in 2008. Notably, McCloud provided mentoring and leadership as a Facilitator for the DAYL Leader-
Karen McCloud
ship Class for more than 14 years. She was involved with the DBA’s Equal Access to Justice Campaign for many years, eventually serving as CoChair for the 2016-2017 campaign, in which more than $1 million dollars was raised in support of legal services to the underprivileged. She was also an active participant in the Dallas Volunteer Attorney Program for many years. McCloud served on the DBA Board of Directors for more than 12 years, with assorted positions culminating in her most recent position as Fi rst Vice President. Previously, she served as Chair of the Judiciary, Judicial Investiture, and Lawyer Referral Service Committees, Chair of the Solo & Small Firm Sction, and as Board Advisor to the Family Law Section, just to name a few. She is a Life Fellow of the Dallas Bar Foundation and a Founding Fellow of the DAYL Foundation. McCloud’s efforts and service resulted in a number of awards and honors. In recognition of her service, McCloud received the DBA JoAnna Moreland Outstanding Committee Chair Award and the DAYL Outstanding Board of Director Award. She also received the DBA’s Outstanding Minority Attorney Award, the JLTLA Outstanding Mentor Award, the 2015 DWLA Outstanding Lawyer/Small Firm Award, and the 2019 JLTLA Dallas Black Women Attorneys Charlye O. Farris Award. McCloud was the third AfricanAmerican, and only the second AfricanAmerican female, to attain the position First Vice President of the DBA in its 147year history. She is also the only attorney to have served as President of DWLA, DAYL, and JLTLA, and to have served as First Vice President of the DBA. The DBA will host an appropriate ceremony to honor Karen McCloud’s legacy and service at a later date. HN Andrew M. Jones is Senior Director, Legal Counsel for Epsilon Data Management, LLC (Publicis Groupe) and CoChair of the DBA Publications Committee. He can be reached at andrew.jones@epsilon.com.
The landscape is shifting for trial evidence. Recent changes to FRE 902 (13) and (14) represent an early effort to head off a real authentication issue on the legal horizon presented by the ability of Artificial Intelligence to alter and create false images, recordings, and video. Litigators can find their investigators misled and their discovery efforts significantly delayed. More disconcertingly, jurors and other fact finders may come to doubt the trustworthiness of an evidence type they have come to rely on heavily. Deep fakes are a troubling media trend made possible by advancements in artificial intelligence and machine learning over the past few decades. Notorious for their spread in the pornographic arena—where perpetrators paste the faces of celebrities or private citizens onto the bodies of porn stars—they have also been used to generate false news reports or perpetrate hoaxes involving public figures. Deep fakes use video, sound, or as few as 300 images to digitize a likeness. Artificial intelligence then maps crucial points on a target video and matches them to the digitized likeness in a manner reminiscent of the movie magic behind The Lord of the Ring’s Gollum or the digital key used to unlock a mobile phone. Improved processing power and widely available programs have democratized and sped up this process, so what was once a million-dollar Hollywood trick is now available to the creative hobbyist, the determined internet troll, or seemingly any immoral public actor with an internet connection. What happens when these creations are purposefully or unwittingly introduced to a lawsuit? They present numerous complications for both civil and criminal litigators, whether proving or disputing the authenticity of video evidence, maintaining jurors’ faith in video evidence, or expending time shoring up proof that once spoke for itself. What steps should you consider and how do you use the 2017 amendments to FRE 902 effectively? First, practitioners should be aware that Federal Rule of Evidence 902 was amended in 2017 to include a method for self-authentication of electronic data/records. Specifically, Rule 902, Paragraph 13 provides for authentication of electronic records by a qualified person when produced by a reliable electronic process. Paragraph 14 provides for authentication of data by a process of digital identification and certified by a qualified person. Crucially, these amendments encourage the determination of admissibility before trial, thus serving
Inside 8 Criminal Law 101 14 Mental Health Awareness Month 18 Staying “Reasonable” with 18.001 after September 1, 2019 27 Judicial Clemency vs. Expunction vs. Nondisclosure
to minimize the doubt induced in the trier of fact. (Practitioners should understand that Texas has not adopted its own state version of this Rule.) Second, practitioners should utilize an ounce of prevention. Endeavor to shorten the chain of custody on all authentic video to: 1) the recording device, 2) qualified eDiscovery storage companies, and 3) the eyes of the jury. Make chain of custody a standard part of your discovery requests to opposing parties. Understand the storage protocols of your eDiscovery company. Where and how is data kept? How do they record any access or alterations to that data (e.g., using a Blockchain-type ledger system)? Third, evaluate media by multiple methods. Begin by assessing the media’s metadata (device used, date created/modified, location) and request such data if it was not accurately provided with the original. Review all media as soon as it is received for completeness, changes in resolution, and other visual oddities. Visual cues include shadows in the wrong place or hair or clothing movement that is incongruous with the environment. Any such red flags—or suspicion of a particularly well-done fake—may call for the use of an expert skilled in more detailed analysis and deconstruction of video evidence. Fourth, FRE 902 (14) was intended to accommodate the use of established methods like hash values to authenticate an electronic copy, but it also allows for the use of future technologies. In today’s fluid environment, eDiscovery companies use high-powered processing and cutting-edge findings to analyze suspect videos. These sophisticated methods include identifying nearly invisible face-warping or inconsistent head poses created by deep fake processing. Thus, a reliable expert will be both analytical and creative when evaluating a suspect sample. Lastly, utilize a multi-layer trial strategy for your media evidence. Whether you are in state court or unable to self-authenticate, you’ll need a solid plan for admission and advocacy. The upshot is to keep the issue of the suspect media’s authenticity outside the presence of the jury whenever possible by pre-trial hearing, Motion in Limine, or another hearing outside their presence. If unsuccessful, your argument to the trier of fact must emphasize their role in deciding what is real in this new reality. Nonetheless, the goal should be to avoid making a jury answer that old Marx movie question: Who you going to believe, me or your lying eyes? HN Sanford Holmes is the principal at the Law Office of Sanford Holmes and can be reached at attyholmes@gmail.com.
Need Help? You’re Not Alone. Texas Lawyers’ Assistance Program…………...(800) 343-8527 Alcoholics Anonymous…………………………...(214) 887-6699 Narcotics Anonymous…………………………….(972) 699-9306 Al Anon…………………………………………..…..(214) 363-0461 Mental Health Assoc…………………………….…(214) 828-4192 Crisis Hotline………………………………………..1-800-SUICIDE Suicide Crisis Ctr SMU.…………………………...(214) 828-1000 Metrocare Services………………………………...(214) 743-1200 More resources available online at www.dallasbar.org/mentalhealthresources