Claiming Video Was "Deepfake" Not Enough to Require Excluding It, Even Absent Evidence of Who Recorded It
"Apart from trying to cash in on the so-called 'liar's dividend,' Amyda's counsel had little to work with."
From State v. Amyda, decided Friday by the Iowa Supreme Court, in a unanimous opinion by Justice Edward Mansfield:
In this sexual abuse case, we are asked to decide whether the district court erred in admitting a video. The video graphically shows the defendant abusing the victim. However, there was no chain-of-custody evidence connecting the video to the defendant. The victim was asleep at the time and could not personally attest to the abuse shown in the video. And the defendant claimed "deepfake."
On our review, we conclude that the district court did not abuse its discretion in admitting the video. The video came to the victim's attention about a month after the defendant had been in the victim's bedroom. The video appears to be taken by the perpetrator of the abuse at close range using a cellphone. It shows the victim sleeping, but she testified in detail that she recognized her bedroom, her bed and furnishings, the clothing she had been wearing, her legs and genitalia, and the defendant's tattooed hand—all as they had been that evening.
Collectively, these circumstances were enough to admit the video. And the defendant's mere speculation that the video was a deepfake was not enough to bar its admission….
The court concluded that the video had been adequately authenticated:
To authenticate the video, the State had to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Iowa R. Evid. 5.901(a). According to Iowa Rule of Evidence 5.901, one example of sufficient evidence is "[d]istinctive characteristics and the like." That is, evidence such as a video may be authenticated by its "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances."
We applied this circumstantial-evidence principle in State v. Holderness (Iowa 1980). Holderness, which predated the adoption of the Iowa Rules of Evidence, was a burglary case involving the admissibility of a photograph. There the victim awoke to find that his garage doors were open and some of his property was missing. One of the missing items was a briefcase that contained, among other things, an Instamatic camera. Two hours later a boy in the neighborhood brought by a roll of Instamatic film that he had found. The film was developed. It turned out to have eight photographs the victim had taken recently in the course of his work and two additional photographs. One of those two photographs showed the defendant on his knees in the victim's backyard, near the garage, holding the briefcase partially open.
We held in Holderness that the photograph portraying the defendant with the briefcase outside the garage was properly admitted even though no one could directly confirm its accuracy or testify as to how it was taken. We began our discussion by observing,
Conventionally these foundation elements [for admission of a photograph] are shown by the direct testimony of a person who, although perhaps not connected with the photography, observed the scene and testifies that the picture fairly shows it, or who describes the photographic process employed and testifies it produces accurate pictures. These of course are the easier cases.
The harder cases are those in which direct testimony is not available and the proponent must rely on circumstances to lay a foundation for admission.
This, of course, was one of the "harder cases." … [W]e held [in Holderness] that the photograph could be authenticated based on a series of circumstances. The roll of film had been recovered nearby, the morning after the burglary. The victim had taken the previous photographs on the roll but not the ninth and tenth ones. The victim could identify his boat and his trash-can rack in the photograph in question. He testified that—apart from the presence of the defendant—the scene corresponded to the outside of his garage at the time of the burglary. And the victim further testified that the camera in the past had taken reliable photographs that had never come back modified, altered, or changed.
A few years later, … we … [upheld] the admission of photographs in another case. There the defendant was charged with having committed sexual abuse on three children—two girls and one boy. At trial, a number of photographs depicting the sexual activity were admitted into evidence. Several of the photographs were admitted through the testimony of the two girls. They testified that the defendant, or one of them at the defendant's direction, had taken those photographs. They identified the defendant in the photographs. However, five of the photographs were admitted through the testimony of a detective, who had been neither a photographer nor a firsthand observer. We summarized as follows:
Although the detective was not, like the girl victims, a direct witness to the depicted activities, he had observed the defendant's bedroom where other photographs were taken and testified that the decor of the room pictured in some of the photographs was that of the defendant's bedroom. Moreover, the five photographs in question were graphically similar to the many photographs properly admitted during the victims' testimony.
We concluded that "[t]he detective's testimony about the decor of the room, together with the photographs authenticated by the victims, satisfied the foundational requirements for admissibility of the five photographs admitted during the detective's testimony." …
Turning to the facts of this case, we agree with the district court and the court of appeals that the State presented sufficient evidence to authenticate the video.
The video appears to be taken with a cellphone held in the right hand of the person whose left hand is visible committing sexual abuse. Clara had communicated with Amyda by messaging him that evening; presumably, he would have brought his cellphone to their encounter. Also, Clara fell asleep in her bedroom with Amyda after they both had been drinking; the video shows her face and closed eyes as she is sleeping soundly. Further, Clara identified Amyda's tattooed hand, her bedroom, her bed and pillows, her clothing, and her legs and genitalia in the video. Indeed, the only thing in the video that Clara couldn't personally verify was the abuse itself. Moreover, the video surfaced a little over a month after May 5, and when Clara tried to communicate with Amyda about it, he blocked her.
Amyda argues that "[a]llowing an individual to authenticate a video that portrays an event by simply identifying 'distinctive characteristics' of items in the video, without more, effectively erases any protection that Rule 5.901 provides against the admission of fabricated evidence." But the circumstantial evidence here went beyond just the distinctive characteristics of items in a video. Furthermore, the distinctive characteristics here ranged from the private (Clara's bedroom) to the shockingly private (her genitalia). What third-party fabricator would have access to all that?
As the court of appeals noted, appellate cases from other jurisdictions have upheld the authentication of videos [in such situations]….
We are not oblivious to the risks of video evidence. Like the New York Court of Appeals, we recognize that "most fabricated videos 'leverage' real details from real photos and videos of real places and people, then alter the pieces the person wishes to alter to create a realistic, but manipulated, video." In re M.S. (N.Y. 2026). In In re M.S., New York's highest court ruled, over two separate dissents, that videos of sexual abuse obtained by a self-described hacker and provided to law enforcement well after the events in question—had not been sufficiently authenticated and should not have been admitted in a family court case. But here, by contrast, there are no identifiable circumstances to suggest that the video might be a deepfake.
For all these reasons, we agree that the video was properly authenticated ….
And the court likewise rejected the argument that the video should have been excluded under the so-called "best-evidence rule":
[T]he best-evidence rule … provides, "An original writing, recording, or photograph is required to prove its content, unless these rules or a statute provides otherwise." The rules also contain the following qualification: "A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate."
The State relies on this qualification to rebut Amyda's best-evidence argument. The State maintains that the video here was admissible as if it were the original because Amyda failed to raise a genuine question of authenticity. We agree with the State that Amyda didn't raise a genuine question, only conjecture.
Much of the closing argument made by Amyda's counsel urged the jury to conclude that the video was a deepfake. Yet his advocacy rested on popular culture rather than any of the evidence in the case. The closing argument began, "Is it fake? Is it real? Ladies and gentlemen, we live in the age of artificial intelligence." It continued, "In this state of artificial intelligence, people can manipulate a video to look like whatever they want to look—they want it to look like." Amyda's counsel proceeded to refer to various news stories about celebrities and other people who had been the subject of deepfake videos, including deepfake pornography.
But apart from trying to cash in on the so-called "liar's dividend," Amyda's counsel had little to work with. {The term "liar's dividend" refers to the possibility that public awareness of deepfakes will make it easier to raise doubts about legitimate evidence. See Bobby Chesney & Danielle Citron, Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 1753, 1785–86 (2019) ("[A] skeptical public will be primed to doubt the authenticity of real audio and video evidence. This skepticism can be invoked just as well against authentic as against adulterated content.").} The prosecutor countered as follows in her rebuttal argument:
So when [defense counsel] is wa[ ]ving around articles and talking about deepfake porn, that is not evidence, ladies and gentlemen. That is not evidence. What is evidence is what you heard from that stand.
Fake video, imagine someone to make a fake video in this matter would have to know, as [Clara] described, the intrinsic details of her body.
Unfortunately, we had to talk a lot about private matters, right? They had her stretch marks on her legs that she identified. They had her vagina and the unshaven position as she recollected. They had stubble on her legs. They had her hair positioned as such.
They had her exact clothing that she would have been wearing the night she was with the defendant, and even more so, when he parted her labia, you can see that she has coloration down there. They would have to know all those intrinsic details to make up this video. Who would know that?
Accordingly, the district court did not abuse its discretion in overruling Amyda's best-evidence objection. See State v. Christian Church (Del. Super. Ct. 2025) ("The mere suggestion that a video may have been altered does not create such a genuine issue."); Perry v. United States (D.C. 2026) (indicating that the defendant needed to provide "some basis" to think that the Instagram video was an inaccurate reproduction)….
Joshua Henry (Iowa Assistant AG) represents the state.