Proposed Montana Deepfake Rule

Proposed Montana Deepfake Rule
Image: EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael D. Berman.]

The Montana Commission on Rules of Evidence has amended its proposed rule of evidence to address deepfakes. 

Based on public comments, proposed Rule 901 was “modified to avoid confusion where a judge, not a jury, is the fact-finder.” In re Montana Commission on Rules of Evidence, 2026 WL 2996761 (Oct. 5, 2026).

The Commission’s proposal states:

If a party challenging the authenticity of an item of evidence demonstrates to the court that a jury-reasonably reasonable factfinder, could find that the item has been fabricated, in whole or in part, by generative artificial intelligence, the item is admissible only if the proponent demonstrates to the court that it is more likely than not authentic.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.

Author

  • Michael Berman

    Michael Berman is a practicing lawyer and an adjunct faculty member at the University of Baltimore School of Law.  He has published extensively, including as the editor-in-chief and a contributing author in “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020), co-editing two American Bar Association books on electronic discovery, as well as co-authoring law review and other articles regarding electronically stored information (“ESI”).  He has presented widely in venues ranging from local to National events and served as a Court Appointed ESI Discovery Supervisor for ESI Protocol.

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