Should an AI video of a victim impact statement be accepted by a court? An Arizona court said yes. The Court of Appeals said otherwise.

Filed last week, the Arizona Court of Appeals (Division One) affirmed the manslaughter conviction of a man convicted in a road rage incident but vacated the sentence and ordered a new sentencing hearing after concluding that “the AI video was not reliable”.

As I reported last May, the AI video was a victim impact statement from the victim himself, which was created by the victim’s sister, who used AI to recreate her brother so that he could appear to give what felt like his own “actual” victim-impact statement at the sentencing of the man convicted of killing him.

The AI avatar of the victim spoke of forgiveness which caused the Court to say: “I loved that AI. Thank you for that, and as angry as you are and justifiably angry as the family is, I heard the forgiveness and I know Mr. Horcasitas appreciated it, but so did I.”

Despite the fact that the prosecutor asked for “a slightly mitigated sentence of 9 years’ imprisonment” (defense counsel asked for 7 years), the Court imposed the presumptive maximum term of 10.5 years in prison.

In considering the defendant’s challenge of the use of the AI video of the victim impact statement, the Arizona Court of Appeals compared this case to another where the Arizona supreme court considered, among other things, whether two photographs taken of a homicide victim’s young sons at his gravesite were improperly admitted as victim impact evidence, finding that while they were “uncomfortably close” to “cross[ing] the line between permissible and unduly prejudicial,” the trial court did not err by considering them.

As for this case, the Court of Appeals stated: “By contrast, the AI video crossed that line. Unlike the photographs in Rose, which captured a particularly poignant moment for the young surviving victims, the AI video here (excluding the embedded “real” videos of the victim) does not reflect actual events. Indeed, rather than documenting an event or recording a particular moment, the AI video presents a depiction of the victim and his thoughts created from the imaginings of the victim’s sister.”

Continuing, the Court stated: “Moreover, despite the explanations concerning the genesis of the AI video, it presents the statement (including non-verbal communications made through facial expressions and the like) as coming directly from the victim. It erases the interpretive distance between the family’s belief about what the victim would have said and the victim’s own voice and opinions. Indeed, the AI victim stated, ‘this here is a true representation of who I was, you know, not how the courtroom portrayed me.’ No disclaimer could cure that error.”

Noting that the AI video of the victim impact statement “clearly impacted the sentencing judge”, the Court concluded: “In sum, while the embedded ‘real’ video footage of the victim was permissible, allowing the presentation of the AI video constituted fundamental error. And on this record, the judge’s consideration of the AI video so prejudiced Horcasitas as to render the sentencing procedure fundamentally unfair. Accordingly, we vacate the sentence for manslaughter and remand for resentencing.”

I have to admit that I was uneasy about the idea of an AI avatar of the victim providing a victim impact statement. It’s a leap (even by his own sister) to assume what the victim might have said if he were still alive.

Hat tip to Judge Scott Schlegel for the heads up on this ruling. He covered it here.

So, what do you think? Did the Court make the right ruling? Please share any comments you might have or if you’d like to know more about a particular topic.

Image from People Magazine via Christopher Pelkey’s Facebook page.

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