Advocating for Transparency
Many commentators and citizens have raised significant concerns that the government’s use of facial recognition technology poses a threat to civil liberties and freedom of expression and association. Real-world events have called the reliability of this technology into question: In several high-profile incidents, innocent people have been arrested based on erroneous “matches” by facial recognition technology.
The firm’s amicus brief argues that the defendant should be permitted to seek and receive answers from the government about the reliability of the facial recognition technology.
The firm recently submitted a friend-of-the-court brief in the New Jersey Appellate Division in support of a defendant who seeks discovery on the reliability of the facial recognition technology that was used to implicate him in the robbery of a convenience store. In the underlying case, there was no independent evidence, physical or otherwise, that linked the defendant to the robbery. Detectives had surveillance video footage of the robbery, which captured an image of the perpetrator, but no evidence to establish the identity of the person in that footage. Ultimately, detectives constructed a photo array that included an image of the defendant, and his image was chosen by two eyewitnesses. The only reason detectives included the defendant’s picture in the photo array was that facial recognition technology tagged his picture as a “possible match” to the image generated from the surveillance video footage.
The Constitution gives criminal defendants the right to a meaningful opportunity to present a complete defense. To protect this right and ensure fair trials, New Jersey has adopted an open-file approach to information sharing between the prosecution and the defense. In line with this approach, the firm’s amicus brief argues that the defendant should be permitted to seek and receive answers from the government about the reliability of the facial recognition technology that produced the “possible match” to his photo and how that technology was used in his case. The defendant’s right to a fair trial depends on his access to this information. More generally, full discovery on the use of new technologies in the criminal justice system is necessary to minimize the likelihood of sending an innocent person to prison.
The appeal remains pending.
