Match Up: Increasing Disclosure of Facial Recognition Technology with Criminal Discovery Rules
Discovery, Technology, Criminal Law
Constitutional Law | Law
Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense counsel's ability to pursue mistaken identity defenses.
This Note argues that defendants need a legal mechanism to gain access to information on FRT results and that discovery may be one such mechanism. Although some scholars argue that certain FRT results constitute Brady material, less scholarly attention has been paid to the extent to which different discovery rules could enable defense counsel to access FRT results viewed as part of the investigation.
This Note examines the feasibility of obtaining FRT results under Brady, contending that Brady is not the most practicable vehicle for defendants to obtain FRT results. This Note then summarizes and compares discovery rules in five different jurisdictions, arguing that under current discovery regimes, there are likely significant barriers to defendants attempting to discover FRT results except in certain "open file" jurisdictions with broadly tailored rules. This Note concludes by recommending that jurisdictions amend their discovery rules so that content like FRT results is more readily discoverable.
Paget Barranco, Match Up: Increasing Disclosure of Facial Recognition Technology with Criminal Discovery Rules, 18 Duke Journal of Constitutional Law & Public Policy Sidebar 119–152 (2023).
Available at: https://scholarship.law.duke.edu/djclpp_sidebar/225