In September of last year, the National Association of Criminal Defense Lawyers (NACDL) collaborated with the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC) to submit an amicus brief in the case of New Jersey v. Arteaga, expressing support for the defense.
The central issue presented to the Appellate Division was whether the defense should have access to details regarding the methodology employed in a facial recognition search that identified the defendant as the alleged perpetrator in the case. Initially, the defense’s argument was dismissed by the trial court.
On June 6th, the Appellate Division issued a decision that closely aligned with the arguments presented in the amicus brief co-authored by the National Association of Criminal Defense Lawyers (NACDL). In a reversal of the lower court’s ruling, the Appellate Division concluded that the defendant has the right to obtain the requested discovery, as established by the precedent set in Brady v. Maryland.
In their ruling, the court acknowledged the defendant’s expert testimony and the supporting evidence provided by the defense counsel and amici. These sources convincingly demonstrated the novelty of face recognition technology (FRT), the involvement of human agency in generating images, and the absence of any New Jersey court’s evaluation or finding of FRT’s reliability as evidence.
Consequently, the case has been sent back to the lower court with instructions to issue an order compelling the state to comply with the discovery request.
This groundbreaking ruling marks the first time an appellate court has acknowledged the requirement for Brady disclosure concerning this particular information, highlighting the imminent challenge that numerous courts will face due to the widespread implementation of face recognition technology in criminal proceedings.
By affirming a position that defense attorneys nationwide have been advocating for years, this decision holds significant weight at the appellate level. Notably, it includes compelling language emphasizing the state’s responsibility to disclose information regarding face recognition as an untested technology, thereby safeguarding the due process rights of defendants.
In a broader context, this landmark decision will serve as a valuable resource for defense attorneys who file discovery motions or seek to challenge the state’s utilization of face recognition technology in identifying their clients.
