Face-to-face with facial recognition evidence: admissibility under the post-Crawford confrontation clause.

• Author: Celentino, Joseph Clarke
• Position: NOTE

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the technician who conducted the test. This Note explores the implications of Crawford and its progeny through the lens of one piece of forensic evidence: facial recognition technology. As facial recognition technology continues to gain purchase as a law enforcement tool, prosecutors are increasingly likely to attempt to introduce such evidence in court. Recognizing the interpretative difficulty created by the deep divides that remain on the Court over the proper scope of the Confrontation Clause, this Note argues that, under the Crawford framework, facial recognition evidence is testimonial and, therefore, requires confrontation.

Table of Contents Introduction I. The Ever-Increasing Use of Facial Recognition Technology A. A Rapidly Advancing Technology B. Imminent Courtroom Applications C. Key Features of Facial Recognition Technology II. Modern Confrontation Clause Doctrine A. Historical Confrontation Clause Interpretation and Crawford's Contribution 1. Before Crawford 2. Crawford v. Washington B. The Ambiguous Meaning of Testimonial Post-Crawford 1. The Primary Purpose Test 2. Application to Forensic Laboratory Reports C. The Hearsay Requirement III. Facial Recognition Evidence Requires Confrontation A. Facial Recognition Evidence is Hearsay 1. Facial Recognition Evidence Will Usually Contain Statements of the Laboratory Technician Who Conducted the Analysis 2. Facial Recognition Evidence Will Almost Always Be Offered for Its Truth B. Facial Recognition Evidence Is Testimonial 1. Primary Purpose Test 2. Specific Application of Melendez-Diaz and Bullcoming C. Implications for the Admissibility of Facial Recognition Evidence Conclusion Introduction

On June 15, 2004, a jury deadlocked on rape charges brought by Massachusetts prosecutors against Darrin Fernandez. (1) DNA evidence connected Darrin to semen recovered from the victim and Darrin had recently been convicted of a break-in and another rape, both of which occurred in the same neighborhood as the rape with which he was charged. (2) The case seemed straightforward. But the jury failed to reach a verdict because Darrin had a twin brother, Damien Fernandez. (3) A juror in Darrin's trial told the Boston Globe: "The fact that the DNA matches both identical twins created some doubt in all of our minds...." (4) A second jury deadlocked several months later. (5) Prosecutors were eventually able to convict Darrin of the rape in 2006, only after presenting new evidence about his other crimes, including the testimony of the earlier rape victim. (6)

DNA analysis has revolutionized criminal investigation and prosecution. It has been used to secure thousands of convictions (7) and hundreds of exonerations. (8) And jurors put immense stock in forensic evidence, potentially more than in eyewitness testimony. (9)

But such forensic evidence is by no means perfect. Samples of genetic material may never be found (10) or may be tainted. (11) Even when tests are conducted properly, analysts may disagree about the results. (12) Fraud is possible, particularly when the examiner knows the identities of all parties whose samples are tested. (13) The identical DNA of twins, although uncommon, may thwart analysts. (14)

Facial recognition technology--that is, computer programs that can identify a person based on a photograph or video still--may be able to pick up where other types of forensic evidence leave off. Imagine that Darrin had been caught on film breaking into any one of the three homes he was ultimately found to have entered. Simply introducing a still image from this video in court would suffer from some of the same deficiencies as DNA evidence, because a jury would be equally unable to distinguish Darrin Fernandez from Damien Fernandez. But a computer program can tell the difference; facial recognition technology can even distinguish between identical twins. (15) Had Darrin been caught on film, facial recognition evidence might have positively identified him and saved significant prosecutorial and judicial resources. (16)

Facial recognition technology is currently in widespread use and has significant private and governmental applications. (17) The technology is already used to identify suspects and solve crimes. (18) As higher-quality cameras become more cost effective and facial recognition algorithms become more accurate, (19) law enforcement agencies will seek to use facial recognition evidence for more than just criminal investigation. (20) After all, "[s]ome law enforcement agencies estimate that up to a quarter of complaint cases contain face images of the suspect or an accomplice. This number is significantly higher than for latent fingerprints or DNA samples." (21) Prosecutorial use is therefore imminent.

But major hurdles still stand between facial recognition evidence and the courtroom. For instance, under the Federal Rules of Evidence, scientific evidence must be reliable and may require expert testimony to lay a sufficient foundation. (22) Because facial recognition evidence is relatively new, criminal defendants will likely challenge its reliability. (23)

In addition to challenging facial recognition evidence under the rules of evidence, criminal defendants may also invoke their constitutional right under the Confrontation Clause to keep such evidence out of court. This is especially likely given the Supreme Court's recent strengthening of the protections provided by the Confrontation Clause, a major shift that began with Crawford v. Washington (24) in 2004. (25)

This Note seeks to define the relevant Confrontation Clause framework for the use of facial recognition technology in court. Specifically, this Note argues that facial recognition evidence is subject to the Sixth Amendment's procedural guarantee of confrontation. Part I explores the rapid development of facial recognition technologies and the potential uses of those technologies in court. Part II presents the modern Confrontation Clause framework and discusses the two basic requirements that must be met for the Clause to apply to a piece of evidence: the evidence must be hearsay and the evidence must be testimonial. Part III argues that facial recognition evidence meets both requirements and confrontation is thus required. This Part also briefly explores several avenues prosecutors may use to admit facial recognition evidence if a court finds it testimonial.

1. The Ever-Increasing Use of Facial Recognition Technology

   In 2001, surveillance cameras captured the faces of more than 100,000 football fans attending the Super Bowl as they entered Raymond James Stadium in Tampa, Florida. (26) Police used facial recognition technology on the footage and were able to detect nineteen petty criminals, though they made no arrests. (27) Intended to test the counterterrorism ability of facial recognition, the Super Bowl program became one of the first highly publicized deployments of facial recognition technology. (28)

   Since this public debut in 2001, facial recognition technology use has become common--both by private entities and government agencies. (29) Police in both the United States and the United Kingdom already deploy automated facial recognition systems. (30) The technology has proven an especially effective tool for identifying and apprehending criminals. For example, "researchers at Michigan State University were able to quickly identify one of the Boston Marathon bombing suspects from law enforcement video...," (31) Indeed, facial recognition's substantial law enforcement applications have been a driving force behind the technology's accelerated development.

   This Part discusses the development of facial recognition technology and its potential application in criminal proceedings. First, it chronicles advancements in the quality of facial recognition algorithms and the growth of facial identification databases, highlighting the degree to which government involvement and investment has been critical to the technology's development. Then, it describes potential courtroom applications of the technology, many of which are already in use. Finally, it defines the steps in the implementation process of facial recognition technology in order to identify which steps will be most relevant in the Confrontation Clause analysis.

   1. A Rapidly Advancing Technology

      Facial recognition technology has developed tremendously over the past two decades. The algorithms for identification have increased dramatically in accuracy and efficiency, and the databases containing facial information have grown substantially. It is no accident that these developments enhance the value of the technology for law enforcement purposes--as it is precisely governmental entities that funded and facilitated the development of the technology in the first place.

      The United States government is intimately involved in the technology's development. In 1993, the Department of Defense's Counterdrug Technology Development Program sponsored the Face Recognition Technology (FERET) program, which was designed to spur commercial applications of the technology and create universal data standards. (32) As part of continuing efforts to integrate facial recognition systems, the federal government maintains a registry of recommended standards, and government use of facial...