Volume 57

Facing the Future: Facial Recognition Technology Under the Confrontation Clause

by Emma Lux

In 2015, two undercover police officers purchased cocaine from an African American individual and snapped several photographs of his face. Unable to identify the individual’s name, police sent the photograph to an analyst who used a facial recognition program to determine whether the face looked like any mugshots in the county database. The algorithm returned Willie Lynch’s face as a match, but indicated “only one star of confidence” that the match was correct.

The prosecutor in Lynch’s case did not seek to introduce the facial recognition results at trial, instead relying on in-court identifications by the officers. However, the day where prosecutors seek admission of facial recognition evidence to identify criminal defendants at trial is growing closer. What happens when a prosecutor wants to tell a jury that a facial recognition algorithm matched Willie Lynch to the image of the perpetrator?

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