A Florida state appellate court will soon decide whether to appeal a guilty conviction of a man who was identified by police using a controversial police surveillance program. The controversial facial recognition program was used by the Jacksonville Sheriff's Office to find a man who was accused of selling drugs. Now, the First District Court of Appeals is set to break new legal ground in deciding if police are allowed to use facial software to identify suspects in crimes without notifying the defense first.
The Crime & Conviction
The suspect, in this case, was convicted in May of 2016 for the crime of selling $50 worth of crack in 2015. He was found guilty due to undercover detectives from the Jacksonville Sheriff's Office accessing a statewide biometric database of faces that is run out of Pinellas County Sheriff's Office. This database extends to anyone who has taken a driver's license photo in the state of Florida, whether you have a criminal record or not.
Detectives were stumped prior to using the technology, but through it, they were able to pull from the database the information of people who shared facial characteristics with the suspected drug criminal. From this photographic information, they were able to identify the accused as the suspect in the case.
Questions from the Defense
The use of this technology raises a couple questions in criminal defense. For example, was the state required to turn over photos of other matches that came through the software, and was the identification process adhering to legal standards?
The defense is appealing this case based on the idea of "Brady Material." This concept is named after the U.S. Supreme Court case that established the requirement that the prosecution in each case must turn over evidence that might exonerate the defendant. The defendant, in this case, is arguing that if there were other matches that showed up after using the facial recognition software, those photos should have been provided by the prosecution during the initial trial.
According to the defense, the prosecution did not proactively disclose the way that the suspect was identified and even claimed that it was through a mug shot system, different than the database that was actually used. Additionally, the defense claims that there were photos of four other potential suspects that were produced by the database, which fit the definition of evidence that may have been used to exonerate the suspect but was not turned over at any point during the trial.
According to the state, the undercover detective only considered one of the photos as the photo of the suspect, and that was the one of the defendant. Also, the State Attorney and the Jacksonville Sheriff's Office does not have a current policy on facial recognition technology used in criminal cases, instead, the technology is used as an "investigative tool" in order to generate leads in these cases.
The state claims that there was no doubt who the suspect was based on the other photos, and therefore the other photos played no part in the detectives' identification of the defendant.
Breach of Privacy?
Privacy advocates are concerned that there may be a lack of safeguards on this type of technology to prevent a misuse in cases involving the use of facial recognition software to identify suspects.
The basis of the appeal from the defense is that the state's failure to disclose the other photos of the men who shared a similar facial profile to the defendant is a breach of the Brady Material requirement, and also prejudiced the defense's ability to defend against the charges, and this denied the accused due process under the law.
If you are convicted of a crime and you feel as though the conviction was wrongly awarded, you may eligible for post-conviction relief, which often refers to measures taken when the accused was denied a fair trial for a host of reasons. It's important to contact an experienced post-conviction relief defense attorney who can evaluate your case.
Conarck, B. (2018, March 12). Police surveillance technology under fire in appeal. Retrieved March 21, 2018, from http://www.jacksonville.com/news/20180312/police-surveillance-technology-under-fire-in-appeal