The state’s highest court ruled that criminal defendants can obtain information about how facial recognition technology was used in an investigation, but not proprietary software details without a stronger showing of need.
The New Jersey Supreme Court issued a unanimous decision Wednesday clarifying what evidence prosecutors must disclose when facial recognition technology is used in a criminal investigation.
In State v. Tybear Miles, the court held that defendants are entitled to discovery identifying the facial recognition tools used by investigators and information showing how those tools were employed during the investigation. However, the court said defendants are not automatically entitled to proprietary information, such as the software’s source code.
Justice Lee A. Solomon Fasiciale, writing for the unanimous court, said the scope of discovery depends on the specific facts of each case and rejected a blanket application of a prior appellate ruling involving facial recognition technology.
Murder case led to discovery dispute
The case stems from a Jersey City homicide investigation in which Tybear Miles was charged with first-degree murder and weapons offenses.
According to court records, investigators relied in part on facial recognition technology after a confidential informant reviewed surveillance footage and identified two individuals by their nicknames. The informant also provided Instagram usernames connected to those individuals.
Police conducted a facial recognition search using one of the Instagram profile photographs. The search returned defendant Miles along with several other potential matches.
Investigators later interviewed multiple people, including Miles’ sister and former girlfriend, who identified him from surveillance images. The court noted that no video captured the actual shooting and no witness identified Miles as the shooter.
Court rejects automatic disclosure of source code
Defense attorneys sought extensive discovery related to the facial recognition system, including 13 categories of records similar to those ordered in a previous case, State v. Arteaga.
A trial judge granted the request, but the Supreme Court concluded that the lower court went too far in ordering disclosure of proprietary information at this stage.
“The Court disagrees with a mechanical application of Arteaga to all cases involving FRT,” the opinion states.
The justices ruled that prosecutors must disclose non-proprietary information about the technology and how it was used in the investigation because that material could be relevant to issues including identification reliability, investigative procedures, and potential third-party guilt.
However, the court said the current record does not establish that Miles has demonstrated a sufficient need for proprietary information such as source code.
Future requests still possible
The decision leaves open the possibility that defendants may later obtain proprietary facial recognition materials if they can demonstrate a particularized need.
The court cited the framework established in State v. Pickett, a case involving DNA analysis software, which requires courts to balance a defendant’s right to a fair trial against concerns involving trade secrets and proprietary technology.
On the current record, the justices said it is too early to determine whether access to source code or other proprietary information is necessary.
The ruling affirms part of the lower court’s discovery order while reversing the portion requiring disclosure of proprietary facial recognition materials.
Chief Justice Stuart Rabner and Justices Anne Patterson, Fabiana Pierre-Louis, Rachel Wainer Apter, Douglas Noriega, and Michael Noriega joined the opinion.
Key Points
• The New Jersey Supreme Court ruled that defendants can obtain information about facial recognition technology used in criminal investigations.
• Prosecutors must disclose non-proprietary details about the technology and how it was used in a case.
• The court held that proprietary information, including source code, is not automatically discoverable and requires a stronger showing of need.