Face-to-Face with Facial Recognition Evidence: Admissibility Under the Post- Crawford Confrontation Clause

IntroductionOn 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.6DNA analysis has revolutionized criminal investigation and prosecution. It has been used to secure thousands of convictions7 and hundreds of exonerations. 8 And jurors put immense stock in forensic evidence, potentially more than in eyewitness testimony.9But such forensic evidence is by no means perfect. Samples of genetic material may never be found10 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.14Facial 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.16Facial 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.23In 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 shiftthat began with Crawford v. Washington24 in 2004.25This 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. …