With an increasing number of police departments across the country turning to unregulated, untested, and flawed facial recognition technology to identify suspects, it is vital defenders understand the technology, its limitations, and how to challenge its use in their cases.

Subject matter experts and litigators from NACDL’s Fourth Amendment Center explain and discuss some of the important digital technology issues that defense counsel will very likely encounter in these cases. The faculty focus on reverse searches, facial recognition, and device searches.

Police officers often rely on facial recognition searches as the primary piece of evidence tying a defendant to a crime, and thus defendants should be permitted to challenge the facial recognition search process. The limited case law on the discoverability, reliability, or admissibility of facial recognition is inconsistent at best. Based on the risk of misidentification, Clare Garvie suggests several steps defense counsel should consider pursuing in facial recognition cases.

Police officers increasingly are deploying novel surveillance tools, such as cell-cite simulators, to gather evidence. Even when courts acknowledge that the surveillance was unconstitutional, often they decline to suppress the evidence based on the good-faith exception to the exclusionary rule. Laura Moraff offers three arguments defense attorneys can make when challenging the application of the good-faith exception in cases involving novel search technologies.

20^th Annual State Criminal Justice Network Conference
August 18-20, 2021 | Held Virtually

Police departments across the country are increasing using predictive algorithms to decide where to patrol and who to investigate. These tools are also being used to create databases that label people as threats and feed them into the criminal legal system.

NACDL's 19th Annual State Criminal Justice Network Conference
August 17-19, 2020 | Held Virtually
When Robocop Becomes Reality: Confronting Technology in the Criminal Justice System

(Pre-Search Instructions and Post-Search Reasonableness)

A Report by NACDL’s Fourth Amendment Advocacy Committee Reporter, Steven R. Morrison [Released July 2014]

The Fourth Amendment has entered the digital age. New surveillance technologies and programs — from GPS tracking devices to automated license plate readers to bulk data collection — have upended traditional law enforcement practices and created new challenges for defense lawyers. This report offers an overview of this symposium and the substantive areas of concern related to new technological and legal changes that impact Fourth Amendment protections in criminal cases. [Released June 2016]

In response to a series of high-profile police killings of unarmed people of color, law enforcement agencies across the country began adopting body cameras as a solution to requests for more transparency and accountability. In order to study the impact of body cameras on the rights of the accused, the National Association of Criminal Defense Lawyers established a Body Camera Task Force comprised of defense attorneys from across the country. [Released March 2017]

How Data-Driven Policing Technologies Entrench Historic Racism and 'Tech-Wash' Bias in the Criminal Legal System

This NACDL Predicative Policing Task Force Report (1) calls attention to the rapid development and deployment of data-driven policing; (2) situates data-driven policing within the racialized historical context of policing and the criminal legal system; (3) makes actionable recommendations that respond to the reality, enormity, and impact of data-driven policing; and (4) suggests strategies for defense lawyers in places where data-driven policing technology is employed.

NACDL opposes the use of facial recognition technology by law enforcement.

NACDL continues to oppose the use of face surveillance in California.

NACDL is working with partners to oppose efforts to expand the use of facial recognition technology in Virginia.

Coalition letter to the Virginia House of Delegates and the Virginia Senate regarding proposed legislation to allow law enforcement to use facial recognition technology for criminal investigations. 

Brief of Amici Curiae Electronic Privacy Information Center, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers in support of Defendant-Appellant.

Argument: In this case of first impression, appellant argues that information about the technology and procedures underlying a facial recognition search must be disclosed to the defendant to cure the risk of misidentification and in accordance with Brady v. Maryland, even if the result of the search was used only investigatively, subject to later corroboration, and not admitted into evidence. The amicus brief explains the numerous opportunities for error present in the facial recognition process, and how error in that process determines the course of the investigation and results in racially disparate and otherwise wrongful arrests. NACDL’s Fourth Amendment Center has been working to better understand how defendants’ due process rights are impacted by the growing use of facial recognition technology and to equip defense attorneys with the knowledge and tools to combat resulting Brady violations.