72 Am. U. L. Rev. 277 (2022).

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Abstract

The debate surrounding law enforcement’s use of facial recognition technology (FRT) continues to raise concerns about accuracy, reliability, and equity. Nonetheless, law enforcement agencies continue to purchase, implement, and use FRT as an investigative tool to identify suspects and make arrests. Yet, its ability to enter the courtroom remains untested. Consequently, this Comment seeks to answer the question if FRT was presented as evidence, would it be admissible? To answer that question, this Comment uses the arrests following Black Lives Matter (BLM) protests and the January 6th insurrection. These two events provide contrasting FRT software algorithms, racial compositions, and law enforcement jurisdictions which turn admissibility.

First, the Comment delves into the science of FRT and its development, regulation, and use by law enforcement. Next, the Comment examines the Daubert standard for expert, evidence and the Federal Rules of Evidence rules 702 and. 403, which a court will use to evaluate FRT. Then with the groundwork laid, the Comment uses the BLM protests and the January 6th insurrection to argue that demographic differences, specific law enforcement policies and training, and the development and testing of the different FRT software programs will turn admissibility. The Comment concludes that FRT is admissible evidence in the case of January 6th but not BLM because of these differences. This unequal result displays the need for legislative solutions addressing FRT’s use and regulation to ensure consistent treatment in the future.

* Executive Editor, American University Law Review, Volume 72; J.D. Candidate, May 2024, American University Washington College of Law; M.B.A., 2019, University of Delaware; B.S.M.E., 2008, University of Delaware. This would not have been possible without the unwavering support of my parents, John & Robin Elliott and Cleo Powell. My deepest gratitude to James Elliott and Milton Powell Jr. for never letting me forget the importance of my voice. Finally, to Quinn, Celine, and Trace, you all give me perspective and purpose.