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Prosecutors should disclose use of facial recognition technology in criminal cases to ensure a fair trial, amicus brief argues

January 31, 2025

In a criminal case, the prosecution must disclose evidence that is favorable to the defense and that could affect the case’s outcome. This precedent, set in Brady v. Maryland, is intended to ensure a fair trial. But the Brady rule is often violated when prosecutors fail to adequately disclose the use of facial recognition technology in identifying potential suspects. The Public Justice Center, Maryland Criminal Defense Attorneys’ Association, and the Baltimore Action Legal Team weighed in on this concerning practice in an amicus brief in Johnson v. State of Maryland, filed in the Appellate Court of Maryland in December. The case involves the State’s belated disclosure of its use of artificial-intelligence facial recognition technology in a robbery case. Written by Murnaghan Appellate Advocacy Fellow Sahar Atassi, the brief argues that the use of facial recognition technology and the details of the search conducted should be disclosed to ensure a fair trial. The brief also illuminates the detrimental consequences people suffer from unnecessary pretrial detention.

Days before Mr. Johnson’s trial, the State disclosed its use of facial recognition technology to identify him without providing additional details on the specific software used or whether the technology generated or should have generated additional leads beyond Mr. Johnson. The Montgomery County Circuit Court judge, concerned by the late disclosure, offered the defense a continuance (the opportunity to postpone) for further discovery but denied Mr. Johnson’s request for dismissal based on Brady or discovery violations. Mr. Johnson, however, chose to proceed with trial as he had been in jail for a year and recently had been acquitted of unrelated burglary charges.

In support of Mr. Johnson, the PJC and allies filed an amicus brief to address the documented issues with facial recognition technology. Despite the increasing prevalence of this technology, its use is rarely disclosed to individuals facing prosecution, even though studies have highlighted its susceptibility to error, inconsistencies across different programs, and racial biases. The risk of misidentification—especially among people of color—raises serious concerns. Because law enforcement’s reluctance to disclose the use of facial recognition technology prevents meaningful scrutiny, depriving people of their right to a defense and a fair trial, we argue that the State’s failure to timely or sufficiently disclose its use of facial recognition technology constitutes a Brady violation and a breach of discovery obligations.

In addition, we argue that, when considering whether the offered continuance was an adequate remedy for the Brady or discovery violation, the Court should consider how pretrial detention itself undermines the fairness of the proceeding and harms individuals, their families, and communities. Detaining a person before trial makes it more difficult to mount a defense, increases the odds of conviction, and lengthens jail and prison sentences. It also causes loss of jobs, homes, and child custody; debt; and harm to physical and mental health while incarcerated. By removing people from their communities, pretrial detention burdens families and harms the education and future income of the kids of those detained. These harms fall hardest on Black and brown communities, as law enforcement and the courts disproportionately arrest Black and Latine people, hold them pretrial, and set higher bail and punishment, despite similar criminal backgrounds and charges as white people. As a report from the Open Society Justice Initiative states, by “depriving [the community] of parents, income-earners, teachers, role models, and political leaders[, t]he community impact of excessive pretrial detention furthers the social exclusion of marginalized groups, increases their poverty, and decreases their political power.”

We hope that the Court will recognize how critical disclosing the use of facial recognition is to ensuring that defendants receive a fair trial and avoid the harms of pretrial detention.

Thank you to PJC paralegals Carolina Paul and Omar Arar and administrative coordinator Becky Reynolds for their assistance with the brief.