New Jersey Supreme Court orders disclosure of police facial recognition use in criminal cases

Unanimous ruling requires prosecutors to provide defendants with information about facial recognition tools used in investigations

The New Jersey Supreme Court has ruled that criminal defendants are entitled to information about law enforcement’s use of facial recognition technology during investigations, a decision civil liberties advocates hailed as a major step toward transparency and accountability.

In a unanimous decision in State v. Miles released on Wednesday, June 24,, the court held that prosecutors must disclose information identifying facial recognition technology used in an investigation and explain how it was used to identify or investigate a defendant. The ruling applies even when prosecutors do not intend to introduce facial recognition evidence at trial.

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The case stems from the prosecution of Tybear Miles, who was charged with murder and weapons offenses in connection with a 2021 fatal shooting in Jersey City. During the investigation, police used facial recognition technology to compare an Instagram profile photo associated with a suspect known by the nickname “Fat Daddy” against law enforcement databases. The search identified Miles among several possible matches. Investigators later interviewed other people, who then identified Miles in surveillance images taken before the shooting. No witness identified him as the shooter.

Writing for the court, Justice Lee Solomon Fasciale said defendants must have access to information about the technology used to investigate them to mount a meaningful defense. The court ordered disclosure of information identifying the facial recognition tools and materials used by investigators, as well as records showing how police used those tools during the investigation.

The court said that information could be relevant to challenging the reliability of the technology, questioning the thoroughness of the investigation, impeaching witness identifications, and exploring whether another person may have committed the crime. The opinion noted that facial recognition searches conducted in the case generated multiple potential matches, including some ranked ahead of Miles in one search result.

At the same time, the court stopped short of requiring disclosure of proprietary information such as the software’s source code. The justices ruled that defendants seeking access to trade-secret information must first demonstrate a particularized need for it, and said the record in Miles’ case was not sufficiently developed to make that determination.

The decision rejects what the court described as a “mechanical application” of a 2023 Appellate Division ruling, State v. Arteaga, which had required disclosure of 13 categories of facial recognition-related evidence. Instead, the court said discovery requests must be evaluated on a case-by-case basis.

Still, the justices emphasized that defendants generally must receive basic information about the facial recognition systems used against them.

“As technology proliferates, so does its use in criminal prosecutions,” the court wrote, adding that defendants have a constitutional right to a fair trial and a meaningful opportunity to present a complete defense.

The American Civil Liberties Union of New Jersey, which participated in the case as an amicus curiae alongside the national ACLU, the Innocence Project, and other organizations, praised the ruling.

“Today’s decision by the New Jersey Supreme Court in State v. Miles is a major victory for civil liberties,” Dillon Reisman, staff attorney at the ACLU of New Jersey, said in a statement.

“As one of the first state high court rulings of its kind, today’s opinion applies constitutional safeguards to the use of facial recognition technology in criminal investigations. It has been proven that these systems have a high risk of misidentifying innocent people — especially people of color — as perpetrators of a crime. The Court now affirms that defendants are entitled to crucial information about those systems in order to make their defense.”

Reisman said the ruling establishes an important precedent for transparency as police agencies increasingly rely on emerging technologies.

“With this ruling, New Jersey has set a precedent that opens the door to meaningful transparency into the use of new technologies by law enforcement,” he said.

The case will return to the trial court, where prosecutors must provide the categories of facial recognition-related discovery required by the Supreme Court’s decision.