Could Broward Criminal Defense Lawyers Really Use AI Facial Recognition Software?

Artificial intelligence (also known as AI) has long been the subject of futuristic dystopian novels, with films like “Blade Runner” hyping the potential for this type of technology to bolster a nefarious police state. So it’s not surprising that the introduction of AI technology in criminal justice has been controversial. As our Broward criminal defense lawyers can explain, AI (specifically, facial recognition software) has been primarily utilized by police and prosecutors. Recently, however, it was used to exonerate a defendant accused of Florida vehicular homicide.Broward criminal defense lawyers

According to news reports and court records, the case began with a fatal car crash in Fort Myers six years ago. According to the defendant, he was the front seat passenger of a Mustang driven by his drunk, distraught friend, who sped recklessly at 100 m.p.h. on a street with a speed limit of 35 m.p.h. The defendant said he was terrified, begging his friend to slow down. They struck a curb, careened out-of-control, slammed into a light pole and then three palm trees before finally stopping against the side of a tree. The defendant blacked out. When he came to, his friend, the driver, was gone. The windshield had shattered. He was stuck, his seat belt jammed. And the car was on fire. He was dazed when an unknown man jumped into action, forcing open the driver side door and getting him out of the burning car.

He didn’t get the name of the man who pulled him from the car. When police arrived, they spoke briefly to the Good Samaritan – an interaction caught on the officers’ body cameras – who affirmed he’d pulled the defendant from the passenger seat. However, the officers didn’t get the name of that man either, perhaps being distracted by the fact that the defendant’s friend was dead nearby (which is not an excuse, especially as it almost led to a serious miscarriage of justice). Later, despite the defendant’s fervent insistence that he hadn’t been driving, prosecutors charged him with vehicular homicide for the death of his friend – a charge that could have landed him in prison for 15 years. They said there was conflicting evidence about who was driving; an accident reconstructionist presented evidence that the burns on his body weren’t consistent with being in the passenger seat. Prosecutors indicated the information provided to police by a nameless man on body cameras wasn’t enough, especially if he couldn’t be identified and called to testify.

But the nameless man didn’t stay nameless. The defendant was ultimately exonerated because of him, after an AI company with a facial recognition database of billions of faces granted his criminal defense lawyers access to that system. Through this, defense lawyers were able to identify that Good Samaritan – who confirmed he was there on scene, and that the defendant was indeed the one stuck in the passenger seat when he arrived. With his testimony, the prosecution dropped the case.

But use of this system to find him was only employed after years – hundreds of hours – trying to locate that man through fliers, social media, tattoo parlors inquiries, internet searches, etc. Local law enforcement reportedly ran a few cursory searches through the AI database early on as well, trying to find that witness, but didn’t have a paid account with the company, and thus didn’t pursue it further.

Still, not all criminal defense lawyers – or civil rights attorneys – are on board with the proliferation of this new technology.

How AI May Be Problematic for Both Criminal Defense and Civil Rights

The same AI technology that allowed the South Florida criminal defense lawyers in the vehicular homicide case to prevail has been available to government agencies – including law enforcement and prosecutors – for years. The New York-based company that owns these materials says that providing the tech to criminal defense attorneys helps to even the playing field in criminal justice. And this case certainly shows how that’s possible. Certainly, there are many criminal defense lawyers who can see the value. However, there’s a healthy does of skepticism too.

They say that this case is an outlier, there are limited uses of this technology for defense lawyers, and the company’s reason for parading this case around is a means to push back against the negative press they’ve gotten for how law enforcement uses this tech. Numerous civil liberty organizations have raised alarm bells about the potential privacy violations these databases hold – with images/faces pulled from various corners of the web (including social media) without the consent of those individuals. Some of those individuals never posted those images themselves and perhaps weren’t even aware those images were online. Law enforcement has had to pay to purchase access to the database.

The argument some Broward criminal defense lawyers make against use of these biometric identifiers for profit is that this puts potentially millions of people – who have committed zero crimes – in law enforcement lineups. And this in turn raises questions about just how accurate this technology is. Some analysis has shown it’s much more accurate with White faces as opposed to Black faces or those with darker skin tones. That’s extremely concerning, especially given the disproportionate rates at which Black people in the U.S. are stopped, arrested, prosecuted, convicted, and sentenced in the criminal justice system. It may also be less accurate with women than men.

Just last year, this same company settled a lawsuit filed by the ACLU, which had argued privacy violations. As part of the settlement, the company agreed to limit its AI facial recognition database to U.S. government agencies and not sell access to most private individuals or businesses. It also agreed not to provide services to law enforcement agencies in Illinois (where the ACLU lawsuit was filed), at least for a time. Further, the previous “free trial” process that was available to almost anyone will now have tighter access restrictions.

The tech is illegal in Canada, Australia, France, Greece, Italy, and other parts of Europe. The company owes tens of millions of dollars in fines to government agencies in Britain and Italy for alleged privacy violations.

Bottom line: It may be possible to use AI technology in formulating an effective criminal defense, though it’s almost just as likely a defense lawyer might argue against its admission into evidence.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Artificial Intelligence: Benefits and Unknown Risks, Jan. 15, 2021, American Bar Association

More Blog Entries:

How Do I Bail Someone Out of Jail in Fort Lauderdale?  Dec. 15, 2022, Broward Criminal Defense Lawyer Blog

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