Face-to-Face with Facial Recognition Evidence: Admissibility Under the Post-Crawford Confrontation Clause

Joseph Clarke Celentino*

In Crawford v. Washington, the Supreme Court announced a major change in Confrontation Clause doctrine, abandoning a decades-old framework that focused on the common law principles of hearsay analysis: necessity and reliability. The new doctrine, grounded in an originalist interpretation of the Sixth Amendment, requires courts to determine whether a particular statement is testimonial. But the Court has struggled to present a coherent definition of the term testimonial. In its subsequent decisions, the Court illustrated that its new Confrontation Clause doctrine could be used to bar forensic evidence, including laboratory test results, if the government failed to produce the technician who conducted the test. This Note explores the implications of Crawford and its progeny through the lens of one piece of forensic evidence: facial recognition technology. As facial recognition technology continues to gain purchase as a law enforcement tool, prosecutors are increasingly likely to attempt to introduce such evidence in court. Recognizing the interpretative difficulty created by the deep divides that remain on the Court over the proper scope of the Confrontation Clause, this Note argues that, under the Crawford framework, facial recognition evidence is testimonial and, therefore, requires confrontation.

* J.D., May 2016, University of Michigan Law School; B.A., 2013, Northwestern University. I would like to thank the entire staff of the Michigan Law Review for their able guidance and substantial patience; Samuel Leifer, my Notes Editor and mentor; Professor Nina Mendelson for her comments and consistent support; and my good friend Robert Niles, of the Harvard Law Review, for his invaluable and insightful feedback. I would also like to thank Professor Richard Friedman, whose contributions to Confrontation Clause doctrine inspired this Note. Finally, in light of his recent passing, it seems particularly appropriate to acknowledge the late Justice Antonin Scalia, whose considered arguments in this area were formative of my own understanding the Confrontation Clause.

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