Following the robbery of a store in West New York, police retrieved surveillance video from a nearby building and sent a still photo from the video to the New Jersey Regional Operations Intelligence Center (NJROIC) to help identify the perpetrator using facial recognition technology (FRT). When the NJROIC could not find a match, police sent all the raw video footage to the Facial Identification Section of the New York Police Department Real Time Crime Center (NYPD RTCC), where a detective captured a still image, compared it against the center's databases, and offered defendant as a possible match.
Police subsequently included the photo from the NYPD RTCC along with five filler photos to construct photo arrays to show two eyewitnesses. The eyewitnesses identified defendant as the perpetrator, and he was subsequently charged.
Defendant sent the State a discovery demand containing thirteen items seeking information regarding the FRT used to identify him. He also moved to suppress the out-of-court identifications by the eyewitnesses. The trial court conducted a Wade[1] hearing and denied the suppression motion. Meanwhile the State obtained documents from the NYPD RTCC answering two of the thirteen discovery demands. Defendant moved to compel the State to answer the remaining discovery requests, arguing the discovery was: necessary to impeach the eyewitness identification; impeach the police investigation; and exculpatory. Defendant's motion included a declaration from an FRT expert, detailing why the information sought was relevant and explaining the vulnerabilities of FRT, including problems with its reliability. The trial court denied the motion to compel.
On leave granted, defendant re-asserts the arguments made to the trial court. Amici joins in defendant's arguments on appeal.
The court held the discovery dispute was a separate matter than the Wade hearing and defendant was entitled to the discovery to construct a defense and for impeachment purposes. Discovery into the FRT was necessary because it is a novel and untested technology, and no New Jersey court has addressed the issue. Moreover, the discovery sought was attainable because: the State raised no proprietary objections; had already obtained some discovery from the NYPD RTCC; and the items sought regarded defendant's identification and reliability of the identification process.
The court reversed and remanded for entry of an order compelling the State to provide the eleven remaining items of discovery. The trial court is authorized to enter a protective order, order the in-camera review of the materials received from the State, and hold a Daubert[2] hearing, if necessary.
[1] United States v. Wade, 338 U.S. 218 (1967).
[2] Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).