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Facial Profiling 

Will face-recognition technology get an accused killer off the hook?

Wednesday, Jul 14 2010

Page 3 of 5

Swart's characterization of facial-identification technology is accurate, according to Faigman: "My experience suggests that it's not generally accepted in the mainstream scientific community," he said.

Bavarian defended his proposed use of biometrics during an interview with SF Weekly, claiming that facial identification could do a lot more than the prosecutor was willing to admit. "This is not a junk science," he said. "This is a good science."

The defense lucked out: Judge Jerome Benson decided that Bavarian could take his turn in the witness box. "I'm not satisfied that the procedures he used are improper," Benson said after both attorneys had argued the question of admitting Bavarian's testimony. "The motion to admit the doctor's testimony is granted, with substantial limitations."

Benson ruled that Bavarian could not explicitly state, based on his analysis, that the man in the surveillance video and Charles Heard were different people. However, he said, "He can say the measurements in the video surveillance footage are whatever they are, and the measurements in the jail photo [of Heard] are whatever they are," and let the jury ponder the difference.

Despite such restrictions, jurors would almost certainly be able to infer the gist of Bavarian's testimony — that Heard was not the man in the video, and hence was not guilty.

When Bavarian took the stand on June 10, he brandished a laser pointer that he directed at a slideshow on the wall opposite the jury. The courtroom was dark, and the jurors leaned forward in their seats.

Two sets of images recurred throughout the presentation. The first was a straight-on shot of Heard in jail-issue orange, staring blankly at the camera. The second was an eerie black-and-white still frame of the supposed murderer caught on surveillance tape, displaying an angular face twisted into a smile and shadowed by a hoodie.

Bavarian explained that his method was to take measurements connecting various points on each individual's pictured face, turn them into ratios (for instance, creating a ratio of the distance between a person's eyes to the distance between his hairline and chin), and then match them against each other. By this method, he said, the biometric signatures of individual faces — even in photos of different size and resolution — could be contrasted.

"These are the numbers you came up with," Safire said to his expert. "Do they show a difference?"

Bavarian stated that the difference was, indeed, "significant in the context of other measurements."

Swart's time to cross-examine the doctor came. "Sir, your background is a background in electrical engineering. Is that true?" the prosecutor asked.

"No," Bavarian said. "Electrical and computer engineering."

"Have you gone through a course in forensic photography?"

Bavarian tried to ask a question.

"Let me ask the question, and then you can answer the question," Swart said.

He started peppering Bavarian with queries designed to undermine his credibility.

"Do you belong to the Scientific Working Group on Image Technology?"

"I just became a member of that," Bavarian replied.


"Last month."

"Have you been admitted to the Facial Identification Scientific Working Group?"

"Yes," Bavarian said. Then, after a pause: "That's not relevant."

"It's not relevant? Well, I'm glad you can make rulings for us on what's relevant and what's not," Swart said. "Thank you."

Safire, seated at the defense table, grinned.

After some interrogation on the technical aspects of Bavarian's methods, Swart asked him whether his analysis of Heard's photo and that from the surveillance camera had been peer-reviewed by other scientists.

"Did anybody do a technical review of your work?"

"Yes," Bavarian replied.


"My colleagues and my friends."

Safire objected.

"Your Honor, I think this is misleading," he said somberly. "I really do."

If it seems odd that a relatively untested science, explained by a relatively unknown scientist, should be considered as evidence by a panel of men and women deciding whether to send a young man to prison for the rest of his life — well, it is.

State and federal courts ostensibly have rigorous tests for establishing the admissibility of scientific evidence. The goal, as a California appellate judge wrote in 1998, is to avoid bestowing "a misleading aura of certainty or a posture of mystic infallibility" on quackery.

"The traditional fear is that the jury will much more readily accept something that an expert says is true," said Michael Saks, a professor at Arizona State University College of Law and an expert on scientific evidence. "The official doctrine is, you want to move slowly and carefully and not let something in until it's really good."

Yet this doctrine has been more honored in the breach than in the observance, according to Saks. Many novel brands of forensic science have been heedlessly allowed into high-stakes trials, and withdrawn from courtroom use only when later called into question. Forms of "scientific" evidence that have been accepted and then debunked include voice-print identification, bullet-lead analysis, blood-spatter studies, handwriting, bite marks, and certain burn patterns that were once thought to indicate arson.

Strange to say, in the 19th century, before forensic fingerprinting became established, a primitive form of biometrics that measured people's heads and limbs — known as Bertillonage after its creator, a French police clerk named Alphonse Bertillon — was the dominant means of identifying suspects in the criminal-justice system.

"We have a long and somewhat ambivalent tradition of using biometrics for legal identity," said Jennifer Mnookin, a professor at UCLA School of Law and an expert on forensics and scientific evidence. "The question is, how well does it work? And how well does it work from a blurry photograph?"

There's a simple answer to that question, according to some biometrics authorities: not well. Whatever Bavarian's friends may have thought about his work on the Charles Heard case, it turns out that some of his colleagues have reservations about it.

Academic experts in facial-recognition techniques interviewed by SF Weekly, along with an FBI forensics specialist who testified on behalf of the prosecution in Heard's trial, expressed skepticism both about facial recognition's readiness for the courtroom and the specific methods used by Bavarian.

About The Author

Peter Jamison


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