Brief of Amici Curiae Electronic Privacy Information Center, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers in support of Defendant-Appellant.

Argument: In this case of first impression, appellant argues that information about the technology and procedures underlying a facial recognition search must be disclosed to the defendant to cure the risk of misidentification and in accordance with Brady v. Maryland, even if the result of the search was used only investigatively, subject to later corroboration, and not admitted into evidence. The amicus brief explains the numerous opportunities for error present in the facial recognition process, and how error in that process determines the course of the investigation and results in racially disparate and otherwise wrongful arrests. NACDL’s Fourth Amendment Center has been working to better understand how defendants’ due process rights are impacted by the growing use of facial recognition technology and to equip defense attorneys with the knowledge and tools to combat resulting Brady violations. 

Brief of Amici Curiae The American Civil Liberties Union, The American Civil Liberties Union of New Jersey, The National Association of Criminal Defense Lawyers, and The Association of Criminal Defense Lawyers of New Jersey.

Argument: The state violates the Fourth Amendment and article 1, paragraph 7 when it obtains access to an incarcerated person’s recorded telephone conversations without a warrant. Jackson had a reasonable expectation of privacy in the calls he made to his mother from jail. Jackson did not forfeit all privacy rights in his telephone conversations by exposing them to jail staff for security monitoring purposes. Jackson did not consent to the State accessing his calls for its use in his prosecution. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the constitutional and policy interests the calls implicate.

Brief of Amici Curiae The American Civil Liberties Union, The National Association of Criminal Defense Lawyers, and The Association of Criminal Defense Lawyers of New Jersey

Argument: The state violates the Fourth Amendment and article 1, paragraph 7 when it obtains access to an incarcerated person’s recorded telephone conversations without a warrant. Jackson had a reasonable expectation of privacy in the calls he made to his mother from jail. Jackson did not forfeit all privacy rights in his telephone conversations by exposing them to jail staff for security monitoring purposes. Jackson did not consent to the State accessing his calls for its use in his prosecution. Requiring prosecutors to secure warrants in order to access jail calls is the only adequate way to protect the constitutional and policy interests the calls implicate.

Amicus's [NACDL and ACDL-NJ] Memorandum of Law in Opposition to Motion to Enforce Compliance with the Subpoena.

Argument: A subpoena directed to a defendant's lawyer is potentially damaging to the attorney-client relationship and can impinge on the constitutional right to counsel. The State is not entitled to the protected attorney-client communications because the State already has all the information it seeks and has not made a showing that the information cannot be obtained from a less intrusive source. The crime-fraud exception does not permit the intrusive probing questions proffered by the state.