Facial Profiling

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

"I think this is going to be the first time that we use the fundamentals of digital facial attributes in a court case," he said in an interview during his first trip to San Francisco last month for a hearing on whether his testimony should be admitted in Heard's murder trial. "It's going to be a very important case — a historical case."

Bavarian is managing director of Newport Beach–based firm AFIS and Biometrics Consulting, a private consultancy that develops biometric identification systems. He holds a Ph.D. in electrical and computer engineering from Ohio State University, and — with his amber complexion, coiffed dark hair, and hooded gaze — exhibits a distinct Southern California gloss. His clients have included the Department of Homeland Security and the Netherlands national police.

Safire had enlisted Bavarian to analyze business surveillance videos of two young black men fleeing the site of Barrett's murder. The prosecution and defense agreed that one of these unidentified men was the shooter. They wore clothes matching those described by witnesses, and one can be seen in the footage holding an object that resembles a handgun.

Barrett’s stepfather and mother 
outside the courthouse on the day Heard’s verdict was announced.
Eartha Goodwin
Barrett’s stepfather and mother outside the courthouse on the day Heard’s verdict was announced.
Eric Safire, Heard’s defense lawyer, said surveillance videos showed his client could not be the shooter.
Frank Gaglione
Eric Safire, Heard’s defense lawyer, said surveillance videos showed his client could not be the shooter.

Swart chose not to use the videos for identification purposes, asserting that they were too blurry. Yet they were a mainstay of Safire's case. Relying on Bavarian's techniques, the defense lawyer hoped to demonstrate that neither of the men captured on tape was Charles Heard.

The prosecution, for its part, argued forcefully against Bavarian being allowed any-where near a jury.

"At this point, it cannot be established that biometrics has been generally accepted in the relevant scientific community," Swart said in a motion. "Just as importantly, there are no prior published Court of Appeal opinions in California that establish the general scientific acceptance of this science."

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.

"When?"

"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.

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