Emotion-reading software may prove useful, and its application to mock trials and focus groups could be valuable and entirely acceptable given the subjects’ consent. However, there are perils associated with application on an actual jury in a real courtroom. The impact on privacy could dissuade potential jurors and raise legal issues. The focused atmosphere of the courtroom could be upended by distracting use. As a result, courts may wish to consider getting ahead of the technology by explicitly adopting rules regarding the use of the technology and making litigants well aware of their stance before technology has the chance to outpace deliberatively set rules.
Most people know Facebook and Google can “read” a face and identify the person. Next generation software goes much further: uncovering moods and emotions. Courts and trial counsel alike should consider now the implications of possible courtroom use.
1. Facial expression analysis
Identifying people based on their unique physical characteristics, or “biometrics,” is increasingly common. Facebook, for example, stores data like the geometry of a person’s face, including the distance between the eyes, nose, and ears, to help identify a person in a photo. Google offers a similar service many use to sort pictures on their phones.Next generation software recognizes not just the static identity of a person, but which emotions the person is expressing at a given moment. This advancement stems from a body of research identifying a series of basic expressions all humans convey identically. Each expression can be broken down into individual movements of facial muscles. From this catalogue of facial cues, developers have made products that can glean insight into how a subject actually feels. The software was used this past fall with an audience watching the Republican presidential debate to determine the “winner.” McDonald’s has used it to determine how employees’ moods affected those of its customers. Companies see the immense value in tailoring their products, marketing or ad campaigns to please customers.