The Law and Science of Evidence
"The sun-pictures of various kinds have been in popular use for a generation; but many years passed before they were adopted into the apparatus of courts of justice," noted an 1879 article in the Western Jurist. "The law of the land is a wary old fox, and scrutinizes a new invention a long time before extending the paw to appropriate it."[1] SOURCE In fact, as a testimonial aid in civil or criminal proceedings, "sun-pictures," first introduced into the United States in 1839 with the news of Daguerre's discovery, were not cited in the published reports of the appellate courts until 1859,
| The case, Luco v. U. S., 64 U. S. (23 How.) 515 (1859), involved a disputed signature on a land grant. For more details, see Harris, A Treatise on the Law of Identification, § 178. |
Although many years passed before the admissibility of photographs was considered in an appellate court, photographs had been used in the lower courts as evidentiary aids well before then. Reflecting on his long and distinguished career as a commercial photographer, Albert S. Southworth noted that having personally conceived of the idea of photographing disputed handwriting to aid in its identification in 1856 or 1857, "photographs soon came to be used in the courts of Massachusetts."[3] SOURCE Photography, like any newly introduced form of evidence, did not enter into legal discourse until it became the subject of dispute. Initially accepted without reservation, it was some time, suggested one writer, "before any attorney had displayed sufficient temerity to ask a court for a ruling on the subject."[4]
While the courts were slow to incorporate photography into the judicial process, police departments in Europe and the United States had long recognized the value of the new technology; by the end of the 1860s the Rogues Gallery was a common fixture in mid-sized American cities. Writers recommended a variety of ways in which the state might better identify its citizens through the photographic arts. In England it was suggested that a public photographer be appointed to visually document the nation's citizenry, and in the United States it was proposed that photographs be appended to naturalization papers, marriage certificates, and military records.[5] SOURCE Photography might even identify the faceless threat of civil unrest, suggested one writer.
The Emperor Napoleon is said to have so reconstructed the city of Paris that there is no street or avenue, which could be barricaded in case of a revolt of his subjects, that cannot now be swept by his batteries.... when the art of photography is perfected, the streets and alleys of our great cities will be swept by photographic batteries, so located as to take, from many points of view at once, the likenesses of persons engaged in disturbing the peace, for use in subsequent legal examinations.[6] SOURCE
Lawrence Friedman describes the nineteenth-century American law of evidence as part of a system of checks and balances which prevents either judges or juries from assuming too much control over the judicial process. The distrust American political thinkers had in central and unassailable structures of authority as well as in unfettered democratic rule, argues Friedman, manifested itself in the legal system through the development of rules of evidence that checked the concentration of power in either sphere. Skeptical of the neutrality of judges, the American judicial system placed full fact-finding powers in the hands of the jury, as well as—in criminal cases—final decision regarding innocence or guilt. However, determination of admissible evidence was left to the discretion of judges (although, upon objection, a judicial decision could be reviewed by a higher court). By creating a system that allowed one component to determine what testimony might be introduced into the judicial process while allowing the other to then determine how compelling that testimony was, evidentiary law acted as a countervailing force mediating the relationship between jury and judge, between the vox populi and the legal apparatus of the state.[7]
Organized in a Linnaean manner incorporating past cases into a formalist taxonomy from which decisions could then be generated, nineteenth-century American law, like science, was considered discoverable through experimentation. Both law and science relied on the development and control of a special disciplined space regarded as public but in fact sustained by its limited access, a space in which experimental, discursive, and social practices were controlled by competent members. Just as experimentation was necessary to secure assent among members of the scientific community, so was precedence and procedure necessary to achieve legal consensus. Both the legal and experimental trial took great pains to place mutually agreed upon discursive limits upon those facts or evidence considered admissible. Evidence law, like science, drew its legitimacy from observation, practice, and "commonsense knowledge" rather than simply rules and principles.[8] Simon Greenleaf, who compiled the first American treatise on evidence in 1842, praised "the symmetry and beauty of this branch of the law," and, quoting Lord Erskine, noted that its principles were "founded in the charities of religion, in the philosophy of nature, in the truths of history, and in the experience of common life."[9]
| For a representative sample of one such legal treatise see my hypertext version of George E. Harris's "Chapter V. Photographs," from A Treatise on the Law of Identification: A Separate Branch of the Law of Evidence. (Albany, 1892). Links to other treatise chapters and sections pertaining to photography and the law of evidence can be found among the Primary Sources in the Bibliography. |
The gathering together and categorizing of past case law created a massive corpus of hair-splitting technicalities that became more complex and arcane as time went on. Said William Reynolds, a late nineteenth-century critic of the case law system of evidence:
These rules—excepting where, in a comparatively few instances, they have been the subjects of statutory enactments—are part of that common law, the lex non scripta, which has never been officially promulgated as a whole, in concise and authoritative language, but is supposed to have its seat in the breasts of the judges of the several courts of justice, who, from time to time, in their opinions, pronounce so much of it as may be necessary to sustain their decisions of the particular questions coming up before them for adjudication. The only method of ascertaining the common law upon any given question is by a collation of the reported decisions upon similar or analogous cases, and, after deducing from them the general rule by which they were determined, then applying it to the point under consideration.[11] SOURCE
Reynolds, who favored the creation of a national code of evidence (similar to India's, installed in 1872 by British colonial authorities), found the present system completely incoherent. "Our present law of evidence—made up as it is of case law, modified by numerous statutory amendments made at different times, many of them based upon theories entirely inconsistent with each other, and some upon no theory at all—is a system of patch-work, which, with much wisdom, contains also many absurdities."[12] SOURCE
For all of its patchwork inconsistencies, the hidebound formalism of the nineteenth-century American law of evidence conveyed an air of inevitability about legal decisions, in which jurisdiction mattered less than the inexorable working out of supposedly fundamental legal principles. [13]
Confronted less with a new form of technology than with a new form of representation that challenged received notions of original and hearsay evidence, the Anglo-American legal press during the late 1860s and early 1870s speculated as to the evidentiary rank of the new photographic art. "At first view, doubtless, a photograph seems a mere piece of hearsay evidence," argued one widely reprinted article.
It differs from hearsay, however, in one essential particular; it is wholly free from the infirmity which causes the rejection of hearsay evidence, namely, the uncertainty whether or not it is an exact repetition of what was said by him whose testimony is repeated by the witness. In the picture we have before us, at the trial, precisely what the apparatus did say. Its language is repeated to us, syllable for syllable.[14] SOURCE
When asked to identify a person, the witness was expected to compare the person before him "with the conception or image of him existing in his 'mind's eye.'" However, were a photograph employed for the same purpose, the witness "would be asked to compare the person proposed with a likeness or image of him formed, not by the mysterious operation of vital laws and forces but by the subtle actions of chemical agencies; formed, too, not in the brain or upon the retina of the eye of the witness, but upon the equally faithful and far more durable tablet used by the photographer." Human memory will fade, is subject to "moral bias," and can be distorted or intentionally falsified during testimony. But the photograph "is that person himself, precisely as he exists in the article of vision—is, therefore, direct and original evidence of the kind of man he was."[15] SOURCE
The enthusiasm greeting this unimpeachable form of evidence was similar to that which had met the introduction of the daguerreotype some twenty-five years earlier. Edgar Allan Poe had found the daguerreotype "infinitely more accurate in its representation than any painting by human hands.... the closest scrutiny of the photographic drawing discloses only a more absolute truth, a more perfect identity of aspect with the thing represented."[16] SOURCE "Every object, however minute, is a perfect transcript of the thing itself," marveled New York City merchant Philip Hone.[17] SOURCE
Photography's initial reception underscored the contradiction between its acceptance as testimonial aid—a reproduction of the real—and as commodity—a production of the photographic artist. Nineteenth-century French legal thinking originally dismissed the artistic worth of the photograph, and, hence, its legal claim to copyright protection. Wrote one jurist:
...I am fundamentally contemptuous of this chance invention which will never be an art but which plagiarises nature by means of optics. Is the reflection of a glass on paper an art? No, it is a sunbeam caught in the instant by a manoeuvre. But where is the conception of man? Where is the choice? In the crystal, perhaps. But, one thing for sure, it is not in Man.[18]
Its reflective plagiarism of nature, the very quality of the photographic process which had earned it the contemptuous dismissal of the French jurist, recommended its use as evidence.[19] As the London-based Photographic News ruefully noted in 1866, "the credit which has been denied to photography on the score of art capacity must be conceded to its literal fidelity in rendering facts. That it is not imaginative, that it cannot modify or omit details from its presentments, becomes, in many cases, its cardinal virtue." More mimetic than creative, when the photograph "enters the witness-box, its evidence leaves little room for doubt."[20] However, as recognition of the artistic merit of the photographic work increased, skepticism as to its evidentiary value grew.
Prior to the 1890s, courts generally held that the photographic subject was protected from the unauthorized reproduction and sale of their portraits, a ruling that put an odd spin on questions of ownership, copyright, and commodification.[21] The ability to restrain the unauthorized reproduction of one's image was not founded upon the right to "privacy" (a distinctly American legal concept that would not come into use until the end of the century), but, as this 1884 quotation from the Chicago Legal Times demonstrates, upon the principle of vested ownership in one's image. "So, if a likeness, once lawfully taken, were, without permission, to be multiplied for gain... it might be considered whether there was not a violation of a sort of natural copyright, possessed by every person of his or her own features, for which the courts would be bound to furnish redress." In the eyes of the court, the use value of the photograph resided not in the object itself but in the quality of the image captured upon the photographic plate: the photographic subject's "right to control the market of her own beauty could not have been denied her by any court."[22] SOURCE
As late as 1884, legal writers found the extension of copyright protections to photographs a source of amusement. "Who can be the 'author' of a photograph?" asked the Chicago Legal Times, commenting on a British case involving a dispute between a salaried photographer and a photographic establishment over the authorship and ownership of a photograph.
Not any artist, but the sun if brought into requisition, forms the picture. The photographers, on the other hand, would have it that they who own the machinery, maintain the establishment and pay the servants, are the only persons interested in the photograph at the time it is made and formed by their mere servants.[23]