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    The Signs of the Things Taken

  1. At the request of the plaintiff's lawyer, the blinds were drawn and the lights snuffed out, and the courtroom of the U. S. Circuit Court for the Southern District of New York was plunged into darkness, save for a shaft of light which the expert witness played upon a solar microscope. The witness, Professor Albert Simms, a photographer and handwriting expert, had been duly sworn and questioned as to his competency to testify regarding the detection of forged signatures. He explained to the court that he had photographed upon glass genuine and disputed signatures, and proposed to project those signatures "upon the wall behind the jury, immensely enlarged, so that the peculiarities I have described may be detected by every eye in the house." That said, Professor Simms' demonstration proceeded.

    The great sun in heaven was summoned as a witness, and the sun would not lie. A voice was to speak to them from a hundred millions miles away—a hundred millions of miles near the realm toward which men looked when they dreamed of the Great White Throne.... the name swept through the darkness over an unseen track, and appeared upon the wall, within a halo of amber light.[1] SOURCE

  2. In the penultimate chapter of Sevenoaks, "In Which a Heavenly Witness Appears Who Cannot be Cross-Examined," science and the law combine to restore social order. Concealed motives and true identities are revealed, estates returned to their rightful owners, the virtuous rewarded, and the duplicitous discovered. Written in 1875 by the popular novelist Josiah Holland, Sevenoaks presents an accurate if spectacular portrayal of the admission and presentation of photographic evidence in cases involving disputed handwriting, including the use of lantern slides to present evidence, a practice just coming into its own.[2] SOURCE In the face of this overwhelming testimony from the "heavenly witness," opposing counsel vainly attempts to have the evidence dismissed, arguing that Professor Simms, "by his skill in the management of an experiment with which none of us are familiar, has found it easy to make a falsehood appear like the truth." SOURCE His objection, however, is drowned out by the roaring enthusiasm of the courtroom spectators, who felt they "were witnessing a drama in which divine forces were playing a part.... There was man's lie—revealed, defined, convicted by God's truth!"[3] SOURCE

  3. The usefulness of photographs in cases involving disputed signatures or documents had been noted by the United States Supreme Court in 1859, and in 1860 the Pennsylvania Supreme Court ruled that with "proper precautions... we are unable to perceive any valid objection to the use of such prepared representations of original and genuine signatures as evidence competent to be considered and weighed by the jury."[4] SOURCE By the 1870s many photographers supplemented their incomes appearing as expert witnesses in document cases. Albert Southworth reported that "the larger part of my time for some years past has been taken up in this business," and estimated that number of such cases he had played a hand in "amounts to hundreds in two or three years."[5] SOURCE

  4. However, the legal profession's increasing reliance on expert testimony eventually tarnished the photograph's reputation for incontrovertibility, for as its use became more common, photographic experts began to face each other across the courtroom. This situation came to a head during the high-stakes Howland Will Case, an 1870 Rhode Island legal contest involving a disputed will that centered around the authenticity of a single signature. Counsel for both sides brought forth batteries of expert witnesses, including handwriting experts, photographers, chemists, engravers, mathematicians, physicians and naturalists, to attest to or dispute the validity of the signature. "It is for the extraordinary conflict of expert testimony, demonstrating how completely scientific opinion may differ, that this case... will be most famous in the annals of the law," remarked one observer.[6]

  5. Heading the defendant's team of experts was Albert Southworth.[7] His testimony, consisting of hundreds of photographically reproduced signatures, was challenged by the plaintiff's experts "who pronounced the Voightlander lens used by the defendants in their photography to be inaccurate; this, on the other hand, was rebutted by the defendants." Counsel for the plaintiff, in his closing argument, expressed the opinion that all the testimony drawn from photographs was clearly inadmissible. "It is hearsay of the sun," he thundered.[8] But because the circuit court's decision was not appealed, the questions raised in the Howland Will Case remained unsettled.

  6. A year later, however, Southworth suffered a far greater indignity than the criticism of professional colleagues as to his preferred choice in lenses when, in the Taylor Will Case, the trial judge ruled that his photographs of handwriting samples, again numbering in the hundreds, would not be admitted into evidence. The New York Court of Appeals agreed, declaring that Southworth's "evidence" seemed designed only to overwhelm the jury with purportedly irrefutable scientific proof; furthermore, the court stated, the notion that a photograph corresponded in minute detail to the original was a "fallacy." Photographs, the court concluded, were inappropriate aids in cases involving disputed signatures:

    Too many collateral issues are involved to render them reliable testimony. Those who are familiar with the forms of photography are aware of the many circumstances that would have to be made subjects of affirmative proof, and will readily appreciate this statement. The refractive power of the lens, the angle at which the original is to be copied was inclined to the sensitive plate, the accuracy of the focusing, and the skill of the operator, and the method of procedure, would have to be investigated to insure the evidence as certain."[9] SOURCE

  7. "Without doubt the celebrated Taylor Will Case affords the most drastic criticism upon the worthlessness of photography in evidence of any case yet reported upon this subject," commented Frank Rice in his 1892 treatise, The General Principles of the Law of Evidence.[10] SOURCE Other jurisdictions followed with rulings restricting the use of photographic samples of handwriting and other documents under dispute.[11] SOURCE The Supreme Court of Michigan held that photographic copies of manuscripts should be treated as secondary evidence, like any other copy. "Few copies can be so satisfactory as a good photograph. But all artists are not competent to make such pictures on a large scale, and all photographs are not absolutely faithful resemblances.... The original, and not the copy, is what the jury must act upon, and no device can properly be allowed to supercede it."[12] SOURCE

  8. A few years earlier it had been argued that photographs were "so veracious as to entitle them to rank, not as hearsay or secondary, but as original, evidence,"[13] SOURCE and in 1873 a legal journal could still claim that the "human eye and memory may be easily conceived to be less likely to take and retain perfect images of an object, a person, a set of surroundings, than a photographic instrument."[14] SOURCE Throughout the 1870s the evidentiary rank of photography would remain unsettled. In Eborn v. Zimpelman (1877) a Texas court held that photographic copies of handwriting used to obtain depositions of witnesses in another state were erroneously received because they were secondary evidence, even though the handwriting samples in question were filed in a Texas court and could not be produced for witnesses to examine. Counsel for Eborn objected strenuously to this ruling, explaining his reasoning in his brief to the Texas Supreme Court.

    Until photography was discovered, nothing in nature was exactly like any other thing, except that thing's image reflected in a polished surface, which disappeared when the object was removed. Until this discovery there was, therefore, reason in the rule which required the production of the original paper writing as the best evidence of its appearance. Science now steps forward and relieves the difficulty, by making permanent, and materializing with minute exactness the reflected image. What reason thus remains why a discovery which destroys the foundation for a rule should not be used as proposed in the ascertainment of right?[15] SOURCE

    Comparing human vision to the photographic process, counsel argued that the eye itself was "nature's camera," making the suppression of photographic evidence all the more incomprehensible.

    Every object seen with the natural eye is only seen because photographed on the retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877, of Philadelphia Photographic Journal.) Take the case of a murder committed on the highway; on the eye of the victim is fixed the perfect likeness of a human face. Would this court exclude the knowledge of that fact from the jury, on the trial of the man against whom the glazed eye of the murdered man thus bore testimony? In other words, would a living eye-witness, whose memory only preserved the fleeting photograph of the deed, be heard, and the permanent photograph on the dead man's eye be excluded? We submit that the eye of the dead man would furnish the best evidence that the accused was there when the deed was committed, for it would bear a fact, needing no effort of memory to preserve it. It would not be parol evidence based on uncertain memory, but the handwriting of nature, preserved by nature's camera.[16] SOURCE

  9. The Texas Supreme Court remained unswayed by this argument: "it is contended that the court will take judicial notice that the photographic process secures a mathematically exact reproduction of the original.... But certainly the exactness of a photographic copy of a writing depends on the instrument and materials used.... However superior to other copies, it is certainly a question of fact whether any particular photographic copy is exact or not, for photographs do not always produce exact fac similes."[17] SOURCE

  10. Other courts, however, reached the opposite conclusion regarding the introduction of photographic copies of disputed documents that could not be obtained otherwise. In a case before the Court of Admiralty, that court held that "Photographic copies are the best evidence the case admits of. The wonderful art by which they were produced gives us, as we may say, duplicate originals."[18]

     

  11. Counsel for Eborn argued for the admissibility of photographic copies on material grounds--that the process simply replicated the physiological phenomenon of sight. Photography, by fixing the image that disappeared from sight, arguably was a higher form of evidence than eyewitness testimony. But an equally persuasive argument could be made that photographs, while secondary evidence, were no more so than oral or written testimony, which relied upon a system of signs to communicate things real. Early commentators had already observed the discursive power of the photographic arts. One reporter, viewing for the first time a daguerreotype, called the process "the first universal language, addressing itself to all who possess vision, and in characters alike understood in the courts of civilization and the hut of the savage. The pictorial language of Mexico, the hieroglyphics of Egypt are now superseded by reality."[19]

  12. In Cowley v. People SOURCE nineteenth-century semiotics were employed to sustain the conviction of the operator of the Shepherd's Fold, an orphan's asylum, for neglecting a child under his care. The district attorney prosecuting the case had entered into evidence photographs that purported to depict the physical condition of the child before and after his stay in the asylum, evidence that the defense contended should have been excluded. But Chief Justice Folger of the New York Court of Appeals suggested that photographs, the "signs of the things taken," were discursively no different than other types of evidence. "Most evidence is but the signs of things. Spoken words and written words are symbols....

    A witness who speaks to personal appearance or identity, tells in more or less detail the minutia thereof as taken in by his eye. What he says is a description thereof, by one mode of signs, by words orally uttered. If his testimony be written instead of spoken, and is offered as a deposition, it is a description in another mode of signs, by words written.... Now if he has before him a portrait or a photograph of the person... why may not that be given to the jury, as a description of the person by the witness in another mode of signs?[20] SOURCE

  13. While upholding their use in Cowley v. People, Folger discounted the photograph's reputation for unerring veracity; however, he continued, this was a discursive failing common to all forms of testimony. "The portrait and the photograph may err, and so may the witness. That is an infirmity to which all human testimony is lamentably liable."[21] SOURCE The photographic establishment, perhaps seeing that its economic interests were better served by demanding copyright privileges rather than serving as expert witnesses in legal proceedings, raised its voice against the truthfulness of the photographic image, as well.[22] "The most dangerous perjurer is he who not only holds an almost universally high reputation for truthfulness, but also telling the truth in the main, still introduces one such small and concealed element of falsehood as serves to turn the whole of his story on the side of unrightness," warned an article from The Photographic News, reprinted in many Anglo-American legal journals.[23] SOURCE The article recounted the story of a lawyer who, upon meeting a photographer friend, expressed his disgust toward the profession:

    "for," said he, "one of you fellows will make me lose an ancient-lights case to-morrow." "More fool you," answered the photographer; "you should get some photographs taken on your side also." In a close conversation of some fifteen minutes, which followed, the solicitor learned what he did not know before; he learned that the photograph may be made to speak for this or for that, according as the finger of mammon does point.[24] SOURCE

  14. The doubts expressed in the decisions of dozens of appellate courts during the 1870s prompted Francis Wharton, in his 1880 treatise on evidence, to caution lawyers and judges that "due allowance must be made for the fact that of some persons good photographs are rarely taken; that photographs taken of the same person in different lights or under different influences often do not resemble each other; and that photographs, as well as pictures, may be used as instruments of fraud."[25] SOURCE While Frank Rice's 1892 treatise on evidence praised photography, calling it "a scientific reproduction of a fac simile of the original object in nature, by a mechanical art which is every day advancing towards perfection,"[26] SOURCE Rice warned that courts should exercise especial caution in admitting photographic evidence. "Scientific investigation in many of its processes, is accurate and reliable, and scientific appliances are admirably calculated, under proper manipulation, to produce desired and accurate results; but, in this peculiar process of photography, much depends upon the manipulator."[27] SOURCE

  15. Nor did photographic manipulation end in the darkroom. In its manner of presentation a photograph could sway opinion, as well. "A material object," cautioned John Henry Wigmore, "when presented as purporting to be of a certain origin, always tends to impress the mind unconsciously, upon the bare sight of it, with the verity of its purport."[28]

  16. The argument that a photograph could be used to elicit a conclusion from a jury that could not otherwise be assumed in evidence was first raised in 1881, when a nineteen-year-old laborer named John Walsh was tried in the Kings County Court of Oyer and Terminer for the murder of a Brooklyn domestic named Barbara Gronenthal. Before the trial commenced the district attorney circulated among the jury a photograph of Miss Gronenthal taken prior to her death. A. H. Dailey, Walsh's attorney, argued that the photograph, in no way material to the case before them, was introduced in a manner "calculated to excite the pity of the jurors, for the unfortunate victim of the homicide, and correspondingly to excite their prejudice against the accused."[29] SOURCE

    The picture was thrust in the faces of the jury because it would impress them that a beautiful, innocent young girl had been ruthlessly stabbed to the heart by the defendant; and this at the very outset of the trial roused a dangerous prejudice in the minds of the jury against him.... If it was a competent and proper thing for the prosecutor to present this picture to the jury, he could with the same propriety have embalmed her body, encased it in a box, and at the opening of his address have exposed the corpse to the jury.[30] SOURCE

  17. The appellate court, while agreeing that the photograph had been inappropriately presented to the jury, held that its use did not constitute a reversible error, and let the verdict stand. More the subject of amusement than reasoned consideration, Dailey's objection prompted one commentator to remark "Mr. Walsh labored under the misfortune of having killed too good-looking a girl or one who had too adroit a photographer."[31] SOURCE

  18. But in the 1890s courts reconsidered the degree to which a photograph could influence a jury. In an 1898 case heard before the Mississippi Supreme Court, the court ruled that photographic reproductions of a murder scene should have been excluded, calling them "photographic representations of tableaus vivants carefully arranged by the chief witness for the State, whereby his version of the tragical occurrence should be brought vividly before the mind's eye of the jury, and be impressed upon the jury as the view of the actual occurrence."[32] Other courts followed suit, excluding photographs depicting "a gruesome spectacle of a disfigured and mangled corpse"[33] or photographs calculated to impress upon the minds of the jury "the mental and physical suffering of the" plaintiff.[34]

  19. In the face of these rulings, some nostalgically recollected a past in which photographs had commanded the evidential authority of "duplicate originals." At one time, recalled a letter writer to the Central Law Journal, "the camera spoke with verity. Salem Scudder in the 'Octoroon' is made to say 'the apparatus can't lie.'" But since the "introduction of clever trickery... pictures apparently natural though absolutely false may be made, [which] will nearly destroy confidence entirely" in photographic evidence.[35]

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