Luco v. U. S., 64 U. S. (23 How.) 515 (1859). For a brief account of the historical development of photographic evidence see Charles C. Scott, Photographic Evidence: Preparation and Presentation (St. Paul, 1969), § 1.
Albert S. Southworth, "An Address to the National Photographic Association of the United States, Delivered at Cleveland, Ohio, June, 1870." 8 The Philadelphia Photographer 315 (October, 1871), p. 319.
George Lawyer, "Photography as Evidence," 41 Central Law Journal 92 (August 2, 1895) p. 50.
"The Legal Relations of Photography," 7 Albany Law Journal 50 (January 25, 1873), p. 50.
"The Legal Relations of Photographs," 17 The American Law Register 1 (Jan, 1869), p. 3-4. A writer for the Albany Law Journal also suggested "that in cases of riot, photographs of the riotous assemblage be taken at intervals for use in subsequent legal proceedings." "The Legal Relations of Photography," 7 Albany Law Journal 50 (January 25, 1873), p. 50. For a thorough examination of the relationship between the photograph and the state, see John Tagg, The Burden of Representation: Essays on Photographies and Histories (Amherst, 1988). Tagg argues that "the coupling of evidence and photography in the second half of the nineteenth century was bound up with the emergence of new institutions and new practices of observation and record-keeping... central to the restructuring of the local and national state in industrialised societies at that time and to the development of a network of disciplinary institutions..." Ibid., p. 5.
Lawrence M. Friedman, A History of American Law (New York, 1973), p. 134-137.
As the nineteenth-century legal scholar James Bradley Thayer opined: "The law of evidence is the creature of experience rather than logic." William Twining, Rethinking Evidence: Exploratory Essays (Oxford, 1990), p. 86n.
James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (London, 1898), p. 508-509.
Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, 1977), p. 258. Horwitz argues that the development of legal formalism during the 1840s represented the "culmination of efforts by mercantile and entrepreneurial interests during the preceding half century to transform the law to serve their interests, leaving them to wish for the first time to 'freeze' legal doctrine and to conceive of law not as a malleable instrument of their own desires and interests but as a fixed and inexorable system of logically deducible rules." Ibid., p. 256.
William Reynolds, "A National Codification of the Law of Evidence: Its Advantages and Practicability." 16 The American Law Review 1 (January, 1882), p. 1-2.
Ibid., p. 4.
Thus, in regarding the admissibility of photographs as evidence, civil cases cited criminal cases, state courts cited federal courts, and American jurists noted with approbation exemplary British cases. An Alabama case decided during the Confederacy, for example, was commonly cited as having first considered the issue as to whether a non-expert might testify to a photograph's accuracy. Barnes v. Ingalls, 39 Ala. 193 (1863).
"The Legal Relations of Photographs," 17 The American Law Register 1 (Jan, 1869), p. 4, 6.
Ibid., p. 4-5.
Edgar Allan Poe. "The Daguerreotype," Alexander's Weekly Messenger (Jan. 15, 1840), p.2.
Philip Hone, "December 4, 1839," The Diary of Philip Hone, 1828-1851 (New York, 1889), v.1, p. 391-92.
Bernard Edelman, Ownership of the Image (London, 1979), p. 45.
Strictly speaking, of course, the disputed photographs of copyright litigation are themselves evidence, as are those involving the selling or distribution of pornographic photographs or in which payment for a contracted photograph is in dispute.
"Photographing Criminals," 10 The Photographic News 524 (November 2, 1866), p. 524.
According to Jane Gaines, the social construction of the photographer as producer-artist is irresistible, "since the relations of production will demand it." Jane M. Gaines, Contested Culture: The Image, the Voice, and the Law (Chapel Hill, 1991), p. 46.
"The Legal Relations of Photographs," 17 The American Law Register 1 (January, 1869), p. 8. See also, Alan Trachtenberg, Reading American Photographs, p. 19: "Holmes implies that value or meaning resides entirely in the image itself."
"Copyright in Photographs," 16 Chicago Legal News 256 (April 19, 1884). The issue of authorship and button-pushing is detailed in Walter Benn Michaels, "Action and Accident: Photography and Writing," The Gold Standard and the Logic of Naturalism (Berkeley, 1987), p. 215-244.