Hearsay of the Sun
Photography, Identity, and the Law of Evidence in Nineteenth-Century American Courts

Thomas Thurston


This essay considers the legal reception of photography as a type of evidence in the appellate cases, legal treatises, and legal journals of the last half of the nineteenth century. Confronted less with a new form of technology than with a new form of representation, one that challenged received notions of original and hearsay evidence, photographers and the Anglo-American legal press speculated as to the evidentiary rank of the new photographic art during an era in which the nature of identity itself was changing.

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. Its apparent reflective plagiarism of nature especially recommended its use as evidence. However, as photographic technology advanced and the recognition of the manipulation involved in the production of the photographic work increased, skepticism as to its evidentiary value grew stronger. The legal profession's increasing reliance on expert testimony also tarnished the photograph's reputation for incontrovertibility, for as its use became more common, photographic experts began to face each other across the courtroom.

In the racially polarized 1890s, the correlation between social identity and physical appearance became problematic. The legal enforcement of socially constructed identities could not depend on the veracity of mere appearance or its photographic representation. And while the belief that interior truths could be divined from external appearances was in dispute, newer photographic applications were entering evidentiary jurisprudence. X-ray photographs, artifacts representing that which could not be verified upon physical examination, seemed to entirely divorce inner truths from external characteristics, instead finding those truths hidden away by the body itself.

The primary documents used in this hypertextual essay represent a relatively contained selection of materials concerning the body of legal reasoning on the subject of photography and evidence during the period under consideration. Anglo American case law and the treatise tradition, with its emphasis on precedent and commentary, is a literary form well suited for hypertext.

It is my hope that this hypertextual experiment may help to establish standards in incorporating primary texts into critical essays, foster collaboration among scholars from different disciplines, and perhaps lead to the development of more ambitious legal-historical hypertexts.