2 Central Law Journal 462
July 16, 1875
The Use of Photographs as Proof of Identity in Criminal Cases.
Upon the trial of a prisoner at the last Middlesex Sessions, before the assistant judge, the indictment contained an allegation of a previous conviction for felony, and in support of that allegation, evidence was received of a photograph taken, as it was alleged, of the prisoner whilst undergoing his previous sentence. As the report states: "This photograph was submitted to the jury, but as it represented him without moustaches, which he now had, they had considerable doubt as to his identity, but when the foreman asked the prisoner to stand facing them, they were satisfied, and they immediately returned a verdict that he was the same man." The admission of a photograph under such circumstances, certainly appears to be a novelty, and one which may lead to serious and untoward consequences. It is certainly a new class of evidence, and one, the admission of which deserves very mature consideration. We know that it is every day practice at nisi prius to use in evidence photographs of houses, lands, railways, etc., for the purpose of illustrating the localities, or the events prominent in the cases; but they are used for the purpose alone of producing fac similes of things about which there is no dispute, or other words, to produce occular demonstration of that which could only be otherwise inefficiently described. If, indeed, there should be any question as to whether or not the thing photographed is the thing in actual dispute, the photograph would be discarded until the proof of identity is established. A photograph is never admitted in evidence to prove the existence of a disputed fact. It is, indeed, used to refresh the memory of a witness who may be speaking to such disputed fact, but of itself it is never admitted as proof in such a case.
In the instance now under consideration, the photograph was said to be like the prisoner, but that only proved, even if shown to have been taken correctly, that it was like the person who was intended to be represented by it, but it in no way proved that the prisoner was that person, unless, indeed, it was to be assumed that there are not two persons alike. It may indeed be said that it is common evidence, which is every day receivable, that a witness speaks to the identity of a party by saying he was like the accused, but that evidence really goes for nothing, unless there are facts which connected the accused with the charge. To say that a man is the guilty party, merely because he is like a person who may have committed the offence, is giving no evidence upon which a jury can be justified upon acting. A photograph of an individual may indeed be used to refresh the recollection of a witness as to a party's identity, but it is conceived it never can be admitted as primary evidence of identity. If admissible, it could only be so by showing that it was only taken of the party it purports to represent; but taken, it would be necessary to show who that party was, and if that be shown, the photograph becomes use less for any purpose of identity, since the identity is proved by positive testimony.
But suppose, for the sake of argument, it is admitted that the photograph is evidence of identity, it must be open to an accused to answer this evidence by the production of a counteracting photograph—of one, say, taken just before or just after his imprisonment for the previous offence; and in such case the jury would be required to determine upon conflicting photographs.
The question really is this: Can photographs, where the facts they are intended to illustrate are in issue, be submitted to a jury as evidence of those facts, or must they be confined alone to mere matters to be used to refresh the recollection of witnesses? The growing use of photographs renders the question a most important one, especially in criminal cases where a previous conviction is charged, for if they can be submitted to a jury as primary evidence, then upon a witness hesitating in his proof of identity, a photograph may be put in for the purpose of supplying the deficiency. We trust this question will soon come under the consideration of the court for crown cases reserved.—[The Law Times.]
[Upon the admission of photographs as evidence of identity, see Udderzook's case, 1 CENT. L. J. 352. In other cases, see 1 CENT. L. J. 96, 159.]