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34 The Albany Law Journal 457
December 4, 1886

    The Photograph As False Witness.

  1. 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; and this is the false witness whom lawyers fear with most reason, his detection and exposure being in ordinary cases utterly beyond the strength of a cross-examiner who is able easily to confute the clumsy and inexpert perjurer who invents the whole of his story. In recognition of the especially objectionable character of the witness who lies with truth, there is current among patent lawyers a rather expressive mode of comparing the noun liar the comparison running thus: Positive, Liar, Comparative, Thundering Liar; Superlative, Scientific Witness. But the genius who formulated this invented for the occasion a fourth degree of comparison—a degree not recognized by the followers of Lindley Murray—the Kata-Superlative, and as Kata-Superlative to the noun liar, he places the name of one of our best known scientific witnesses, one who has won honors and position by the judicious exercise of his function of professional witness: but out of respect to the law of libel we must complete the inflection of liar by a blank thus: Kata-Superlative, ——. Now, considering the very vast amount of truth told by the camera, and the general notion that a photograph must be, without question, an almost ideal of truthfulness together with that firmly impressed idea that a photographic portrait must be a good likeness, it really becomes a question whether photography should not hold the fourth place in the grammatical intensitives of the noun liar; whether —— ought not to be hoisted down from his proud eminence, and the camera be allowed to reign there in his place. In commenting last week on a decision given by Justice North, and which decision seems to have been very much influenced by a photograph, we alluded to one way in which photography may give directly false evidence, and we may now mention another typical case. A friend of ours, who some years ago had a portrait studio in the city, formed a speaking acquaintanceship with a solicitor, as the result of meeting him almost daily at a dining-room. One day the solicitor greeted the photographer by expressing high disgust toward photography and photographers "for," said he, "one of you fellows will make me lose au ancient lights case tomorrow." "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. An inspection was made, and it was found that a photograph so untruth-telling as to be altogether satisfactory to the plaintiff could only be taken under the following conditions: The lens must include an exceptionably wide angle; the view must be taken from the roof of a certain building in the neighborhood, and late in the afternoon. Much work had to be done. The lens had to be borrowed from a celebrated optician, who had only just succeeded in constructing his first extra wide-angle lens. Difficulties as to accede to the desired standpoint kind to be overcome but all the obstacles were surmounted, and to the delight of the lawyer, a photograph was produced which showed the new wall as being close to the plaintiff's premises, and magnified into disproportion, while the long, black evening shadow trailed across the diminished building of the plaintiff, rendering his windows almost invisible for the very blackness. Here was a striking contrast to the defendant's photograph, which showed the plaintiff's building large, and illuminated by the midday light, while on the remote edge of the picture was the recently erected wall, to be seen as small and distant. To revert to the case which was heard last week, Justice North, when he said that "he had seen some very clear photographs which convinced him that the inscription was put up in such a way that passers-by would not be deceived," may have been fully aware of all the circumstances we referred to. He may have known that a signboard may be painted with two totally different inscriptions, one of these inscriptions being latent to the eye, and patent to the ordinary sensitive plate while the other inscription is patent to the eye, but latent to the sensitive plate. He may have studied the recent developments of ortho-chromatic photography, and he may, perhaps, look forward to the time when it may be possible to represent on the sensitive plate all objects in their correct relative intensities. He may have known how photography has sometimes done good service in rendering obvious things invisible to the eye: how stars invisible to the eye can be seen by the recording eye of the camera; how erased writing has been brought to light, and how the markings of eruptive disease have been seen by the camera before the eye could detect them. Knowing all this, he may have satisfied himself that the photographs were truthful once. There is however a possibility that he did not know much about the possibilities of the case, and that he took it for granted that photographs cannot lie. It so, he has created a dangerous precedent. Photographs ought to be seldom received except in conjunction with the personal evidence of the photographer who took them, and when there is satisfactory independent evidence that the photographs are truth-speaking witnesses. "Can the sun lie?" is often asked; but asked much in the same spirit as that in which he who told so much unpleasant truth to the people of Israel asked, "can the leopard change his spots?" A question which is supposed to carry its own answer. Perhaps we may say that though the sun does not lie, the liar may use the sun as a tool, and in doing so, he, the perverter of the truth, may quote such old questions as Quis dicere falsum solem audeat? assuming that the answer is so obvious as to be altogether superfluous. Let all then beware of the liar who lies in the name of truth.—Photographic News