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3 Albany Law Journal 186
March 11, 1871

[Note on the case of Ruloff v. People]

1. A novel and interesting question arose in the recent trial of Rulloff at Binghamton, as to the admissibility in evidence of photographs. The following extract from the opinion of Mr. Justice Potter, delivered on the decision of the case at General Term, sufficiently presents the question and the holding of the court.

   The next exception is to the ruling of the judge to the offer of identification of the two burglars who were drowned, in attempting to cross the river, by photographs taken of them after death, and by witnesses that had known them in life. The objections were put in the following form:

   First. That it is premature.
   Second. It is immaterial, irrelevant and incompetent.
   Third. That the likeness is a substitution of one fact for another, and not allowable in criminal practice.
   Fourth. That the witness would not be speaking of facts which have fallen directly under his own observation.
   Fifth. That his testimony would be mere matter of opinion, and that these photographs were not taken till after these bodies had lain in the water two days and a night, and not until the next day following the time they were taken out of the water and had become swollen, bloated and disfigured.

   The court admitted the evidence and the prisoner's counsel excepted.

   At a later stage of the trial, the artist who took photographs was examined as to the taking of the photographs, and his testimony was objected to on the same grounds as above; it was admitted by the court, and the defendant's counsel excepted. He testified of the correctness of his instrument and to the correctness of the likeness taken in this case.

   No authority was cited to show this to be error, or upon the other side to sustain the rulings, nor in my opinion does it require any. It is the every day practice to use the discoveries in science to aid in the investigation of truth. As well might we deny the use of the compass to the surveyor or the mariner; the mirror to the truthful reflection of images; or spectacles to aid the failing sight, as to deny, in this day of advanced science, the correctness in greater or less degree depending upon the perfection of the machine and the skillful admission of light to the photographic instrument, its power to produce likenesses; and upon the principle, also, that a sworn copy can be proved when an original is lost or cannot be produced, this evidence was admissible.