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5 The Green Bag 15
January, 1893

    Practical Tests in Evidence
    By Irving Browne


  1. Photographs have been much resorted to in our courts in late years for many purposes, as in questions of personal identity, to show localities, to test handwriting, and the like. In Eborn v. Zimpleman, 47 Tex. 503, S. C. 26 Am. Rep. 315, counsel made the following ingenious plea for the introduction of photographic copies instead of original writings:--

    "Until photography was discovered, nothing in nature was exactly like any other thing, except that thing's image reflected in a polished surface, which disappeared when tile object was removed. Until this discovery there was, therefore, reason in tile rule which required the production of the original paper writing as the best evidence of its appearance. Science now steps forward and relieves the difficulty, by making permanent, and materializing with minute exactness the reflected image. What reason thus remains why a discovery which destroys the foundation for a rule should not be used as proposed in the ascertainment of right? Every object seen with the natural eye is only seen because photographed on the retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877, of the Philadelphia Photographic Journal.) Take the case of a murder committed on the highway; on the eye of the victim is fixed the perfect likeness of a human face. Would this court exclude the knowledge of that act from the jury, on the trial of the man against whom the glazed eye of the murdered man thus bore testimony? In other words, would a living eye-witness, whose memory only preserved the fleeting photograph of the deed, be heard, and the permanent photograph on the dead man's eye be excluded? We submit that the eye of the dead man would furnish the best evidence that the accused was there when the deed was committed, for it would bear a fact, needing no effort of memory to preserve it. It would not be parol evidence based on uncertain memory, but the handwriting of nature, preserved by nature's camera."

  2. The photographic copies were held improper in that case, and leaning to the same view is Matter of Foster's Will, 34 Mich. 21; while the contrary view is supported by Re Stephens, 9 C. P. 187; S. C. 8 Eng. (Moak) 481; Leathers v. Salvor Wrecking Co., 2 Wood, 682.

  3. Photographs of the defendants were received in People v. Smith, 121 N. Y. 578, to prove their identity with persons formerly convicted in Philadelphia.

  4. In comparison of handwriting magnified photographs are much received, under decisions like that in Marcy v. Barnes, 16 Gray, 161, which holds them admissible "under proper precautions in relation to the preliminary proof as to the exactness and accuracy; "but they were excluded in Tome v. Railroad Co., 39 Md. 693; s. c. 17 Am. Rep. 540, the court observing: " Photographers do not always produce exact fac-similes of the objects delineated, and however we may be indebted to that beautiful science for much that is beautiful as well as ornamental, it is at last a mimetic art, which furnishes only secondary impressions of the original, which vary according to the lights and shadows which prevail while being taken." And in Matter of Foster's Will, 34 Mich. 21, the court leaned to the same view, observing: "It is not always true that every photographic copy would be safe on any inquiry requiring minute accuracy. Few copies can be so satisfactory as a good photograph. But all artists are not competent to make such pictures on a large scale, and all photographs are not absolutely faithful resemblances. It is quite possible to tamper with them; and an impression which is at all blurred would be very apt to mislead on questions of handwriting where forgery is claimed. Whether it would or would not be permissible to allow such documents to be used, their use can never be compulsory. The original and not the copy is what the jury must act upon, and no device can properly be allowed to supersede it." This was said of the proposal to furnish the jury with photographic copies of a will alleged to be forged.

  5. Photographs have been admitted to show premises, as a highway, Blair v. Pelham, 118 Mass. 421; a cellar floor, Cozzens v. Higgins, 33 How. Pr. 439; the grade of a street, Church v. Milwaukee, 31 Wis. 512; the scene of an accident, Dyson v. Railroad Co., 57 Conn. 9, S. C. 14 Am. St. Rep. 82; Chestnut Hill, etc. Co. v. Piper, Pennsylvania Supreme Court, 1884; and to dispense with a view by the jury, Locke v. Railroad Co., 46 Iowa, 109. In Church v. Milwaukee the court said:--

    "Of course, the main thing was to bring before the minds of the jury the location of the plaintiff's lot and improvements and all the surroundings; and this had to be done by the description of witnesses acquainted with the place, or by pictures or diagrams. If the photograph was a perfect representation of the premises, why should it not be admitted in evidence to aid the jury, in determining how they were affected by the alteration of the grade? It is said that the premises themselves were the highest evidence, and if the jury could have had a view of them, it would nave greatly assisted them in passing upon the questions before them. So undoubtedly it would. But as a view was impracticable, the jury had to obtain the best idea they could of the location of the premises with reference to the changed grade. They were compelled to rely upon the description of witnesses, pictures and diagrams, and such means of information as they had before them. And it appears to us that it was no violation of the rules of evidence to allow the photograph of the premises to go to the jury with the other testimony."

  6. So photographs have been admitted as likenesses of deceased persons. Udderzook v. Commonwealth, 76 Penn. St. 340; Ruloff v. People, 45 N. Y. 213.