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5 The Green Bag 60
February, 1893

    Practical Tests in Evidence
    By Irving Browne


  1. A photograph of a defendant, taken shortly before his arrest, is admissible to show his appearance then as compared with his appearance at the time of the trial, he having grown a mustache and otherwise changed his appearance in the mean time. State v. Ellwood (R. I.), 74 Atl. Rep. 782.

  2. The Supreme Court of Illinois, in Cleveland, etc. Ry. Co. v. Monaghan, 30 N. E. Rep. 871, observed:—

    "It is also urged, as a ground of reversal, that the trial court refused to admit in evidence certain photographic views of the locality where the accident occurred, and its surroundings. There are authorities which hold that photographs may be received in evidence, under certain circumstances, to assist the jury in understanding the case, provided they are verified by proof as being true representations of the subject. In the present case each photograph was taken two months after the accident occurred, by a merchant, who was a mere amateur photographer, and had never visited the scene of the occurrence before he took the photographs. One of the material questions was whether or not the view of the train which killed the deceased was obstructed by box cars then standing on a side track, and by other objects near the crossing. The pictures taken were not of the situation as it existed on the day of the injury, but as it was two months after the injury. At the latter date other box cars had been placed upon the track, and the leaves had fallen from the trees. The party taking the pictures did not know whether the objects arranged for his inspection were of the same size, dimensions, height, etc., as those which were there two months before, or whether they occupied the same position. Under these circumstances, we cannot say that the court below acted arbitrarily in refusing to receive the photographs in evidence. The preliminary questions of fact as to the verification of the pictures is addressed to the discretion of the trial judge, and his decision thereon is not subject to exception. Blair v. Pelham, 118 Mass. 420; Hollenbeck v. Rowley, 8 Allen, 473; Randall v. Chase, 133 Mass. 210; Locke v. Railroad Co., 46 Iowa, 109; Ruloff v. People, 45 N. Y. Z13. The exclusion of the photographs could not have done the defendant any injury, as the court permitted it to introduce a colored plat or diagram, which showed the situation of the main and side tracks, of the highway and crossing, of the ditches on the sides of the highway, and of the buildings and other objects at the place where the accident happened."

  3. The Supreme Court of Florida, in Ortiz v. State, l1 S. W. Rep. 613, observed:—

    "The admissibility of a map or diagram or picture, proved to be a correct representation of the physical objects as to which testimony is offered, or to the extent that it is so proved, for the use of witnesses in explaining their testimony and to enable the jury to understand the case more perfectly, whether such map, diagram, or picture be made solely by the hand of man or through the agency of photography, is affirmed in Adams v. State, 28 Fla. 511, and authorities there cited. See also 2 Rice, Ev. c. 52. Conceding that counsel's purpose was to use the photograph not as independent evidence, but for auxiliary purposes indicated above, or in other words, in connection with other evidence to enable the jury to understand and apply it, still we are satisfied that no error was committed by the judge in excluding this picture. Whether or not these pictures are proved to be true representations are questions to be decided, at least primarily, by the trial judge, (Blair v. Pelham, 118 Mass. 420); and it is certainly not shown that he has erred in this case. The misrepresentation as to the tree affects the very spot of the homicide, bringing the limbs of the tree against the house or veranda, right where it occurred. We are, moreover, entirely satisfied that this picture could have been of no assistance to the jury in the case, but would have served rather as an agency of confusion. The correctness of the diagram introduced by the State, as explained by the draughtsman, is undisputed, and afforded as full aid as could be deemed necessary to a clear understanding of the oral testimony."

  4. That photography can lie in respect to landscape as well as portraiture, is evident from an incident on the Tichborne trial. A photograph was exhibited of a place called "the grotto," the scene of alleged misconduct between the claimant and his cousin Miss Doughty. As the Chief-Justice said, it represented the grotto to be a spelunca or cave, a most retired and private spot, whereas in fact it was nothing but a path, about one hundred feet long, shadowed by trees, with a public way on one side and a public towing-path on the other. The Chief-Justice and Justice Lush both visited the place, and the former said: " I never was more astonished in my life, after having seen the photograph which was exhibited to us; " and the latter said, " I never supposed a photograph would have so disguised a place." It turned out that the picture had been executed under the direction of a member of Parliament who had bet £600 on the claimant's identity with Roger Tichborne, and figured as one of his most prominent supporters. See More's " Famous Trials," p. 166.

  5. In People v. Muller, 3, Hun, 209, an indictment for selling an obscene photograph, the photograph in question was exhibited to the jury; but other similar photographs, offered to show the extent to which the business of selling photographs of nude females had been tolerated by the public authorities, were excluded.

  6. Photographs of the putative father and the illegitimate child are not inadmissible, but are of but little weight. Re Jessup's Estate, 6 L. R. A.

  7. In People v. Jackson, 11 N. Y. 362, by consent of defendant, a photograph of the scene of the homicide was put in evidence. A witness who was present when the photograph was taken, and who saw part of the affray from a neighboring window, placed three persons in the highway to represent the positions of the defendant and two others at the time of the affray. His testimony as to that fact was held admissible.

  8. In Cowley v. People, 83 N. Y. 464; 38 Am. Rep. 464, an indictment against the clerical superintendent of an asylum called " Shepherd's Fold," for starving one of the lambs, photographs were held admissible showing the appearance of the lamb when rescued from the ungentle shepherd's hands and his appearance in his normal condition of avoirdupois on entering the fold. And so to show the appearance of the plaintiff's back three days after an assault and battery. Reddin v. Gates, 52 Iowa, 213.

  9. In his brief in Corcoran v. Village of Peekskill, 108 N. Y. 151, commenting on the admission in evidence of a photograph showing a repair of defective premises made after an accident, Mr. J. D. McMahon said it "was far more suggestive and forcible than the oral testimony which the court declared to be incompetent, and it illustrates the lines of Horace:—

    'segnius irritant animos demissa per aurem,
    Quam quae sunt oculis subjecta fidelibus.'"

  10. Which being literally interpreted means:—

    "A donkey's eyes are sharper than his ears."

  11. The whole passage was quoted by the court in Warlick v. White, 76 N. Y. 179. Mr. Conington's translation may perhaps be considered more elegant than mine:—

    "A thing when heard, remember, strikes less keen
    On the spectator's mind than when 't is seen.

  12. Unreliability of Photographs.—In his brief in Walsh v. People, 88 N. Y. 458, Mr. A. H. Dailey thus protested against the district attorney's exhibiting to the jury, in his opening, a photograph of the young woman, the victim of the homicide for which the prisoner was on trial:—

    "The poorest observer of human nature will tell us that the most exalted mind is the constant subject of impressions. made at the instant that the eye catches a glimpse or the ear a sound. No man looks at the face of another without immediate impressions, either favorable or unfavorable, being formed. It is a part of our nature to read character from the form of the head and the facial expression. It is a gift possessed by the brute creation as well as by mankind. A dog will take to a kindly face, and show his teeth at, or fly from, a vicious one. He will often fight a tramp, but fawn at the feet of a man who carries in his person an air of respectability. We instinctively turn away from human deformity, and are ill at ease in the presence of a face brazened by vice. We shun the presence of a man whose face denotes that brutal passion controls his actions. And it is not until man's better nature has been corrupted by sin that he feels at home in the habitations of the wicked. The reverse of the preceding remarks is also true when the impressions are pleasing. Take a face that indicates refinement, purity, and virtue, and impressions come like sunlight to the heart, and we carry them away and dwell upon them with benefit to ourselves; for whatever a man sees that impresses him as pure and noble, purifies and ennobles his whole nature. Pictures are the representations of reality, but seldom convey so correct an impression of the characteristics of the original as the original would if present. Photographs of persons adorn our homes and grace places of the highest art. The subject, particularly if a lady, adorns herself with whatever she can obtain that may tend to add a charm to her natural attractions. She arranges her toilet with consummate skill, and puts on her sweetest smile to increase the beauty of her person. The artist himself, by long experience, has learned to place his subject in the exact position where deformities, if any, will be concealed, and the most harmonious expression will be obtained. When the first impression appears the sitter is astonished to find that the camera has reproduced every freckle, every wrinkle around the eye, and every furrow upon the brow. She is displeased. 'But wait,' says the artist, 'until it is finished; those will all come out in the dressing.' And they do come out. He carefully expunges the freckles, wrinkles, and furrows. He darkens the hair and pencils the eyebrows, and traces eyelashes where they never grew. From this negative he now reprints and glosses up the picture. His sitter is delighted. She did not know she was so good-looking, nor did any one else. It may look something like the original, but it flatters, and hence is pleasing, and is distributed among friends and admirers, to produce a pleasing effect and favorable impression upon whomsoever shall see it. The picture in question most undoubtedly was not an exception to the general class of photographs. The picture was thrust in the faces of the jury because it would impress them that a beautiful, innocent young girl had been ruthlessly stabbed to the heart by the defendant; and this at the very outset of the trial roused a dangerous prejudice in the minds of the jury against him. They looked upon a picture of youth, innocence, and loveliness, and as it were, gazed upon the very bosom into which was plunged a wicked knife. They were roused from the very depths of their souls with indignation. They could not forget that picture if they would. It mattered little after that what evidence was produced to show that the prisoner's mind was unbalanced and crazed until he was an unfeeling madman. That face and form roused their feelings, pity, and vengeance at one and the same time, and they could not, would not, and did not stop to consider the question whether one so beautiful and young could have been so inhumanly killed by any but a madman. If it was a competent: and proper thing for the prosecutor to present this picture to the jury, he could with the same propriety have embalmed her body, encased it in a box, and at the opening of his address have exposed the corpse to the jury," etc.

  13. Then follows Antony's speech over Cæsar's body. Mr. Walsh labored under the misfortune of having killed too good-looking a girl or one who had too adroit a photographer.

  14. The misrepresenting capabilities of photographs have been vividly set forth in London Tit-Bits, as follows:—

    " The writer has often been asked whether photography can lie. The fact that it now plays an important part in life renders the question rather a serious one, and one that I am certain many would like to have answered. Well, then, photography can lie and be bad enough to bring a blush to the cheek of the worthiest disciple of Ananias. The wonderful strides made by photography during the past few years have not only enabled men to achieve great things by its aid, but it has also unfortunately assisted others to deceive and defraud their fellow-creatures. Photography assists the forger in so closely imitating bank-notes as to deceive the most experienced; but it also assists the scientist to detect these forgeries, and in some cases has aided justice to discover the offender. An amusing case appeared some time ago in one of the law courts. It was a dispute between two persons about a wall. The plaintiff complained that the defendant's wall obstructed the light to which he had a right. Defendant denied the charge. The most amusing part of the case, however, was when the complainant handed the judge some photographs of the obstructing wall, and the judge observed that it was evident from them that the wall certainly did obstruct the light and was apparently of unnecessary height and size. Then up rose the counsel for the defendant, and with a smile handed the learned judge his photograph of the same wall. In the first set of photographs the wall was of immense size, towering above all the winds; in the second, however, it was of liliputian dimensions, a most insignificant thing, unworthy of any dispute. Now these different effects can all be brought about by using lenses of different angles,—that is to say, lenses which collect or throw a more or less amount of view on a plate of given dimensions. A wide-angle lens is one that includes a lot of view in a picture, and as the angle is a long way different to that of the human eye, the picture in no way gives a correct representation of the scene. Readers should beware of house agents' photographs of the houses and property they have for disposal. They are nearly all taken with a wide-angle lens. With such an instrument it is possible to make a small London back garden resemble a large open park. The reason is that it causes all objects near at hand to appear large, and those a little distance away to recede far away in the background. The writer had in his possession a photograph of a man playing chess with himself and looking on at the game. There were of course three figures in the picture, but all of the same person, in different positions. The writer used to do something similar to this in making long panoramic views. A little slit runs along the sensitive plate and makes the exposure, and it was quite possible to include the same person in the picture in a dozen different places and in different attitudes. By photographing three persons arranged between two mirrors placed in a position thus (A), a photograph will be produced of thousands and thousands of persons crowded together. Spirit photography is another form of deception. Photographs are made of a sitter with a figure leaning over him. The figure retires when half the exposure is over, and thus has a misty, weird appearance in the picture. By composite photography almost anything can be done. This is accomplished by cutting out different parts of several photographs, arranging them together and re-photographing them. The society lady, when she goes to her photographer, would be horrified if she were to see her portrait as it is first produced by photography. The negative is, however, placed in the hands of the retouching artist, whose duty it is to take out all the wrinkles, spots, and blotches in the face, make the mouth a little smaller, the eyes brighter, and perhaps the eyebrows a bit darker, and the nose a bit shorter. Large lumps are then carved out of the waist, and the figure otherwise improved. When the finished portrait is handed over to her ladyship, she is charmed with it. Perhaps the appearance is not exactly the same as that shown by her looking glass; but she consoles herself with the reflection that photography cannot lie,—oh, dear no; impossible!"