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7 Albany Law Journal 50
(January 25, 1873)

    The Legal Relations of Photography.

  1. The development of the representative arts has greatly enlarged the boundaries of evidence. The rapidity and reliability of the photographic art is likely to render it pre-eminently useful in the prevention and proof of wrongs public and private, criminal and civil. The uses to which photography may be put in the identification of criminals, and thus indirectly in the prevention of crime, are well known. It has been asserted that the last objects which a dying man sees remain sufficiently long upon the retina of the eye to admit of being enlarged and preserved by photography. If this be true, in the case of a murdered man, the surrounding objects and persons in their actual attitudes may be ascertained. Although we have no case in which this scientific fact has been utilized in the identification of a murderer, such a use is by no means improbable in the future. In England it has been proposed for the purpose of identification, to appoint a public photographer, whose duty it should be to take and preserve the likenesses of all persons residing in England, every five years, and also likenesses of all persons leaving the country. In the United States, it has been suggested that a person naturalized should have a good photograph of himself attached to the "paper," either by the official seal of the judge or commissioner, or by being impressed upon the paper itself by an official photographer. For the identification of persons, also, it has been suggested that indorsees of commercial paper should be required to exhibit the likenesses with the indorsements of the indorsers, that marriage certificates should have the photographs of the husband and wife attached; that all persons entering the army or navy should be photographed by an official photographer. For the purposes of accurate delineation, it has been suggested that the photographs of witnesses should be taken at various stages of the testimony, in their tranquil moods, and in their moments of excitement when under a searching cross-examination, so as to be used on appeal or in cases where the deposition of the absent witness has to be read to the judge or the jury, that an official artist should take the photograph of a testator in the act of signing a will, to give the external evidences of capacity; that the surroundings of a murdered man should be taken by an official artist; that in cases of riot, photographs of the riotous assemblage be taken at intervals for use in subsequent legal proceedings. And it has been intimated that photography may be so utilized as to take pictures of riotous persons in the night, by powerful lights thrown upon the scene. But whatever may be the varied public and legal uses to which photography may be put in the future, the art has already been recognized in our courts as being of considerable importance in the establishment of asserted facts. The reliability of photographic evidence must always depend upon the certainty and perfection of the art. Things transitory and non-producible, when represented by a process completely true and accurate in its results, can be proved by no better or more reliable method than such a representation. The human eye and memory may be easily conceived to be less likely to take and retain perfect images of an object, a person, a set of surroundings, than a photographic instrument The superiority of photographs over mere hearsay evidence and the claim to be the very best of secondary evidence, if not original evidence, is not unfounded, but altogether reasonable, and particularly scientific. Nevertheless, the Courts have not yet had the subject of photographic evidence long enough before them to arrive at a definite and uniform decision as to the kind of evidence which photographs deserve to be denominated. In the Taylor will case (l0 Abb. N. S. 301) the surrogate said: "Those who are familiar with the details of photography are aware of the many circumstances that would have to be made subjects of affirmative proof. . . . The refractive power of the lens, the angle at which the original to be copied was inclined to the sensitive plate, the accuracy of the focussing, and the skill of the operator and the method of procedure, would have to be investigated to insure the evidence as certain." In this case photographic copies of a signature were held not admissible to aid an expert as a basis of opinion as to the genuineness of the original signature. But this decision is not in conformity with Marcy v. Barnes, 16 Gray, 161, wherein it was decided that upon the issue of the genuineness of a signature, magnified photographic copies of this signature are admissible in evidence, accompanied by preliminary proof that the copies are accurate in all respects, except as to size and colouring, and that the opinion of an expert may be based in part upon such copies. In this case, Merrick, J., said—"Under proper precautions, in relation to the preliminary proof as to the exactness and accuracy of the copies produced by the art of photographers, we are unable to perceive any valid objection to the use of such prepared representations of original and genuine signatures as evidence competent to be considered and weighed by the jury." And this is the position taken by the New York Court of Appeals in Ruloff's case, 45 N. Y. 213, in which objection was taken to the admission of photographic likenesses of two persons found drowned. This objection was not sustained, the proper preliminary proofs of the mode of taking the pictures and their accuracy having been given. Potter, J., who delivered the opinion at general term, said: "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." (See Albany Law Journal vol. 3, 186.) Although the authorities are few upon the evidentiary character of photographs, they are sufficiently decided to warrant the frequent admission of photography in court, to throw light upon obscure points. And there is great reason to predict that the importance of this art will be constantly increasing both in respect to the prevention and the proof of wrongs.—Albany Law Journal