A Treatise of the Law of Evidence in Criminal Issues
Francis Wharton, LL.D.
Philadelphia: Kay and Brother, 1880
VII. Pictures and Photographs: Plans and Diagrams.
| Pictures and photographs are admissible |
Camoys Peerage case, 6 Cl. & F. 801.
Whart. & St. Med. Jur. ii. § 123; Ruloff v. People, 45 N. Y. 215; S. C., 5 Lansing, 261; Udderzook's case, 76 Penn. St. 840; S. C., Whart. on Hom. Appendix; Schaible v. Ins. Co. 9 Phila. 136; aff. 1 Weekly Notes, 369; Beavers v. State, 58 Ind. 530; Luke v. Calhoun Co. 52 Ala. 115.
See Beers v. Jackman, 103 Mass. 192, ruling that evidence of similarity was inadmissible in bastardy suits.
As to the secondary character of photographs see supra, § 175.
The admission of photographs, as a means of identification, is thus discussed by a learned judge of the Supreme Court of Pennsylvania:—
" All the bills of exceptions, except one, relate to this question of identity, the most material being those relating to the use of a photograph of Goss. This photograph, taken in Baltimore, on the same plate with a gentleman named Langley, was clearly proved by him, and also by the artist who took it. Many objections were made to the use of this photograph, the chief being to the admission of it to identify Wilson as Goss; the prisoner's counsel regarding this use of it as certainly incompetent. That a portrait or a miniature painted from life, and proved to resemble the person, may be used to identify him, cannot be doubted, though, like all other evidences of identity, it is open to this proof or doubt, and must be determined by the jury. There seems to be no reason why a photograph, proved to be taken from life, and to resemble the person photographed, should not fill the same measure of evidence. It is true, the photographs we see are not the original likenesses; their lines are not traced by the hand of the artist, nor can the artist be called to testify that he faithfully limned the portrait. They are but paper copies taken from the original plate, called the negative, made sensitive by chemicals, and printed by the sunlight through the camera. It is the result of art, guided by certain principles of science.
"In the case before us, such a photograph of the man Goss was presented to a witness who had never seen him, so far as he knew, but had seen a man known as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a case depends on the reliability of the photograph as a work of art, and this, in the case before us, in which no proof was made, by experts, of this reliability, must depend upon the judicial cognizance we may take of photographs, as an established means of producing a correct likeness. The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation's experience. It has become a customary and a common mode of taking and preserving views, as well as the likenesses of persons, and has obtained universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses." Agnew, C. J., Udderzook v. Com. 76 Penn. St. 352, 353.
Blair v. Pelham, 118 Mass. 420; Cozzens v. Higgins, 1 Abb. (N. Y.) App.451; Church v. Milwaukee, 31 Wis. 512.
Tichborne Trial, Cockburn, C. J., Charge, ii. 640. See article in 20 Alb. L. J. 4.
Marcy v. Barnes, 16 Gray, 161; Hollenbeck v. Rowley, 8 Allen, 473; Com. v. Coe, 115 Mass. 481; Walker v. Curtis, 116 Mass. 98; Blair v. Pelham, 118 Mass. 420; Ruloff v. People, 45 N. Y. 215.
Marcy v. Barnes, 16 Gray, 161. Infra, § 561. See Robinson v. Mandell, cited supra, § 10.
Taylor Will case, 10 Abb. N. Y. Pr. N. S. 800; Tome v. R. R. 99 Ild. 86. See Daly v. Maguire, 6 Blateb. 181; Foster's Will case, 84 Mich. 21; Eborn v. Zimpelman, 47 Tex. 503; Robinson v. Mandell, Pamph. R. 683 (Boston, 1868), gives some curious testimony as to the inaccuracy of photographs of writings.
See Stephens, in re, L. R. 9 C. P. 187; Daly v. Maguire, 6 Blatch. 137; Leathers v. Wrecking Co. 2 Wood, 682. Supra, § 175.
Ordway v. Haynes, 50 N. H. 159.
"A plan or picture, whether made by hand of man, or by photography, is admissible in evidence, if verified by proof that it is a true representation of the subject, to assist the jury in understanding the case. Marcy v. Barnes, 16 Gray, 161; Hollenbeck v. Rowley, 8 Allen, 473; Cozzens v. Higgins, 1 Abbott (N. Y.), 451; Ruloff v. People, 45 N. Y. 213; Udderzook v. Com. 76 Penn. St. 340; Church v. Milwaukee, 31 Wis. 512. Whether it is sufficiently verified is a preliminary question of fact, to be decided by the judge presiding at the trial, and not open to exception. Com. v. Coe, 115 Mass. 481, 505." Walker v. Curtis, 116 Mass. 98.
In illustration of the use of photography, in connection with the production of evidence, the following cases, for which I am indebted to an eminent scientist, will be of value.
"In the case of the Rumford Chemical Works v. Beeker, 11 Blatch. 652, the question was raised as to the relative porosity of bread made with yeast in the usual manner, and that prepared with the baking powder of the complainants. Evidence was introduced by the defendants as follows: President Henry Morton, of the Stevens Inst. of Technology, Hoboken, N. J., who organized the photographic observations of the eclipse of 7th August, 1869, under the Nautical Almanac Office, and otherwise an expert in photography, was produced, and deposed to having prepared sections of both varieties of bread of exactly equal thickness, and to having made microscopic or highly enlarged photographs of the same, under identical conditions. The original negatives of these, and also positive prints from the same, were received and filed as exhibits.
In the case of H. D. Cone v. Porter & Bambridge, a question being raised as to the identity in character in embossed lines on writing paper claimed to infringe a patent for such lines when made of an 'ogee' form, the same expert above named was produced, and deposed to having prepared slips of each variety of paper under consideration, attaching the same side by side in the four positions, which would give every possible variety to the arrangement of light and shade in the experiment, and then making photographs of the entire sheet, or card, with a very oblique illumination.
"By this means the variations of surface in the embossed lines was strongly marked by light and shade, and the identity or difference of the various samples clearly shown.
"In the case of Funcke v. New York Mutual Life Insurance Co., in 1876, in the Superior Court of New York city, a question arose as to the alteration of a cheek from $100 to $1,500. The alteration had been confessed by a notorious forger, who had been employed to make it, but who was under sentence for another offence. Photographs were exhibited, showing decided traces of the original writing, especially of the word "One," under the newly written "Fifteen." It was objected that these traces of the original writing, which were not visible on the check itself, were also invisible on certain of the photographs. It has been suggested to us by President Morton, that this was probably due to a too long exposure of the negatives not showing the traces. The ink, which had been obliterated by the use of dilute sulphuric acid and hypochloride of soda (Labaraque's solution), had left only a very faint trace of oxide of iron, which, by reason of its yellow color, would have a special absorbing power for the actinic or photographic rays, but yet even in this regard the difference between this remnant of the ink and the white paper was very slight, and if the exposure was at all too long, even the yellow traces reflected light enough to render the negative film opaque. It was therefore necessary that just time enough should be given to allow the white paper to produce its effect, when the slightly yellow parts would be distinguishable by their inferior action."
The following is from the Albany Law Journal of June 10, 1876:—
"A novel application of the art of photography was made in a case on trial before Mr. Justice Dykman, in the Supreme Court Circuit, New York, on Friday, June 2, 1876. The question at issue was, whether the certification of a check, purporting to have been made by the teller of the bank on which it was drawn, was genuine or a forgery. The teller swore that it was not his certificate, and several experts pronounced the signature a forgery; while other experts, called by the holder of the check, were equally positive that the signature was genuine. Thereupon the courtroom was darkened, and "Prof. Combs," with the aid of a calcium light magic lantern, threw an image, from a photographic negative, of the check in question, upon the wall, to show that the writing was free and flowing, and not the labored and retouched signature, which is the usual accompaniment of forgeries, and which some of the experts insisted appeared in this case. This exhibit seems to have had the desired effect, as the jury found that the signature was genuine." See infra, § 561.