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The General Principles of the Law of Evidence in their Application to the Trial of Criminal Cases (The Lawyers' Co-Operative Publishing Co.: Rochester, 1893.)
Chapter XVII. Photography in Evidence
§ 100. Value of Photography as Evidence.§ 100. Value of Photography as Evidence.The recent discoveries of Dr. Lippmann have imparted additional value to the art of photography as a means of evidence. Without employing pigments or coloring matter of any description, this discovery by the use of a sensitized film, transparent and free from all granulations or imperfections, taken in connection with an ingenious combination of mirrors of a most perfect polish gives to the negative when fixed the colors of the object photographed. This reproduction of the color is not an artificial accomplishment, but is entirely due to natural phenomena. For many years the problem in photography has been directed toward this discovery. It gives a permanent value to the photographic process which it has never heretofore possessed, and its direct influence upon evidentiary law must have immediate and permanent effect in that it imparts an additional element of certainty to a process that is already of incalculable advantage in both art and science.
§ 101. The Celebrated Udderzook Case Examined.
§ 102. Accuracy of Photograph may be Questioned.
§ 103. Photographs of Documents, when Admissible.
§ 101. The Celebrated Udderzook Case Examined.The phenomenal accuracy of the photographic art has become well recognized as a successful ally in the detection of crime. Few cases of recent years have been more tragic in their incidents or more startling in their developments than that of the famous case of Udderzook v. Goss, 76 Pa. 340. This case was tried in 1873, and the opinion of Chief Justice Agnew is especially significant upon the subject now under review. Its obvious pertinency will be questioned by none. The portion contributing to this discussion is in the following language:
"All the bills of exception relate to the use of a photograph of Goss. This photograph, taken 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 the photograph, the chief being to the admission of it to identify Wilson and Goss. That a portrait of a miniature, painted from life and proved to resemble the person, may be used to identify him, cannot be doubted, though, like all other evidence of identity, it is open to disproof 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. 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 the 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 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. 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 eyes. 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."
§ 102. Accuracy of Photograph may be Questioned.Photographic pictures are the product of natural laws and a scientific process. It is true that in the hands of a bungler, the result may not be satisfactory. Much depends for exact likeness upon the nice adjustment of machinery, upon atmospheric conditions, upon the position of the subject, the intensity of the light, the length of the sitting. Most of evidence is but the signs of things. Spoken words and written words are symbols. So the signs of the portrait and the photograph, if authenticated by other testimony, may give truthful representations. When shown by such testimony to be correct resemblances of a person, we see not why they may not be shown to the triers of the facts, not as conclusive, but as aids in determining the matter in issue, still being open, like other proofs of identity, or similar matter, to rebuttal or doubt.
Photographs at best, are but secondary evidencemere "hearsay of the sun;" and when the lack of better evidence compels a resort to them, the correctness of the photographic copies offered must be shown by proof that the process of taking them was conducted with skill and under favorable circumstances, as well as that the result has been a fair resemblance of the object. Taylor Will Case, 10 Abb. Pr. N. S. 310, 318; Hynes v. McDermott, 82 N. Y. 41, 50, 37 Am. Rep. 538; Cowley v. People, 83 N. Y. 464, 478, 38 Am. Rep. 464.
Still it must be deemed established that photographic scenes are admissible in evidence as appropriate aids to a jury in applying the evidence, whether it relates to persons, things or places. Cozzens v. Higgins, 1 Abb. App. Dec. 451; Cowley v. People, supra; Durst v. Masters, L. R. 1 Prob. Div. 373, 378.
§ 103. Photographs of Documents, when Admissible.Photographic copies of public documents on file in the departments at Washington, which public policy requires should not be removed, are admissible in evidence when their genuineness is authenticated in the usual way, by proof of handwriting. Leathers v. Salvor Wrecking & Transp. Co. 2 Woods, C. C. 680.
In the case of United States v. Messman (N. Y.) 1 Cent. L. J. 121, which has been on trial before Judge Blatchford, an interesting point of evidence was decided. According to the Herald's report of the case, the action was brought to recover $253.79, on the following charge: Mr. Messman, on the 20th of July, 1864, presented his pay-rolls for the months of January and February, 1864, and upon the presentation of that paper received $253.79. It is charged by the government that on March 18, 1864, he had received his pay for those months, and the inference raised by the government was that he had obtained double pay. The counsel for the defense set up that one of the pay-rolls was a forgery. The government had sent on photographic copies of those payrolls purporting to have been signed by Mr. Messman. The United States assistant district attorney offered to put those photographic copies in evidence, but Judge B1atchford declined to accede to the offer, saying that as the defense was that one of these pay-rolls was a forgery, counsel for the government must put in the originals. The counsel replied that the court of common pleas, in a case of this kind, had decided that where it was set up that a paper was forgery, a photographic copy of it could be received in evidence. Judge Blatchford: "I am not bound by the decision of thc court of common pleas, and I shall not concur in its decision. To admit in evidence a photographic copy of a pay-roll would be acting contrary to well established rules of evidencein fact, it would be monstrous."
With the consent of defendant, a photograph representing the place where the homicide was committed, was put in evidence, W, a witness for the prosecution, who was present when the photograph was taken and who had seen part of the affair from a window near by, placed three persons in the highway to represent the positions, which, according to his recollection the deceased, the defendant and another person present at the homicide occupied. W's testimony as to that fact was received under objection and exception, and it was held to be no error. People v. Jackson, 111 N. Y. 362.
Where the party introducing a photograph in evidence verities the process by which it was taken by showing that the result obtained fairly resembles the object photographed, the picture becomes competent evidence in the case, provided there is proper occasion for the introduction of any view of the person or premises and the modern cases generally support this view, nor are the cases adverse to these views. Ruloff v. People 45 N. Y. 213. Udderzook v. Com. 76 Pa. 340; Cowley v. People, 83 N. Y. 465, 38 Am. Rep. 464.
And in another case, when the genuine signature and the disputed signature were both brought into court, magnified photographic copies of each, together with the originals; were submitted to the inspection of the jury, and it was held not to have been error. Marcy v. Barnes, 16 Gray, 162; Cozzens v. Higgins, 1 Abb. App. Dec. 451; Church v. Milwaukee, 31 Wis. 512; Hollenbeck v. Rowley, 8 Allen, 473; Com. v. Coe, 115 Mass. 481; Walker v. Curtis, 116 Mass. 98; Ruloff v. People, supra; Cowley v. People, supra; Robinson v. Mandell, 8 Cliff. 169; Taylor Will Case, 10 Abb. Pr. N. S. 300; Tome v. Parkersburg R. Co. 39 Md. 36, 17 Am. Rep. 540. See Daly v. Maguire, 6 Blatchf. 137; Re Foster's Will, 34 Mich. 21; Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Re Stephens, L. R. 9 C. P. 187; Leathers v. Salvor Wrecking & Transp. Co. 2 Woods, C. C. 682; Luco v. United States, 64 U. S. 23 How. 515, 16 L. ed. 545; Reddin v. Gates, 52 Iowa, 210; Ordway v. Haynes, 50 N. H. 159; Hynes v. McDermott, 82 N. Y. 41, 37 Am. Rep. 538; Durst v. Masters, L. R. 1 Prob. Div. 373.
The general rule is without contradiction that where the photograph is shown to be a faithful representation of whatever it purports to reproduce it is admissible, as an appropriate aid to a jury in applying the evidence; and this is equally true whether it relates to persons, things or places.
For further exposition of this subject see 2 Rice, Civil Evidence, chap. LII. p. 1163, et seq.