November 23

APPEALING SUBJECTS
BY CRAIG MANSON
A Monthly - Weekend With Shades - Column

In Appealing Subjects, we explore the strange and wonderful relationship between photography and the law.

One aspect of this relationship is the use of photographic evidence in court. Crime scene photographs come immediately to mind, but obviously there are myriad other uses for photographic evidence: identification of persons, places, or things; depicting relationships, spatial and otherwise, between people and between things, and so on. In a contest over a will, for example, one party might offer into evidence photographs showing the obvious love and affection between that party and his rich Aunt Gertrude; the idea being that Gertrude could not have been of sound mind when she left him out of the will.

Photographs may be used in place of things too large or too impractical to be brought into the courtroom.

The field of endeavor today known as forensic photography or legal photography got its start early. According to one source, a Frenchman in 1839 photographed his wife having a liaison with her lover, and used the photograph to obtain a divorce. According to the source, this would have been less than a year after Louis Daguerre first described his photographic processes to the French Academy of sciences.

First Mug Shot

Another early use of photographs in legal matters is said to have been the creation of the "mug shot" in Belgium in 1843. The daguerreotype above may have been the first.

The idea of mug shots was slow to catch on in America. The image below is an early mug shot from the Kearney, Nebraska Police Department.

Under the rules in American courts, a photograph must be "authenticated" before it is offered into evidence. This can be done by a person with knowledge of the subject matter of the photograph, say, the photographer. But it's not always necessary to have the photographer testify--it need only be someone sufficiently knowledgeable of the subject matter as it existed at the time of the photograph. The general rule is that a photograph is admissible as long as it is a reasonable representation of the thing in question. An expert witness might also testify to authenticate a photograph where no other witness can do so.

Some people fear that the digital age has made photographic evidence unreliable to prove facts in court. For example, consider whether this photograph could be authenticated! But in fact,authentication is an ancient problem. Consider the following two scenarios: (click images to enlarge for easier reading)

The Photographic Times

The Photographic Times
Image 2

Shield

Shield

Nonetheless, photographic evidence has been accepted in American courts since before the turn of the 20th century. The first use of photographic evidence in an American court appears to have occurred in the 1859 1857 case of Lugo Fossat versus United States. In this matter, a federal court sitting in California found admissible photographic enlargements evidence of signatures on land transaction documents in a dispute over land in the Sierra Nevada. The United States Supreme Court affirmed the lower court decision.

The court observed thusly in identifying the parcel at issue:

"The evidence discloses that there is on the main Sierra or mountain chain an oak tree of extraordinary proportions and striking appearance. Situated on a spur or ridge of the mountain, it is a conspicuous natural object from all parts of the valley and for many miles around. The photograph exhibited in court shows that its size and isolated situation are such as to strike the eye and arrest the attention of the most casual observer. Few who reside in that part of the country but are acquainted with the existence and situation of this tree, and it appears in the speech of many of the former inhabitants to have given a name to the Sierra on which it is situated. If then, as appears indisputable, the Sierra referred to in the grant be the ‘Sierra Del Encino,’ the Sierra on which this oak tree is situated must be the one."

It wasn't long however before photographs appeared in court in a different context. Again in 1859, a federal district court jury in New York City found indecent a number of photographs and the court ordered them seized. The jury however recommended to the court that the owner thereof be remunerated by the government for his loss. The judge promised the jury that he would pass the recommendation along to the appropriate officials. My own sense of decency, not to mention that of the proprietress of this space, preclude showing any of those photographs here.

There are however limits, on the use of photographic evidence just as there is on other evidence. Evidence which is likely to be extremely prejudicial while having little probative value is frequently excluded.

This may include crime scene photographs in some cases. This principle was established early in the 20th century. For example in the Wisconsin case of Guhl versus Whitcomb, wherein a 20 year old woman was hit by a train,the court said: (109 with us. 69, 85 in W142, Wisconsin 1901, and state wrap all A.D3, page 889(this weird "citation" was the product of my voice-recognition software that's supposedly 99% accurate!).

"We cannot pass silently the reception in evidence of photographs showing rear views of the players person nude from below the shoulders to mid thigh. Such photographic exposure of the body of a 20 year old girl in a courtroom full of men is even more grossly improper in shocking in the conduct it disclosed in brown piece one third, 44 with 282, 285, 28 am wrap 582 of which this court expressed its condemnation in a scathing words of Chief Justice Ryan Colin no such indecency is ever necessary or should be tolerated in court. If the condition of any private part of the body of any party, male or female, is material on any trial, it should be privately examined by experts out of court, an expert testimony be given of it. Such exposure as was made in this case, it made without leave of the court, might well be punished as a content; made with a section of the court, it is nonetheless improper and indecent, well calculated to disgrace the administration of justice, and to bring it into ridicule, if not into contempt. It is hoped that this Court may never have another occasion for such censure." To those words we cannot and need not add, save to reiterate the sentiments they express, and to invoke for them the careful attention of those, whether of court or bar, who may be tempted to repeat such defilement of the proceedings in a court of justice."

Sources:

1. Source for story about French divorce case:

Evidence Photographers International Council, History of Evidence Photography, http://epic-photo.org/documents/History-of-Evidence-Photography.pdf (accessed 29 Oct 2008)

2. Magazine articles:

The Photographic Times, Vol. XXXIX, 1907, p.459

Shield's Magazine, Vol. III, No. 6,December, 1906, pp 418-419

3. Acknowledgement:

Kearney Police Department Mug shot, courtesy of Library of Congress.

4. citation to Lugo Fossat Case: 25 F.Cas. 1157, 1159 (C.C.Cal. 1857).

5. citation to trial court case case about indecent photos

United States v. One Case Containing Photographs

New York Times October 13, 1859, p.2, Law Reports--Indecent Photographs

6. cite to Guhl v. Whitcomb is: 109 Wis. 69, 85 N.W. 142 (1901).