Photographs as Evidence

“We cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the wound on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show truth, why should not this dumb witness show it?”

—   Franklin v. State of Georgia, 69 Ga. 36; 1882 Ga.

Introduction

Photographs are used constantly for evidence.  They can be used both informally and formally for a wide variety of purposes.  They can be used informally between family members to show what someone’s relatives looked like, how old someone was during a certain time period, the clothing during a certain era or they can be used formally to solve crimes or as historical value.   Photographs seem to be trusted more then any other medium, such as drawings or paintings.  “Unlike non-photographic depictions, photographs typically provide evidence specifically about what they depict...we are inclined to trust them in a way that we are not inclined to trust even the most accurate of drawings and paintings (Meskin, Cohen 1).”  Even though photographs are being trusted more than other mediums, there are still some reasons to question the authenticity of a photograph. In this study, I will look quickly at the history of photographs as evidence and analyze how this is changing and how authenticity is often questioned.

The History of Photographic Evidence

Photos have acted as historical evidence in America since around the time of the Civil War.   The Civil War was the first war that was photographically documented.   Mathew Brady was one of the main photographers during the civil war.  He first took pictures for parents in order to document soldiers who might be lost in the war.  This grew and he started hiring other photographers to go out and photograph civil war scenes.  

Since then photographs have been used to document wars, crime scenes, and expose corruption in communities.

Photos have also acted as forensic evidence for decades.  The earliest evidence of photographs as evidence in court cases goes back to prison inmates in the mid 1800s in Belgium and in Denmark.  These were just mug shots that were taken by amateurs.  In the 1870s the act of documenting criminals started spreading to other cities.  Professional photographers were then employed to take pictures of criminals.  This was the first time photography was seen as anything other than art.  Organizing these photographs into archives became a problem.  Rogues Galleries was on of the first forensic photographic archives to keep a record of these mug shots.  

Alphonse Bertillon was one of the earliest and a photographer who changed photographic documentation of criminals.  He published La Photographie Judiciaire in 1890, which contained rules for taking pictures of criminals.  He stated that the subjects should be in good lighting and that it should include a face and profile.  Bertillon also was the first photographer to document crime scenes.  

Photographs in Court

In order to accept a photograph in a court case the principal requirements are relevance and authentication.  In general the trial judge has to accept the photograph.  In some cases custody of the undeveloped film will be required.  If the authenticity is challenged the photograph can be revoked.  The person who introduces the photograph should be able to testify about why this photograph is accurate.

Digital Photography as Legal Evidence

Digital photographs have started to replace traditional photographs.  Although this is great in some ways, digital photography has also added a lot of challenges and complexities to the value and authenticity of photographs in court cases.  The ability to change and modify a digital photograph is so much easier.   Ten years ago an article in Whole Earth Review argued that photography as evidence will soon be finished.  With Photoshop and other software applications it is easy for a user to remove elements from a photograph, rearrange an image, change the color, contrast, light and shadow.   Although there are ways to manipulate a traditional photograph such as staging and dark room editing it is much faster and easier to manipulate a digital photograph. “Because a digital image can be precisely copied at will (until it is printed or displayed on a computer monitor) there exists no way to distinguish a copy from the original. And because digital data may be copied absolutely perfectly, any discrepancy between two versions of a single digital image is likely to be the result of intentional alteration, either innocent or malicious.”  This is a risk.  A witness who is testifying that a digital photograph is authentic and has not been altered is harder to prove and if it was proved that it was manipulated this could ruin a court case and they could get in trouble for fraudury.  Courts and legislatures are trying to establish new procedures to assure the accuracy of photographs.  Some people have argued that only the photographer should be able to validate the authenticity of a photograph in court.  This is difficult though because the photographer is not always available.  People are also suggesting attaching a digital signature to the file. 

Other Ways Photograph Evidence has evolved

With smaller cameras, smart phones, and the advancement of social media, more photographs are being taken then ever before.  Recently the public has been getting involved in solving crimes.  This is called crowd sourcing where they look to the public to aid forensic officers in solving crimes. Anyone walking around who has a cell phone can take a photograph in minutes and collect evidence.  One of the earliest examples of crowdsourcing was in April 2012, where police in Virginia were trying to investigate a fatal hit and run.  They were stuck until they decided to involve the general public and ask for help.  With the help from the publics’ photographs they were able to identify the car as being a Ford Pick up truck.  Another more recent example of crowdsourcing was with the Boston Marathon.  With photographs they were able to find pictures of people who looked out of place.  Although crowdsourcing is great for court cases and for evidence there is also some challenges.  Rumors can spread quickly as can inaccurate information.   One example of this was Richard Jewell a security guard who was accused of the bombings at the Atlantic Summer Olympic Games.  Although he was cleared he still dealt with harassment.  It also can make the public more aware of court cases and people can escape or ruin a mystery.

Conclusion

As digital photographs, smartphones and social media sites are growing it is changing the way photographs can be seen and used in court and as historical value.  The judicial system needs to adjust to this growing change and come up with new ways to adapt to this new social phenomenon.   

Sources Cited

Glynn, Casey. "Boston Marathon Bombing "Crowdsourcing:" How Citizens Are Using the Internet to Help Solve Crimes." CBS News. CBS News, 18 Apr. 2013. Web.

Jaeger, Jens. "Police and Forensic Photography." The Oxford Companion to the Photograph. Ed. Robin Lenman: Oxford University Press, 2005.

McCarvel, Roderick T. "You Won't Believe Your Eyes: Digital Photography as Legal Evidence." Digital Photography as Legal Evidence. N.p., n.d. Web. 20 Apr. 2014.

Meskin, Aaron, and Jonathan Cohen. "Photographs as evidence." Photography and Philosophy. Essays on the Pencil of Nature (2008): 70-90.