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Visual Images in the Courtroom: A Historical Perspective

Article  in  Parallax · October 2008

DOI: 10.1080/13534640802416827

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Visual images in the courtroom: a historical perspective
Tal Golan

I. Intro.

Visual images have come to dominate the early twentieth-first century courtroom. A
cluster of sophisticated visual technologies -- computer-generated animation and
simulations, digitally-enhanced images of latent fingerprints or DNA profiles, “day-in-a-
life” videos, and medical imaging technologies such as computed tomography (CT),
positron emission tomography (PET), magnetic resonance imaging (MRI) and functional
magnetic resonance imaging (fMRI), as so on and so forth -- allow the contending parties
evermore powerful ways of visualizing their claims in court, and turn judge and jury into
virtual witnesses who can determine the facts of the case before them as if they saw them
with their own eyes.

Still, in spite of their growing prevalence and powers, the legal profession has insisted on
treating visual images in the courtroom as inferior in nature. As I describe in this article,
the courts have persistently argued that visual images possess no persuasion powers of
their own, and the judges have ordinarily allowed them into their courtroom only as
secondary evidence, to illustrate the oral stories told by the human witnesses. The reason
for this legal attitude, I argue, has not necessarily been the inferiority of the visual
medium, but rather the legal effort to protect human supremacy in the modern courtroom
in face of the quickly multiplying species of machines and their visual evidence.

II. Evidence of Things seen

Until not so long ago words ruled the courtroom. For many centuries the law was
considered “a profession of words;” 1 rhetoric, the art of words, was the trademark of the
legal profession, and legal evidence consisted mostly of words, spoken or written. This is
not to say that visual images had no place in the courtroom. Maps have played a central
role for centuries in property cases, trespass suits, and land and mining disputes;
paintings and drawings have described property in civil cases, and scenes of crime and
wounds in criminal cases; plans, models and diagrams have been indispensable in patents
litigation; portraits have been accepted in evidence on questions of identity, paternity, and
appearance; and so on and forth. Still, these visual images are all man-made and thus, by
their nature, dependent on the skills and observations of their human creators. As such,
they were never considered to have intrinsic evidentiary value of their own. If proven to
be correct representations of what was depicted in them, these visual images were
allowed into the courtroom, but their only function there was to illustrate the verbal
stories told by the human witnesses. 2

The cultural meaning and authority of visual images has begun to change early in the
nineteenth century. A new class of machines began to take the scientific world by storm.
Clocks, electrical machines, microscopes, telescopes, thermostats, barometers,
spectroscopes, high-speed cameras, X-ray tubes, and so on and so forth have
revolutionizing science: multiplying its facts, reshaping its practices, increasing its
practical value, and bolstering its cultural authority. The new medium via which these
machines communicated their impartial testimonials was visual. ‘Let nature speak for
itself’ was the slogan, and nature seemed to best speak through photographs and other
mechanically-generated visuals. These machines seemed also to offer a new mode of
moral economy, one which is no longer based on social status and moral character but on
regularity and mechanical indifference. Ever alert and never involved, they seemed to
deliver richer, better and truer evidence, often inaccessible by other means to human
beings. As such, these machines threatened to turn human oral testimony into an inferior
mode of proof and persuasion, in and out of the courtroom. 3

Nineteenth-century American legal culture, with its processes of fact-finding and proof
traditionally geared towards the reception of oral testimony by human witnesses, found it
hard to adapt to this new mode of persuasion. Machines may have succeeded where
humans failed, but they could not be put under oath, interrogated, and cross-examined.
Hence, it was not clear what role could be carved for them in the courtroom. The
incipient conflict came to a head in the 1870s and 1880s, with the advent of the first
popular visual technology, photography, and its deployment in a constantly broadening
range of legal contexts. Was the photograph a new and superior form of evidence,
nature’s unmediated testimony? Or was it a low-grade form of evidence, a human artifice
prone to manipulation? Late-19th-century lawyers fought bitterly over these questions
and the result was a fascinating legal discourse concerning the meaning and
epistemological status of the photograph.

The best historical study of the nineteenth century legal discourse concerning
photography was provided by Jennifer Mnookin. 4 The contours of the evolving legal
discourse, according to Mnookin, were defined by the two opposite views taking
photography to be either an especially privileged form of legal evidence or an especially
dangerous form of legal evidence. The first view emphasized the mechanical and
deterministic nature of the photographic process that seemed to allow nature to reproduce
itself directly unto the photograph. The second views emphasized the significant role that
human choices played in the photographic process. The first views marveled at the
unprecedented life-like fidelity of the photograph, likening it to “a mirror with a
memory.” 5 The second position pointed to the inherent distortions involved in every step
of the photographic process, from the choice of lighting and shooting angle to the
development process. The first view was well articulated by the 1882 opinion of the
Georgia Supreme Court. “We cannot conceive of a more impartial and truthful witness
than the sun,” the Supreme Court opined, “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 a witness.”6 But for others, it was exactly this pretence to impartiality and
truthfulness which made photographic evidence particularly dangerous. “Can the sun
lie?” asked the Virginia Law Journal in 1886. “The question is supposed to carry its own
answer. Perhaps we may say that though the sun does not lie, the liar may use the sun as a
tool. Let us, then, beware of the liar who lies in the name of the sun.” 7

Cultural commentators, especially those in arts, relished the multiple and often
contradictory meanings of photography. 8 The American courts, which started to use
photographs around mid-century9, could not afford to do so, however. Understood one
way, as nature’s impartial testimony, the photograph was primary evidence, which, like a
written documents, offered the greatest certainty of what was in it. Understood the other
way, as a human construct, prone to manipulation, it was a law-grade evidence, to be
used only in the absence of a better alternative. Understood both ways, as a human
artifice claiming impartiality and mechanical objectivity, the photograph was a dangerous
sort of evidence that must be carefully regulated. 10 But which was it?

It took the American courts more than three decades to stabilize a clear judicial strategy
for handling photographic evidence. The 1881 opinion of the New York appellate court
in Cowley v. People emerged as the principle precedent for the new strategy.
Photographs, the Cowley court asserted, are not different in kind from the traditional
man-made visual evidence that the courts of law have used for centuries:

“Photographic pictures do not differ in kind of proof from the pictures of a

painter. They are the product of natural laws and a scientific process. It is true that
in the hands of a bungler, who is not apt in the use of the process, the result may
 not be satisfactory. Somewhat 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. It is the skill of the
operator that takes care of these, as it is the skill of the artist that makes correct
drawing of features, and nice mingling of tints, for the portrait.” 11

The Cowley opinion simultaneously legitimized the photograph and diminished its value.
Emphasizing the central role played by human agency in the photograph’s construction, it
rejected the photograph’s claim to superior mechanical objectivity and supported the
view of the photograph as a human artifice. At the same time, it also suggested that there
was no reason why photographs should not be accepted in evidence, as long as they are
treated properly - i.e. with a grain of salt, just like all other visual images have been
treated for centuries.

Building on the Cowley rational, late-nineteenth century American courts developed a

novel evidentiary doctrine that came to be known as the Illustrative Evidence doctrine.
The doctrine postulated a new evidentiary category termed illustrative evidence, where
all visual images cohabitated indiscriminately. All illustrative evidence were considered
secondary in nature, which meant that they had no evidentiary value of their own and
were admissible only for illustrative purposes, to help the witness to better explain, and
judge and jury to better understand, the oral testimony given in court. 12

This was, in many ways, a fiction. The photograph was very different from all other
visual images. Its sense of reality and immediacy was unequaled. It recorded details more
accurately and communicated them more efficiently then any other visual or verbal agent.
Indeed, one could argue that it documented rather than illustrated. 13 Consequently, it
packed persuasive powers unlike any other visual image. The participants in the debate
over photographic evidence have all acknowledged these powers. Some marveled at
them, but most were alarmed by them. American legal culture has always been wary of
each and every position of power in the courtroom, and its evolving attitude toward the
new and powerful photographic technology was not exception. 14 The new doctrine was
developed therefore with the purpose in mind to control the exceptional powers of the
photograph.

But fictions have their legal uses and the crowding of the photograph with men-made
images offered the courts some distinct advantages. The procedures to deal with man-
made images were well defined and allowed the courts to streamline its treatment of the
new and problematic technology. More importantly, it allowed the courts to both keep
the photograph under a powerful check and protect the dominance of human testimonial
forms in the courtroom. The traditional admissibility test used to establish the veracity of
man-made images – having a witness familiar with the represented object testifying under
oath as to the accuracy of the representation – was now readily applied to photographs.
The demand that photographs be certified by an eyewitness testimony provided a
powerful check on photographic evidence and preserved the status of the traditional
eyewitness whose dominant presence in court was threatened by this new species of
machine-made testimony.

Still, the judicial effort to contain the suggestive powers of the photograph by treating it
as just another species of visual images was only partially successful. The judiciary was
able to efficiently control the meaning of the photograph only in the pre-trail stage,
during its admissibility procedures. Once the photograph entered the courtroom, the
judges lost much of their power over it. Fears of undue judicial influence on the jury have
led the majority of nineteenth-century US jurisdictions to restrict the powers of the trial
judge to instruct the jury during the trial on questions of facts. 15 Left to their own
discretion, the lay jurors often treated the photograph as primary evidence that constituted
the best proof of what was in it. Thus, although photographic evidence was already well
established by the end of the nineteenth century, a significant gap had opened up between
its pre-trial and trial practices; a gap that disclosed the contradictory understandings of
the photographs and the deep judicial ambivalence towards it. Formally, as the leading
evidentiary text of the period put it, the photograph was:

[S]imply nothing. Except so far as it has a human being’s credit to support it. It is
mere waste paper – a testimonial nonentity. It speaks to us no more than a stick or
a stone. It can of itself tell us no more as to the existence of the thing portrayed
upon it than can a tree or ox. We must somehow put a testimonial human being
behind it (as it were) before it can be treated as having any testimonial standing in
court. It is somebody’s testimony, or it is nothing. 16

In practice, though, properly verified photographs functioned in the courtroom as

independent, sometimes central, pieces of primary evidence that spoke for themselves
and afforded the greatest certainty about what was shown inside it. This discrepancy
between the judicial and popular understandings of the photograph, between judge and
jury, and between theory and practice, was not unworkable. Indeed, as long as an
eyewitness could be found to vouch at the admissibility stage for the photograph’s
veracity; and as long the jury could be trusted to properly handle to interpretation of the
photographic evidence and use it to better understand the issues before them, this intricate
double-standards arrangement worked out pretty well. However, it was not long before a
new visual technology emerged that challenged both ends of this arrangement and forced
the courts to reevaluate their theory and practices of visual evidence.

III. Evidence of things unseen

In December 1895, Professor Wilhelm Röntgen of the Bavarian University of Wüzburg
announced the discovery of a new kind of ray that seemed to contradict much of the long-
standing theories of light and matter. The announcement precipitated a feverish scientific
research into the nature of what quickly came to be know at the “X-ray.”
But the scientific community was not the only one interested in this mysterious ray. The
legal profession was also paying attention. The human body was a topic of much
litigation and the legal imagination was excited by potential of the new ray, which could
penetrate flesh as easily as glass and produce photographic images of the body’s hidden
secrets.

Malpractice was the most obvious area of litigation that could benefit from the new ray.
Advancing medical technology coupled with a growing population of lawyers and with
rising concern with physical appearance, have created by the late 19th century an
epidemic of malpractice litigation. The majority of these malpractice lawsuits were cases
involving fractures where patients found themselves with demonstrable problems and
sued the doctors who took care of them. Once in court, these cases usually turned into
prolonged and costly battles between competing medical experts who constantly failed to
agree with each other about their findings. The X-rays seemed to promise a way out of
this mess. Having direct access to the disputed facts via properly verified X-ray images
gave hope that malpractice litigation could be reduced, or at least allow the courts to
shorten its course and the lay jury to make better-informed decisions. 17

The legal embrace of X-rays was facilitated by the fact that their early application was
considered to be a new specialty in the field of photography. X-ray images were
produced inside the same dark rooms, by the same materials and chemical processes used
in regular photography. Accordingly, many of the workers actively engaged in making X-
ray images were photographers, and the anatomical images they produced were generally
thought of as photographs, which were admissible in court as illustrative evidence. One
should not be surprised then to find out that within a year of the discovery, while the
scientific world was still struggling to make sense of the mysterious ray and despite the
fact that fundamental questions regarding the reliability and meaning of the new images
and who should be considered competent to interpret them were still under discussion,
American courts were already allowing x-ray images in evidence. 18

The introduction of the new x-ray image placed new strains on the already uneasy
foundations of the illustrative evidence doctrine. To start with, the standard legal test
used to establish the veracity of illustrative evidence was not applicable to X-ray images.
The objects depicted on the x-ray plate were hidden from the naked eye. Thus, no witness
could be provided who could vouch from personal knowledge to the accuracy of the
representation. Without such standard eyewitness testimony, some judges refused to
allow x-ray evidence into their court. As one of them put it, “there is no proof that such a
thing is possible. It is like offering the photograph of a ghost when there is no proof that
there is any such thing as a ghost.” 19

Other judges solved this difficulty by allowing the admission of X-ray images in
evidence upon the proof not of their intrinsic accuracy but of the reliability of the
processes that produced it. “New as this process is”, reasoned the Tennessee Supreme
Court in September 1897,

“experiments made by scientific men, as shown by this record, have demonstrated

its power to reveal to the natural eye the understructure of the human body, and
that its various parts can be photographed as its exterior surface has been and now
is”. 20

Other state supreme courts soon followed the Tennessee Supreme Court and by the start
of the 20th century a wide judicial consensus emerged according to which the X-ray
image is to be understood as a variant of photographic evidence and be treated as
illustrative evidence. 21 The method of verifying the X-ray images was different, but the
courts discounted the difference. “There would seem to be no reason for making a
distinction between an X-ray and a common photograph,” proclaimed the Supreme Court
of Washington DC, “that is, either is admissible as evidence when verified by proof that
it is a true representation of an object which is the subject of inquiry.” 22 The courts were
aware of the fine line they were walking. ‘It is not to be understood’, cautioned the
Tennessee Supreme Court,

‘that every picture taken by the cathode or X-ray process would be admissible. Its
competency, to be first determined by the trial judge, depends upon the science,
skill and intelligence of the party taking the picture and testifying with regard to
it, and that lacking these important qualifications it should not be admitted.’ 23

Such caution, however, fell well within the established doctrine of illustrative evidence,
which treated the all visual images as fallible human artifices that needed to be carefully
verified.

But there was a second difficulty with the legal deployment of the X-ray image that was
not as easily manageable. Underlying the whole category of illustrative evidence was the
presumption that the lay juror could readily access the information it conveyed and use it
to better understand the oral testimony it came with. However, the information conveyed
by the X-ray image was not intuitive. The human body, an object of varying densities,
produced under the x-ray an image of superimposed shadows of varying opacity, without
real perspective. To correctly read the lesson of any X-ray picture, one had to make a
mental adjustment for the disproportion created by the obliqueness of the rays, caused by
the fact that they were not parallel but emanate from a point. Thus, once the courts began
to admit X-ray images, a demanding problem emerged: could the jurors be trusted to
interpret the images correctly by themselves or should experts be allowed to explain to
the jury.

The judicial solutions to this problem varied, exposing in the process some of the
potential interpretive conflicts buried deep within the doctrine of illustrative evidence.
Some judges resolved the difficulty by allowing experts to tell the jury what they thought
was in the X-ray plates. However, the rules of evidence dictated that expert witnesses
should be allowed to advise the trial jury on the evidence only when it was clear that the
jurors did not have sufficient knowledge to enable them to draw an informed decision
from the evidence by themselves. That was not the case with illustrative evidence, which
was designed to explicate oral testimony, not the other way around. Photographic
evidence, in particular, was assumed to be intuitively accessible to the jury, and was
tacitly treated in court as independent evidence that speaks best for what it shows.
Therefore, some judges forbade experts from telling the lay jury what in their opinion
was in the images. 24 Others judges looked for a middle ground and allowed the experts
to explain to the jury in general terms what a certain bodily condition would
hypothetically look like on the x-ray plate, but saved the last word for the jurors, who
were allowed to take the X-ray plates into the jury room, examine them, and interpret
their meaning. 25

The legal embrace of the x-ray set the courts on a collision course with the medical
profession. The doctors also developed keen interest in the x-ray and its medical
applications. 26 However, they were also extremely concerned that the new technology
would stir up a new outbreak of malpractice litigation. They were particularly distressed
by the simplistic claim that the x-ray allowed the to look into the human body as if
through an open window. It was common knowledge among physicians that juries in
malpractice cases were strongly biased towards the usually poorer and indisposed
plaintiffs. 27 Hence, the doctors were alarmed by the possibility of having their clinical
judgment subordinated in malpractice suits to the authority of the X-ray image as
interpreted by the jury. The early years of the x-rays were therefore characterized by
constant medical protest against the legal deployment of x-ray images. 28 The courts,
however, continued to increase their use of x-ray images in evidence.

Meanwhile a community of medical practitioners began to emerge that specialized in the

medical applications of the new technology. In December 1900, the first organized
meeting of X-ray operators attracted 150 medical practitioners to New York, and the
national organization they founded, the American Röntgen Ray Society, worked hard
during the following decades to obtain recognition of X-ray practice as a medical
specialty that came to be known as radiology. The threat of malpractice suits, which was
the major reason for the medical objection to the use of X-ray images by the courts, was
turned by the radiologists into an effective argument for embracing their specialty.
Whether the medical profession likes it or not, they argued, X-ray technology will
continue to play a central role in malpractice cases. Thus, instead of fighting the new
images the medical profession should strive to monopolize their interpretation. And
instead of castigating the legal fraternity for deploying them, the doctors should welcome
it as a partner in their effort to regulate X-ray practice. 29
The radiologists’ strategy brought once more to light some of the interpretive conflicts
buried within the legal practices of visual evidence. To read the x-ray images with
accuracy, the doctors argued, one needed to know anatomy, histology, and pathology in
detail, and be familiar with the various ways both normal and abnormal conditions appear
on the X-ray plate. Without such knowledge, the image was worthless, if not
dangerous. 30 However, the radiologists’ portrayal of the x-ray plates as enigmatic images
that needed a trained expert to interpret them ran against to legal practice of treating
properly verified photographs as independent evidence that could speak for itself. Thus,
in spite of the growing of radiology, many judges continued to forbid the radiologist from
telling the jury, except in general terms, what in their opinion was the meaning of the
images. 31 The radiologists continued to press. The X-ray image, they protested, is “as far
from being a photograph as possible for two things to differ,” and “there is really no more
reason why a jury should be allowed to see the skiagram than that there should be
exhibited to them the clinical thermometer, stethoscope, measuring tape, and chemical
apparatus, etc.” 32

Eventually, the radiologists’ pressure began to bare fruit. During the second decade of the
twentieth century, they established themselves as a fully-professionalized medical
specialty with standardized education and training, and successfully claimed monopoly
over the ownership, control, and interpretation of the x-ray images. 33 The courts had to
adapt to this change. What they had embraced a generation ago as a new species of
illustrative evidence that would allow the lay judge and jury direct access to the disputed
facts has now turned into a mute object that needed someone to speak for it not only
during the admissibility stage but also inside the courtroom. The judges therefore
increasingly allowed the radiologist to interpret the X-ray images for the jury. 34 The roles
in the courtroom were thus reversed. Now it was the human witness’s turn to illustrate the
visual images.

IV. The Silent Witness

In time the courts took judicial notice of both the reliability of X-ray technology and the
difficulties of non-experts in reading its visual images unaided. 35 This greatly simplified
the processing of x-rays images. During the admissibility stage it was now required only
that a knowledgeable person testify that the particular X-ray image offered in evidence
was properly produced and identified. The x-ray image was then admitted into the
courtroom and expert witnesses were summon to interpret its meaning to the jury.
Both procedures ran against the grain of the illustrative evidence doctrine. However, the
courts did not explicitly deviate from the doctrine. Instead, they treated the x-ray image
as an exception to it, necessitated by the unavailability of direct eyewitness testimony.
Still, the illustrative evidence doctrine made it a central point to equally treat all visual
images. The question was therefore begged: if the x-ray images were admitted upon proof
of the reliability of the technology that produced them, why shouldn’t regular
photographs also be admitted according to the same criteria? Indeed, the x-ray
admissibility rationale and procedure were gradually extended to regular photography
and by the end of the third decade of the 20th century it was already generally
acknowledged that regular photographs could be authenticated not just by an eyewitness,
but by any witness judged competent by the court to speak for the reliability of the
process that had produced them. 36

The practical implications were minor at first. Litigation tactics still dictated that
photographs should be authenticated by eyewitnesses and X-ray images by radiologists.
Nevertheless, the doctrinal implications were inescapable. The ground upon which visual
images could now be admitted into the courtroom was extended beyond human patronage
to include the intrinsic reliability of the machine that produced the image. The essential
relationship underlying the doctrine of illustrative evidence – the subordination of all
visual images to the human witnesses whose perceptions and knowledge the images
served to illustrate – was severed. Machine-made pictures, photographs included, were
now, potentially at least, independent evidence that could be admitted into the courtroom
upon their own merit tell and be treated there as substantive evidence of the things
depicted in them.

Still, the courts remained reluctant to advance an alternative theory under which
photographic evidence could be admitted independently of the illustrative evidence
doctrine. 37 The trial judges sporadically recognized the photograph’s independence, but
in the absence of an underlying theory that will justify their admissibility, they had to
resort to various kinds of specific factual elements as a sufficient foundation for
admission. 38 Legal commentators recognized this growing problem. In 1946 Dillard
Gardner, Chief Librarian of the North Carolina Supreme Court, urged the legal profession
to develop a new theory of visual evidence that would reflect the way photographic
evidence was actually used in court: 39
 “The X-ray, which is a photograph whose accuracy cannot be checked by human
vision, is welcomed in court, while the photograph, whose accuracy can be
independently verified, is at times coldly turned aside. An X-ray neither verified
nor accepted as competent is admitted and the court takes judicial notice that what
it represents is accurate, while a competent, verified photograph has, at times,
been limited to the doubtful status that it may be used only to ‘illustrate
testimony’ . . . . We have drifted into this strange anomaly in our law by losing
sight of this significant fact: photographs may, under proper safeguards, not only
be used to illustrate testimony, but also as photographic or silent witnesses who
speak for themselves.”

Gardner’s plea for a new theory of photographic evidence fell on deaf judicial ears.
New visual technologies continued to be introduced into the twentieth-century
courtroom, vastly extending the authority and usage of visual evidence. Sixteenth
millimeter motion pictures had been introduced into the courts already in the 1920s; color
photography followed in the 1940s, and videotaping in the late 1950. Still, none of these
new technologies challenged the judicial policy towards visual evidence. All of them
were successfully integrated into the evidentiary terrain under the illustrative evidence
doctrine to be treated merely as graphic expressions of a witness’s testimony.

It was only in the late 1960s, with the introduction of the yet another new species of
visual technology – the surveillance camera – that the issue of whether photographs could
tells their own story in the courtroom rather than illustrate the testimony of others was
finally put squarely before the court. Surveillance cameras, just like X-ray machines,
provided valuable images for which no verifying eyewitness could be provided.
However, unlike X-ray machines, surveillance cameras needed no one to speak for them
in court. They produced traditional photographic evidence that conveyed intuitive visual
information readily accessible to the jury. This meant that the courts faced, for the first
time, machine-made images that no longer required to be coupled with human agency to
express what it contained. The images of the surveillance camera were admitted into the
court upon the verification of the reliability their mechanical production, and inside the
court they could speak directly to the court with no need for a human mediator.

The legal status of surveillance camera evidence was clarified during the 1970s in a series
of cases involving bank robberies and check frauds. 40 In these cases, surveillance camera
photographs were successfully admitted on proof of the reliability of the process that had
produced them. Then, in the absence of any eyewitness identification, the courts allowed
the lay jury to deduce the perpetrators’ identity directly from the photographs. 41 The
defense appealed the convictions on the ground that they were constituted a clear
violation of the illustrative evidence doctrine, which dictated that photographic evidence
alone, unsupported by eyewitnesses, could not serve as a base for conviction. In order to
justify the convictions, that appellate courts advanced for the first time a new theoretical
framework that explicitly recognized that photographic evidence possess intrinsic
evidentiary value, even in the absence of a verifying witness who could vouch for their
accuracy. The new approach promoted in these appellate decisions have since grown into
a recognizable alternative to the illustrative evidence doctrine, and came to be known as
the ‘silent witness’ doctrine, for it finally recognized that, in some cases, a machine could
serve as witness by its own right and deliver substantive evidence that speaks for itself
and not for a human patron. 42

IV. Conclusion

The parade of new visual technologies has only intensified toward the end of the
twentieth century. Powerful computer hardware and sophisticated graphics software had
brought to the courts a swell of computer-generated animations and simulations. 43
Another wave of visual images was brought about by advances in neuroscience and
neuroimaging that offered the lawyers innovative ways to explain the behavior of their
clients. 44 The ever-increasing reliance on scientific expert testimony in modern trial has
also contributed to the growing deployment of visual evidence in the courtroom, as these
experts rely on visual evidence to make their opinions understandable to the lay judge
and jury.

Still, despite the growing popularity of visual images in and out of the courtroom, their
theory and practice have both remained highly ambivalent. The theory behind illustrative
evidence has only grown more ambiguous. Modern scholarship on evidence has divided
its terrain to two broad categories: substantive evidence, which is offered to prove a fact
in the case, and demonstrative evidence, which is offered merely to illustrate testimony
rather than as independent proof. However, no consensus exists about the definition and
content of demonstrative evidence. Some include in it anything that “appeals to the
senses.” According to this definition, demonstrative evidence includes visual images as
well as real items, such as a gun or a bloody glove from a murder scene. Unfortunately, it
also includes oral testimony, which definitely appeals to the senses. Other opted therefore
for narrower definitions, such as the one that describes demonstrative evidence as that
which conveys “a firsthand sense impression,” thus excluding oral testimony, which
recounts the witness sense impressions. Others yet insisted on an even narrower
definition that practically equates demonstrative with illustrative evidence. 45 No wonder,
then, that one of the most authoritative late-twentieth century treatises on evidence
described demonstrative evidence as “another of those bastardly classifications that serve
only to confuse the analysis of evidentiary issues.” 46

The practice of visual evidence has been equally inconsistent. Some courts have treated
visual images as if they were substantive evidence and formally admit them into
evidence, after the proper verification of their reliability. Other courts continued to admit
visual images only for illustrative purposes, but some of them nevertheless allowed the
jurors to carry these images into the deliberation room as is they were substantive
evidence. Yet other courts refused to admit visual evidence into evidence at all, but
allowed witnesses to use them as an aid during their testimony. 47 All this continues to
reflect the deep judicial ambivalence towards visual evidence that has accompanied us for
150 years by now, and the rising tide of evermore sophisticated visual and other sensory
technologies indicates that this ambivalence will not disappear any time soon. 48

1
Mellinkoff, David, The Language of the Law (Boston; Little, Brown, 1963) vi.
2
Mnookin, Jennifer L.,”The Image of Truth: Photographic Evidence and the Power of
Analogy,” Yale Journal of Law and the Humanities (1998) 10: 1–74, on 7-14.
3
Daston, Lorraine and Peter Galison (1992) ‘The Image of Objectivity’, Representations 40:
81–128.
4
Mnookin (1998), ref. 2.
5
Holmes, Oliver Wendell, “The Stereoscope and The Stereograph,” The Atlantic Monthly,” 3
(June 1859)
6
Franklin v. State, 69 Ga. 39; 49 Am. Rep. 748 (1882).
7
. Anonymous, “The Photograph as a False Witness,” Virinia Law Review 10 (1886), 644.
8
See for example Baudelaire, Charles, “Le Public Moderne et La Photographie,"1859,” in
Curiosités Esthiques, Ouvres Complètes de Charles Baudelaire (Paris: Louis Conard, 1923), I,
264-272; Emerson, Peter Henry, Photography, a Pictorial Art, The Amateur Photographer 3,
(March 19, 1886) 138-39; Stieglitz Alfred, Pictorial photography, Scribner´s Magazine 26, (Nov
1899); Cf. Marien, Mary Warner, Photography and Its Critics: A Cultural History, 1839-1900
(Cambridge: Cambridge University Press, 1997)
9
Luco v. United States, (1859) 64 U.S. reports, 515.
10
Mnookin (1998) ref. 2, 41-42.
11
Cowley v. People, 83 N.Y. 464 (1881) 478.
12
Editorial, “Photographs as Evidence,” Minnesota Law Review (1894) 2: 91–96; Lawyer,
George,” Photographs as Evidence,” Central Law Journal (1895) 41: 52–56; Wigmore, John
Henry, A Treatise on the System of Evidence in Trials at Common Law (Boston, MA: Little,
Brown.1904) §791.
13
Mnookin (1998), ref. 2, 45-50.
14
For the judicial attitude toward another technology, the lie detector, during the same period,
see Golan, Law of Man and Laws of Nature : A History of Scientific Expert Testimony in England
and America (Cambridge, MA: Harvard University Press, 2004), 211-253.
15
Sunderland, E., “The Inefficiency of the American Jury,” Michigan Law Review (1914) 13:
307–09; Anonymous, “The Changing Role of the Jury in the nineteenth Century,” Yale Law
Journal 74 (1964), 170-197.
16
Wigmore, ref 12, §790.
17
Golan Tal, The Emergence of the Silent Witness: The Legal and Medical Reception of X-rays
in the USA, “Social Studies of Science (2004) 34: 469-499.
18
Id.
19
Withers, Sanford (1934) ‘The Story of the First Evidence’, Radiology 17: 100–01, on 100
20
Bruce v. Beall (1897) 99 Tenn. 303, 41 S.W. 445.
21
Halperin, Edward C. “X-Rays at the Bar, 1896–1910,”Investigative Radiology, (1988) 23:639–
46; Goodrich, William W., “The Legal Status of the X-Ray,” Brooklyn Medical Journal (1903)
17:515–17; Scott, Orlando F., “Röntgenograms and their Chronological Legal Recognition,”
Illinois Law Review (1929) 24: 674–79.
22
Miller v. Dumon (1901) 24 Wash. 648, 64 Pac. 804.
23
Bruce v. Beall (1897) 99 Tenn. 303, 41 S.W. 445.
24
Elzig v. Bales (1907) 135 Iowa 208, 112 N. W. 540
25
Wilson, Lyman P. (1922) ‘The X-Ray in Court’, Cornell Law Quarterly 7: 202–34, 335–51.
26
See Golan, The Emergence of the Silent Witness (2004) ref. 17.
27
Sanger, Eugene F., “Report on Malpractice,” Boston Medical and Surgical Journal (1879)
100: 46 ; Law, George, “Malpractice Suits,” Denver Medical Times (1896) 16:2–11; De Ville,
Kenneth A., Medical Malpractice in Nineteenth-Century America: Origins and Legacy (New
York: New York University Press, 1990)
28
See Golan, The Emergence of the Silent Witness (2004) ref. 17.
29
Kassabian, Mihran, “The Roentgen Rays in Forensic Medicine,” Medico-Legal Journal
(1901) 1: 407–17; idem, “The Value of the Roentgen Rays in the Diagnosis of Fractures,”
Archives of the Roentgen Ray (1904) 9: 142–46.
30
Lange, Sidney, “The Present Status of the Roentgen Ray,” Lancet-Clinic (26 January 1907)
79–83, on 79.
31
Lang v. Marshalltown L. & R. Co. (1919) 185 Iowa 940.
32
Stover, George H., “The Professional Position of the Röntgenologist,” New York
Medical Journal (1910) 91: 16–17: on 16.
33
Eliot, Ellsworth, “The Legal Responsibility to the Surgeon and Practitioner Which
the Use of the X-Ray Involves,” Annals of Surgery (Philadelphia) (1916) 3: 483.
34
Marion v. Coon Construction Co. (1915) 216 N.Y. 178, 110 N.E. 444.
35
Scott, Charles (1942) Photographic Evidence: Preparation and Presentation (Kansas City,
MO: Vernon Law Book Co.) §269. Judicial Notice is a legal procedure of convenience whereby
the court recognizes that a certain factual claim had reached the stage of a generally known truth,
thereby relieving the litigants of the burden of producing evidence to prove that claim time and
again.
36
Anderson, John H., “The Admissibility of Photographs as Evidence,” North Carolina
Law Review (1929) 7: 443–49.
37
The only attempt to develop such a theory – of best secondary evidence - found little
following, See Mack, W., ed., Corpus Juris, (New York: American Law Book Co.. 1914–1922,
72 vols.) 22: 992.
38
See for example, People v. Doggett (1948). In that case a husband and wife were convicted of
oral sex perversion. The only evidence introduced at the trial was a photograph taken of the
defendants in flagrante delicto. No verifying witness was available, of course, but the photograph
was admitted anyway. See also Hartley v. A.I. Rudd Lumber Co. (1937) 282 Michigan 652 ;
Carner v. St. Louis-San Francisco Ry. Co. (1935) 89 S.W. 947 ; Watkins v. Reinhardt (1942) 293
Alabama 243; Lohman v. Wabash (1954) 269 S. W. 885.
39
Gardner, Dillard S., “The Camera Goes to Court,” North Carolina Law Review (1946) 24:244.
See also the McKelvey’s 1944 popular handbook on evidence that warned its readers that “some
photographs, even though offered as explanatory of condition, take on a double character and are
both illustrative of what the witness describes and mediums through which original evidence
reach the jury.” McKelvey, John J. (1944) Handbook on the Law of Evidence, 5th edn (St Paul,
MN: West Pub., 1944) §§380, 669
40
United States v. Hobbs (1968) 403 F.2d 977; United States v. Taylor (1976) 530 F.2d 639;
United States v. Calyton (1981) 643 F.2d 1071.
41
United States v. Hobbs (1968), United States v. Taylor (1976), United States v. Calyton 1981)
42
Olson, Edward V., “Case Note: Evidence – Adoption of the ‘Silent Witness Theory’
– Bergner v. State,” Indiana Law Review, (1980) 3: 1025–53; McNeal, James, “Silent Witness
Evidence in Relation to the Illustrative Evidence Foundation’, Oklahoma Law Review (1984) 37:
219–44.
43
Guthrie, Catherine and Mitchell , Brittan, “ The Swinton Six: The impact OF State v. Swinton
on the authentication of Digital Images,” Stetson Law Review (2007) 36: 661-723;
Rubinas, Theresa , “File Cabinets: A Thing of the Past? Document Imaging Offers Alternative to
Paper Trail,” 25 Legal Management (2006) 25: 50-52; Louie, David M , Use and Admissibility of
High Definition Video Visibility Studies, Computer Animations and Computer Simulations,
FDCC Quarterly (Fall 2007) 87:58; Broughel, Rotondo, James H., and Hatrick, Edgar B.,
“Digital Images: Don't Blink or You Will Miss Them,” Product Liability Law & Strategy (March
2005) 3-4; Witkowski, Jill, “Can Juries Really Believe What They See? New Foundational
Requirements for the Authentication of Digital Images,” Washington University Journal of Law
& Policy (2002) 10:267; Keane, James I., “Prestidigitalization: Magic, Evidence and Ethics In
Forensic Digital. Photography”, Ohio Northern Law Review (1999) 25:585.
44
Moriarty , Jane Campbell, “Flickering Admissibility: Neuroimaging Evidence in the
U.S. Courts,” Behavioral Sciences and the Law (2008) 26: 29–49; Feigenson Neal, “Brain
imaging and courtroom evidence: on the admissibility and persuasiveness of fMRI,”
International Journal of Law in Context (2006) 2:233–255; Kulynych, Jennifer, “Psychiatric
Neuroimaging Evidence: A High-tech Crystal Ball?” Stanford Law Review (1997) 49: 1249–70;
Dumit, Joseph, Picturing Personhood (Princeton, NJ: Princeton University Press, 2004)
45
Kirkpatrick, C. Laird C., and Mueller B. Christopher, Evidence: Practice Under the Rules
(Aspen, 2008, 2nd ed.) § 9.31 p. 1476.
46
Wright Charles and Kenneth Graham, Federal Practice and Procedure (Eagan, MN:
West, 1978) volume 22, § 5172.
 47
Brain, Robert D. & Daniel J. Broderick, “The Derivative Relevance of Demonstrative
Evidence: Charting its Proper Evidentiary Status,” University of California at Davis Law
Review ((1992) 25: 965-967.
48
Consider for example how the lawyers will deploy the emerging technologies of virtual reality.
See Bailenson, Jeremy N., “Courtroom Applications of Virtual Environments, Immersive Virtual
Environments, and Collaborative Virtual Environments,” Law and Policy (April 29006) 28:
249-270; Michael J. Thali et al., “Virtopsy—A New Imaging Horizon in ForensicPathology:
Virtual Autopsy by Postmortem Multislice Computer Tomography (MSCT) and Magnetic
Resonance Imaging (MRI)—A Feasibility Study,” Journal of Forensic Science 386 (Mar. 2003)
48: 386-403. See also Taslitz, Andrew E., “Digital Juries versus Digital Lawyers,” Criminal
Justice Magazine (2004) 19:4-13;
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