In his book, "La Photographie Judiciarie," [R.A. Reiss, LA PHOTOGRAPHIE JUDICIAIRE, Charles Mendel Publisher, Paris, France, 1903).] Reiss mentions an interesting document which he discovered in the September 10, 1854 issue of the JOURNAL DES TRIBUNAUX, written by a Swiss lawyer named Pellis who relates:
We still remember the newspaper reports on the many thefts in churches and private residences that occurred in the last year. Because of the curious circumstances surrounding these thefts, one was led to believe that a clever and important gang was involved. The startling thing was that no traces were ever found after any of the crimes had been committed. The thieves disappeared into thin air, none of the stolen objects turned up, and no strangers were noticed. It became obvious that many accomplices had to be involved, that fast means of transportation were available and that the goods were disposed of at far away places. Several men were finally picked up and brought before the Justice of the Peace in Lausanne. Among the suspects, there was a mysterious persons whose name and antecedents were unknown and against whom it was very difficult to find anything but vague suspicions, because he had succeeded in keeping out of the spotlight.
The Justice had a portrait taken of the prisoner who was suspected to be dangerous. This was done by the daguerreotype process. He sent copies of it to the police of all the Swiss cantons and to law enforcement agencies in the neighboring countries. Not much success was expected from this novel attempt, but finally news came in from the Grand Duchy of Baden that the suspect had been recognized in the village where he had lived. The villagers furnished the suspect's name and details on his tumultuous youth. The investigation was continued and wardens of the many prisons where the suspect should have been detained were interviewed. He was recognized everywhere, and all called him very sly. Confronted with the depositions and the evidence, the suspect did not resist long and made important confessions. [Freely translated from Reiss' book by the author of this article.]
According to Reiss, who is usually quoted as the ultimate authority on the subject, this was the first fully documented judicial application of photography.
Belgium has older "mugs"
In the light of evidence discovered later, but seldom quoted for it had been little emphasized, it seems that credit should go to Belgium, instead of to Switzerland. The Belgian criminologist and author of many books, Theophile Borgerhoff, conducted extensive research on the same subject and in 1920 he published an article about the first photographs in law enforcement which he illustrated with four daguerreotypes reproductions of prisoners, taken in Brussels in 1843 and 1844. [Th. Borgerhoff, "Les premières photographies judiciaires," BULLETIN DE LA SOCIÉTÉ D'ANTHROPOLOGIE DE BRUXELLES, Vol. XXXV (1920).]1 His staff extracted these daguerreotypes from the archives of the "Sûreté publique."
These cases are more than ten years older than the newspaper clipping from Switzerland referred to by Reiss, and we find that the Belgian instances are fully documented. The records about the men could not be located anymore, but their jail entries and prison records are marked in a register kept at the prison of Brussels.
I am deeply indebted to Mr. P. H. J. Calaber, Director of the Belgian identification branch of the Ministry of Justice, who kindly furnished me with photographic copies of four daguerreotypes, [three of which are reproduced herein]. In his letter, Mr. Calaber wrote me that these pictures are the oldest ones found and can be considered the ancestors of judicial photography. [Excerpt from letter of Mr. Calaber to the author of this article: "Ces portraits constituent les plus anciens daguerréotypes judiciaries connus et peuvent être considérés comme étant les ancêtres de la photographie judiciaire."
It appears therefore that to Belgium should go the credit for the first documented use of the daguerreotype by law enforcement agencies. If one considers that the invention of the daguerreotype process was demonstrated in 1839 before the Academy of Sciences in Paris, the innovation of the Belgian authorities is certainly meritorious, especially when one knows that Belgium gained its independence only in 1830.
Alphonse Bertillon is credited for introducing the profile view and adding it to the full face photograph for criminals and suspects. He did make extensive use of photographs, since he wrote in 1883 that "in less than ten years, the Prefecture of Police had collected some 75,000 photographs. [Alphonse Bertillon, "La Préfecture de Police à l'Exposition d'Amsterdam - L'Identification de Récidivistes," LA NATURE - REVUE DES SCIENCES, pp. 197-203, Vol. 11, No. 534, Paris (Aug. 25, 1883).] In the same article, Bertillon explains the headaches that this tremendous collection gave him before he devised a classification system for mugs:
Flash photos introduced
In 1883, the safes and vaults in New York turned photographers, if we can believe a short item in an old French magazine which published a story said to have been "faithfully" translated from an unnamed American newspaper. The item tells us that a German mechanic had invented a safe that not only activated an alarm bell when touched, but also projected a beam of electrical light with which a camera makes an instantaneous photograph of the features of the thief.
But just as the early police photographers had to overcome much resistance on the part of not too eager "models," the courts must have had many struggles of their own, when faced with the decision of whether or not to accept this new art of "painting with light" as evidence.
Early court rulings on admissibility of photographs
Going back to the early court cases in the United States when photographs were first introduced, I find the first mention of it in a case decided in California in 1859, where the signature to a grant of land was disputed. What makes the case significant is that one Mr. Vance, a photographer, was interrogated and attached to his deposition photographs of original documents, of impressions of genuine seals, and of the signature on the disputed document. This is probably the first case on record in the United States where photographic documents were handed to the court. We can imagine the curiosity of the court when examining this novelty, as evidenced in the decision:
We have ourselves been able to compare these signatures by means of photographic copies and fully concur, from evidence oculis subjecta fidelibus, that the seal and the signatures of Pico [The governor of California who was alleged to have signed the grant. Author] are forgeries. Luco et al. V. United States, 23 Howard 515 (1859).
The same year, we find mention in other case of a witness named Albert S. Southworth, who testified as a questioned document expert and who declared that his occupation was photographing, in which he had been engaged since 1840. [Bacon v. Williams, 79 Mass. (13 Gray) 525 (1859).] He did not, however, present any photographic evidence.
Today, most questioned document experts do a lot of photographic work in the course of their examinations. It seems that in the early days of photography, the situation was reversed. In the previously mentioned case, we find reference to a photographer testifying in the case of a forged promissory note. In Marcy v. Bates, 82 Mass. (16 Gray) 161, 77 Am. Dec. 405 (1860), the court dealt with enlarged photographs of a repudiated signature and of admitted genuine signatures, introduced by a photographer who testified as to the results of his document examination. The court said, "Under proper precautions in relation to the preliminary proof as to the exactness and accuracy of the copies produced by the art of the photographer, we are unable to perceive any valid objection to the use of such prepared presentation. . . ."
The court was of the opinion that "a photographer, who is accustomed to examine handwriting in connection with his business, with a view to detect forgeries, is qualified to give an opinion as an expert, as to the genuineness of a disputed signature. [Marcy v. Barnes, supra.] The court did not find any objection to the fact that the witness' opinion was based in part on enlarged photographic copies of the signatures, which he had testified to be accurate copies, except as to size and color.
An important rule of law was here decided when the court decided that views of objects larger than natural size are admissible, when proved accurate and relevant. In discussing this facet of the cases, the court found, "It is not dissimilar to the examination with a magnifying glass. Proportions are so enlarged thereby to the vision so that faint lines and marks, which perhaps could not otherwise be clearly discerned and appreciated, are thus disclosed to observation."
Define a photographer
The daguerreotype process consisted originally of a mirror-polished silver plated copper sheet, treated with iodine fumes which converted its surface into a thin coating of silver iodide. After the plate had been exposed in a bulky camera, which necessarily required a very long exposure, the plate was developed with a vapor of metallic mercury, which forms an amalgam in proportion to the light and shades of the original subject. Washing in sodium thiosulphate removed the unaffected silver iodide, and a rinse in water completed the operation. The ambrotype process was also an early photographic process that had but a short life. It consisted of a glass negative which had a whitish deposit to represent the highlights that appeared positive when backed by black. The method died in the 1860's. The Alabama court, in Barnes v. Ingalls, 39 Ala. 193 (1863), undertook to define the daguerreotypist and "ambrotypist," whom it compared to a photographic painter in a ruling where it laid down that persons not expert could testify whether a photograph was a good likeness. In describing the functions, the court found:
The ambrotypist or daguerreotypist, whatever title he may give himself, is rather an artisan, than an artist. His labor is more manual than mental. He works more by rules, than under the inspiration of genius. The process by which he accomplishes his undertaking is mainly mechanical; and success in vocation demands, not creative power, but dexterity, contrivance, and the skillful application of fixed rules. He follows an art, but not one of the fine arts. . . .
It should be remembered that the dates given are those when a Supreme Court gave its ruling, but that the photographs were probably taken one to several years before that date.
In another case, around the same period, the defendant offered a photographic view of premises in controversy, without the testimony of the photographer who took it. It was excluded on objection of the plaintiff who pretended it exhibited only part of the premises. On appeal, the rejection was held to be no ground for exception. "It was not verified by the oath of the photographer," said the court, "and was only offered as a 'chalk representation' of the premises." [Hollenbeck v. Rowley, 90 Mass. (8 Allen) 473 (1864): held that the determination of the relevancy of a photograph is left to the sound discretion of the trial judge. His view of usually upheld by the appellate court.]
In New York, meanwhile, another action in tort saw a photograph admitted of a damaged cellar, the court stressing that "the photographic view of the cellar was an appropriate aid to the jury in applying the evidence. . . ." [Cozzens v. Higgins, 42 N.Y. (3 Keyes) 206, 1 Abb. Dec. 451, 33 How. Prac. 436 (1866).] No discussion was offered in this case, as in any of the previous ones, of the quality and value of photographs as a means for identification. But in 1871 we find a ruling where post mortem photographs were taken and introduced into evidence for identification purposes. The court admitted that the photographs were of poor quality and not in all respects the most perfect likeness that could be obtained. The material was accepted however as corroborating evidence, and exhibited to witnesses acquainted with the deceased, who were permitted to give their opinion as to the identity. [Ruloff v. The People, 45 N.Y. 213 (1871).]
Eyes of deceased a camera?
In his previously mentioned article, Mr. Tuttle referred to the theory that the retina of the eye of a deceased person retains with photographic faithfulness the impression of the object or person last seen by it. This generally discredited contention found its way in the court archives. I found the report of a suit brought in 1871 against an administrator of an estate, where photographic copies of documents were excluded from use as evidence. In the same vein as Mr. Tuttle's quoted note is part of the argument for the appellee, where the lawyer contended:
Every object seen with the natural eye is only seen because photographed on the retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. . . . Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877 of the Philadelphia Photographic Journal.) Take the case of a murder committed on the highway: on the eye of the victim is fixed the perfect likeness of a human face. . . . We submit that the eye of a dead man would furnish the best evidence that the accused was there when the deed was committed, for it would bear a fact, needing no effort of memory to preserve it. . . the handwriting of nature, preserved by nature's camera.
The court did not seem utterly impressed and ruled that photographic copies of instruments sued on can only be used as secondary evidence, "like letter-press copies," and added, "The truth is, there is no law allowing the use of photographic copies in a case like the one at bar." Eborn v. Zimpelman, 47 Texas 503, 26 A. Rep. 315 (1877).
Around the same time, photographs were introduced in an action for damages alleged to have accrued to a church from a change made by the City of Milwaukee in the grading of a street. The plaintiff showed a photograph of the premises taken in the presence of the city engineer. We can easily imagine the scene in old Milwaukee, all the people running out to watch the "artist" (as early photographers were known) setting up his equipment to take a picture of a street in the days when taking "snap" shots was still much of a carnival attraction. The city engineer verifying the whole works with an air of importance - although most probably totally ignorant of the procedure. Wasn't he to supervise the operation and report to the city council?
When the finished result was introduced in court, the photographer had done a fine job, for it was entered into the proceedings that, although defense counsel objected to the use of such evidence, he did not intend to impeach the general likeness and correctness of the photograph. As a result, it was not surprising that the court ruled the evidence admissible, declaring, "If the photograph was a perfect representation of the premise, why should it not be admitted in evidence to aid the jury. . .?" Church v. City of Milwaukee, 31 Wis. 512 (1872).
In another case, one year later, photographic evidence was rejected by the court in this opinion: "Photographs do not always produce exact fac-similes of the objects delineated, and however indebted we may be to that beautiful science for much that is useful as well as ornamental, it is at last a mimetic art, which furnishes only secondary impressions of the original, that vary according to the lights or shadows which prevail whilst being taken." Tome v. Parkersburg R.R. Co., 39 Md. 36, 17 Am. Rep. 540 (1873).
In 1875, in an action against a town to recover for injuries caused by a defect in a highway, which the town was bound to keep in repair, a photograph of the place was held admissible "if verified by proof that it is a true representation. . . ." Blair v. Inhabitants of Pelham, 118 Mass. 420 (1875). In this case, the defendant put in evidence a photograph of the place of the accident and testified that it was taken by him in December, 1874, that the position of his instrument, in taking it, was in the middle of the road, about one rod from where the face of the picture begins, and that he made the photograph as fairly as he could. In a somewhat similar action against a railway company on account of an injury caused by the destruction of a bridge (in Locke v. The S.C. & P.R.R. Co, 46 Iowa 109 [1877]), a photograph of the wreck, broken bridge and stream was held to be competent evidence.
Leading criminal case
The probably most widely quoted case in police photography was decided in 1874 and dealt with identification photographs in a murder case. William E. Udderzook was indicted for the murder of his brother-in-law, Winfield Scott Goss, and another man of unknown identity. Some time previous to February, 1872, Goss had obtained life insurance for a large amount in several life insurance companies, indicating his wife as the beneficiary. On Feb. 2, 1872, his picture frame shop was destroyed by fire and among the ruins were found the remains of a body, claimed to be Goss. Udderzook made the preliminary proof as to its identity, in order to obtain the insurance for the wife of Goss.
Later, the remains of another man's body was discovered in "Baer's Woods" and it was the contention of the Commonwealth that Goss had been murdered there and that the body in the shop was from another man. A photograph was introduced into the court proceedings and showed to several witnesses in an effort to identify Goss as a man living under another name. Udderzook was finally convicted and sentenced to be hanged. The Supreme Court of Pennsylvania, in ruling on the admissibility of the photograph, declared:
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 that 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 [sic] 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. . . .
It is evident that the competency of the evidence in such a case depends on the reliability of the photograph of 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 make 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 nearly a generation's experience. . . . 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 cognisance of it as a proper means of producing correct likeness. Udderzook v. Commonwealth, 76 Pa. 340 (1874).
An Alabama ruling in 1875 also dealt with photographs for identification purposes in a murder case. A murdered man's widow prior to, and at her husband's death, resided in Canada. She had never been to Alabama. Her murdered husband's sojourn there was but for a few months immediately preceding his death, if he was in fact the murdered man. The photograph she offered the police had been taken in Alabama and was sent to her by her husband, with the endorsement of his handwriting.
The court ruled, "A court cannot refuse to take judicial cognizance that photography is the art of producing fac-similes, or representations of objects by the action of light on a prepared surface. As such it had been long recognized, the mechanical and chemical process employed, and the scientific principles on which it is based, are so generally known, that it would be vain for a court to decline cognizance of it." Luke v. Calhoun County, 52 Ala. 115 (1875).
In another case for damages resulting of an action for assault and battery, at the instance of the defendant, the plaintiff's back and shoulders were exhibited to the jury. Against the objection of defendant, plaintiff then introduced a "ferrotype," showing the condition of his back three days after the battery. [A ferrotype was an early process of photography similar to the ambrotype process, from which it differs in that sheets of iron, japanned black or chocolate color, instead of glass, are used. It was also known as the "tintype." This method lingered on until the early days of the twentieth century. Author] The photographer testified that the ferrotype was a correct representation of the plaintiff's back at the time it was taken and the ferrotype was, therefore, held admissible. Redden v. Gates, 52 Iowa 210, 2 N.W. 1079 (1879).
From the late 1870's on, the cases become numerous. It then seemed well established that photographs should be accepted by the courts as evidence, under the proper safeguards of relevancy and accuracy.
In England, too, was the use of photography in the judicial process gaining a strong foothold. In 1874, Lord Coleridge, chief justice of the Court of Common Pleas of England, refused to hand out documents of the court which were needed in Bombay to have the handwriting on some of them identified. When asserting that the court could not let go of the documents, he added, "That difficulty might be gotten over by taking photographic copies, a thing by no means uncommon in the present day." Stephens, 8 Moak 482.
In the same vein, Judge Bradley decided that photographic copies of papers deposited in a public department could be read after "an authentication of their genuineness in the usual way, by proof of handwriting." Leather v. Salver Wrecking Co., 2 Wood 682 (1875).
Stereo photographs in court
Stereoscopic views seem to have been made very early in the history of photography. As far back as 1863, the famed American pioneer in the field, Oliver Wendell Holmes, developed a skeleton-type viewer for his "stereographs," which replaced the awkward box-type viewer. In spite of this early start, I found only two cases where "relief" pictures were offered as evidence.
In 1881 an Illinois court held that, when a town was sued for damages sustained on a defective highway, a stereoscopic view of the scene where plaintiff was injured when a horse pulling his sleigh became frightened and wan off the embankment, was properly admitted for inspection by the jury with the aid of a stereoscope. The court declared, ". . . that the process of taking stereoscopic views was the same as in photography." City of Rockford v. Russell, 9 Ill. App. 229 (1881). Also, in Iowa, a stereoscopic view of water damage to property after a flood was accepted to show the condition of the premises. German Theological School v. City of Dubuque, 64 Iowa 736 (1883).
More sophisticated photographic techniques admitted
In 1887 it was held that photomacrographs and photomicrographs would be admissible whenever it would be proper for the jury to examine the original subject with a magnifying glass or a microscope. Rowell v. Fuller's Estate, 59 Vt. 688, 10 Atl. 853 (1887). The famed Taylor Will Case in 1871 [10 Abb. Prac. N.S. 300 (N.Y. 1871)], and Tome v. Parkersburg R.R.Co., cited earlier, which came to other decisions, should not be considered authorities because they were decided before the art of photography was perfected to such an extent as to offer proper guarantees of accuracy.
As for the use of x-rays, the court accepted, in 1897, an x-ray showing the overlapping bones of one of the legs of plaintiff Bruce, broken by an injury for which a suit was brought, taken by a physician and surgeon familiar with fractures. The medical expert testified that he was familiar with the process of taking such photographs and that the x-ray in evidence accurately represented the condition of the leg. The acceptance of this x-ray was not deemed ground for reversal in Bruce v. Beall, 99 Tenn. 303 (1897).
A few years later, the court ruled that photographs taken by the aid of x-rays should be treated in the same fashion as the use of ordinary photographs in a trial for the better understanding by the jury of the evidence and the merits of the case. In Mauch v. City of Hartford, 112 Wis. 40, 87 N.W. 816 (1901), it was decided that "Every new discovery, when it shall have passed beyond the experimental stage, must necessarily be treated as a new aid in the administration of justice." And thus, photography was accepted by the courts in conjunction with another newly developed technique: the x-ray.
Conclusion
There seems to have been no objection, ever since 1880, to the admittance in evidence of photographs provided the accuracy and relevancy of them were duly established. The latter issues are, of course, still debated hotly in our courts today. However, they do not undermine the intrinsic value of photographs as evidential documents, but merely their relevance to issues under dispute, or their accuracy in reproduction.
It is therefore safe to rally to the court's decision in Franklin v. State, 69 Ga. 36, 47 Am. Rep. 748 (1882), where it was held that "we cannot perceive of a more impartial and truthful witness than the sun . . . ."
2004 Postscript . . .
All of the above was written long before computers and digital cameras. Today, any person with access to a home computer, a digitized photograph, and popular software such as PhotoShop or one of many other similar products, can freely alter, manipulate, rearrange, and distort any image. But that is perhaps for a later story.
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