[Reader-list] Hearsay of the Sun

[Joy Chatterjee]

http://chnm.gmu.edu/aq/photos/index.htm

Hearsay of the Sun
Photography, Identity, and the Law of Evidence in Nineteenth-Century American
Courts

Thomas Thurston

Introduction

  This essay considers the legal reception of photography as a type of
evidence in the appellate cases, legal treatises, and legal journals of the
last half of the nineteenth century. Confronted less with a new form of
technology than with a new form of representation, one that challenged
received notions of original and hearsay evidence, photographers and the
Anglo-American legal press speculated as to the evidentiary rank of the new
photographic art during an era in which the nature of identity itself was
changing.

  Photography's initial reception underscored the contradiction between its
acceptance as testimonial aid- a reproduction of the real- and as commodity-
a production of the photographic artist. Its apparent reflective plagiarism
of nature especially recommended its use as evidence. However, as
photographic technology advanced and the recognition of the manipulation
involved in the production of the photographic work increased, skepticism as
to its evidentiary value grew stronger. The legal profession's increasing
reliance on expert testimony also tarnished the photograph's reputation for
incontrovertibility, for as its use became more common, photographic experts
began to face each other across the courtroom.

  In the racially polarized 1890s, the correlation between social identity and
physical appearance became problematic. The legal enforcement of socially
constructed identities could not depend on the veracity of mere appearance or
its photographic representation. And while the belief that interior truths
could be divined from external appearances was in dispute, newer photographic
applications were entering evidentiary jurisprudence. X-ray photographs,
artifacts representing that which could not be verified upon physical
examination, seemed to entirely divorce inner truths from external
characteristics, instead finding those truths hidden away by the body itself.

  The primary documents used in this hypertextual essay represent a relatively
contained selection of materials concerning the body of legal reasoning on
the subject of photography and evidence during the period under
consideration. Anglo American case law and the treatise tradition, with its
emphasis on precedent and commentary, is a literary form well suited for
hypertext.

  It is my hope that this hypertextual experiment may help to establish
standards in incorporating primary texts into critical essays, foster
collaboration among scholars from different disciplines, and perhaps lead to
the development of more ambitious legal-historical hypertexts.

Contents

The Law and Science of Evidence

  The Lineaments of Guilt

  The Signs of the Things Taken

Telling of the Hidden Mysteries

Sources

  Footnotes