Posted: 8 Oct 1998
Date Written: February 1998
This article examines the origins and consequences of the rise of photographic evidence in the American courtroom in the second half of the nineteenth century. In addition to providing a history of the use of photographic evidence, it provides a case study of the processes through which new technologies are brought into the courtroom, and shows both the power and the limits of analogic reasoning as a judicial strategy for coping with novel technological forms. The article details the competing cultural understandings of the photograph, showing how the photograph was viewed both as machine-made truth and as artistic representation. It also shows how the judicial doctrine developed to cope with photography could not entirely reign in alternative understandings of the meaning of mechanically-generated images.
Most nineteenth century judges responded to photography by declaring the new technology to be analogous to other forms of representation, such as diagrams, drawings and maps. Judges thus deemed photographs to be merely illustrative of testimony, rather than independent evidence. However, I argue that this analogy resulted in the reconceptualization and invigoration of an entire category of evidentiary representations, ushering in a 'culture of construction' in the courtroom, in which the use of visual evidence -- both mechanically made images and other kinds of visual depictions -- grew in both frequency and significance. In other words, by declaring photographs to be like diagrams, judges (inadvertently) brought into existence a new epistemological category: visual representations, not officially proof but nonetheless compelling. I argue that the creation of this category constitutes an origin story for 'demonstrative evidence,' and helps to explain why demonstrative evidence still hovers awkwardly on the boundary between illustration and proof.
Suggested Citation: Suggested Citation
Mnookin, Jennifer, The Image of Truth: Photographic Evidence and the Power of Analogy (February 1998). In the Yale Journal of Law & the Humanities, 1998.. Available at SSRN: https://ssrn.com/abstract=135311