“The defendant stole my horse!”
“What evidence do you have?”
“Well, here is a picture of the very horse!”
We want to use pictures at trial. They can become marker buoys along the trial voyage, to be recalled in summation and available for the jurors to examine when they deliberate. But the pictures must be authenticated if they are to mean anything.
Dean Wigmore wrote:
We are to remember, then, that a document purporting to be a map, picture, or diagram, is, for evidential purposes simply nothing, except so far as it has a human being’s credit to support it. It is mere waste paper, testimonial nonentity. It speaks to us no more than a stick or a stone.
Wigmore, A Treatise on the System of Evidence § 790 (1904).
Justice Musmanno expressed a similar thought:
A photograph is merely pictorial testimony. While it is properly assumed that the lens of a camera will not lie, the reliability of the resulting product, insofar as evidence in a factual controversy is concerned, depends on many factors which have little to do with the fidelity of the mechanical process which transfers a physical object from tangible reality to an intangible image on paper.
Heimbach v. Peltz, 384 Pa. 308 (1956).
That’s right. A picture does not lie, but a person can. Or perhaps a person—for example, the lawyer who chooses which pictures to offer in evidence—can have a bias or point of view in selecting what to take a picture of and when or which picture to choose from an array that were taken. And, of course, in the digital age of photo-shopping, no photograph can be presumed innocent.
Dean Wigmore and Justice Musmanno were writing about admissibility, about “produc[ing] evidence sufficient to support a finding that the item is what the proponent claims it is.” As trial lawyers, we should have a working understanding that goes beyond getting our pictures in evidence. That is where writer Susan Sontag can help us.
Sontag wrote that the photograph “offers information, but information severed from all lived experience.”
She also wrote:
Through photographs, the world becomes a series of unrelated, freestanding particles, and history, past and present, a set of anecdotes and faits divers. The camera makes reality atomic, manageable, and opaque. It is a view of the world which denies interconnectedness, continuity, but which confers on each moment the character of a mystery.
Susan Sontag, On Photography 22–23 (1977).
* * *
If we want to put a photograph back into the context of experience, social experience, social memory, we have to respect the laws of memory. We have to situate the printed photograph so that it acquires something of the surprising conclusiveness of that which was and is.
John Berger, About Looking 65 (2011).
We who present the photograph have already—in our mind’s eye—put it in the context that we choose in order to understand its message for ourselves. The jurors at the moment of seeing the photograph have no such context. The task of “authenticating” the photograph has two parts: First, we respect the rule of evidence that demands a testifier to establish the threshold conditions of admissibility.
Our second task is to put the photograph back into the memory of the photographer or other witness to the depicted scene. Thus:
I went to the defendant’s house. He said he had not seen my horse. So that night I snuck out to his stables and took this picture of my horse, in one of the defendant’s stalls.
The picture does not “speak for itself.” We must call a witness to describe the scene, tell us about the camera and its setting. The witness must tell us what happened before and after the picture was taken, and help us see the photographer’s literal “point of view.”
Dean Wigmore told us only how to make the photograph admissible. Susan Sontag tells us how to make it memorable. She reminds us that the trial narrative is a story. It is a story built from impressions. It is a story built with the words of witnesses. And the witness’s words are a depiction of past and remembered consciousness. The picture brings together all the elements of trial discussed in the three earlier essays in this series.
Another lesson from the “horse story” is that pictures may sometimes be evocative, dramatic—and irrelevant. The picture can produce such a strong reaction that the viewer forgets the limits on its true meaning and worth. Therefore, our job in trial is not only to put the photographs in context but also to remind the jurors not to overvalue them. At some point, we may argue that particularly evocative photographs be excluded.
In my opening statement in United States v. Terry Nichols, I acknowledged that the Oklahoma City bombing had wrought death, injury, and destruction. And then I said:
But I want to warn you: The prosecutors may choose not to accept the reality that we accept. They may choose to put before you graphic, emotional, tragic evidence of the devastation on April 19. These events, I repeat, they’re not in dispute. We understand that there’s not a joy the world can give like that it takes away. The prosecutors may replay these terrible images over and over as if to say that somebody has to be punished for these things. That, of course, is not the question. The question for you at the end of the evidence will be who; and that is a question to be answered, we trust, in the light shed by the evidence and the law and not in flashes of anger.
A parting thought: If Dean Wigmore had ever met Susan Sontag, would they have understood one another’s point of view?