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Abstract

Maxims that urge the power of images are cultural commonplaces with which we are all too familiar: "a picture's worth a thousand words," "seeing is believing," and so forth. The photograph, in particular, has long been perceived to have a special power of persuasion, grounded both in the lifelike quality of its depictions and in its claim to mechanical objectivity. Seeing a photograph almost functions as a substitute for seeing the real thing. As Susan Sontag pointed out in her seminal musings on photography, "Photography furnishes evidence. Something we hear about, but doubt, seems proven when we're shown a photograph of it." Though Sontag meant "evidence" in the general sense of proof or knowledge, her claim holds equally true in the specifically legal context. Indeed, the use of photographs and other kinds of machine-produced visual images has become a routine evidentiary technique in the American courtroom. Visual evidence has played a central role in several of the highest-profile legal cases of the last few years-think, for example, of the infamous videotape of the Los Angeles police officers' beating of Rodney King, or of the damaging photographs admitted in the civil suit against O.J. Simpson showing him clad in Bruno Magli shoes. And it is by no means only in such sensational cases that photographs and other kinds of visual evidence are deployed; rather, they are a taken-for-granted form of proof in many civil and criminal cases.

Given the power of the photograph to provide strong representations-- vivid displays that seem almost to compel belief-its frequent and growing use as evidence may not seem at all surprising. The origins of this significant form of evidence, however, have received almost no scholarly attention. A smattering of recent articles and notes have examined the evidentiary dilemmas raised by the emergence of new forms of visual evidence, such as "day-in-the-life" films and computer simulations. A few other pieces have analyzed the various doctrinal foundations that underlie the photograph's admissibility. But despite more than 125 years of photography's sustained legal use, the history of photographic evidence remains almost entirely untold.

This Article takes a close look at the early use of photographic evidence in the American courtroom, providing a snapshot, if you will, of the legal use of photography in the second half of the nineteenth century. It reveals that photography was recognized, almost from the time of its invention, as a potentially powerful juridical tool - perhaps even a dangerously powerful tool. The meaning and epistemological status of the photograph were intensely contested, both inside and outside the courtroom. Furthermore, the history of the legal use of photography is intimately intertwined with the history of photographic technologies.

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