Photography as Legal Evidence.

Evidence and Facts.

Presenting evidence is the key factor in deciding the outcome of a court case. In a criminal matter the case at hand will be decided by proving facts ‘beyond reasonable doubt’, in a civil matter the result will be determined by demonstrating factual matters ‘on balance of probability’. Evidence and facts will sway a magistrate, judge or jury about the matter at hand, and photographic evidence is one of the most powerful ways to prove facts that we have today especially when it comes to accidents or injuries.

Brief History of Photography and the Law.

Photography, or ocular proof, is a relatively new form of evidence and has altered the way that testimony, in particular hearsay evidence is admitted in a legal proceeding.

The use of photography in law matters began in the November 1839 in France, where a man captured a photograph of his wife having an affair. He used the picture to win a divorce. The use of photographs spread quickly with a rogue’s gallery of convicted felons were archived in France.

Elsewhere photography made appearances in courtrooms worldwide, in the 1859 case of Luco v. United States, photographs of signatures were ruled admissible in court for the first time in the world to prove forgery of land claim documents.

By 1881 technology had progressed where photographs could be enlarged for more detail and in the case of Rockford v. Russel, enlarged photographs were first made admissible as evidence. By 1910 the first prosecutions for speeding were made with the assistance of photographic speed recorders in the case of Commonwealth v. Buxton. One year later photographs of fingerprints were ruled admissible as evidence for identification in People v. Jennings.

Photographic technology accelerated rapidly and by 1929 sound and motion recording of a confession was ruled admissible in Commonwealth v. Roller. Five years later ultra-violet photographs of a footprint were deemed to be admissible evidence in State v. Thorp. In 1943 colour photographs were first made allowable as evidence in Green v. City of Denver and Infra-red images were also used as evidence in Kauffman v. Mayberg.

By 1967 video tapes were widely accepted as evidence throughout the United States. Over the following years photographic proof was widely accepted as evidence, as long as the evidence presented followed the rules of relevance and authenticity.

Digital Revolution.

In 1990 the first digital camera was released and began a new wave of photography and by extension new laws that prescribed how digital images were to be used in legal proceedings.

In Australia hearsay evidence is routinely accepted when accompanied by photographic evidence. Photographic evidence is often used to corroborate a witness statement, or may be used as primary evidence where footage of a robbery was recorded by security cameras.

Australian States have uniform laws around the admissibility of evidence, and all follow the same basic rules of admission with any form of evidence as written in the [Commonwealth] Evidence Act (1995). One of the key definitions around the admissibility and weight of evidence is how documents, including digital photographs are treated in a court. A document can be loosely described as any record of information. The act describes a document as:

“Anything on which there is writing;

Anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them;

Anything from which sounds, images or writings can be reproduced with or without the aid of anything else;

A map, plan, drawing or photograph.” Evidence Act (1995)

Interestingly this also includes any metadata encoded within a document or photograph. Exif (Exchangeable image file format) metadata will record information such as when the picture was shot and any geo-location data pinpointing where the picture was taken. The use of this metadata as evidence is instrumental in catching criminals and in successfully prosecuting them.