The Lens and the Legal Practice
The Camera, the Court and the Reconstruction of Reality
by Sean Doran
Issue 23 Summer 2000
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Of the many enduring images the lens has captured in the last thirty years of Ireland's troubled history, one has remained fixed in the memory as a graphic representation of a cry for peace and sanity in the midst of conflict. The image is of Father Edward Daly, waving a white handkerchief, as he walked alongside men carrying one of the victims of the Bloody Sunday shootings to a place of shelter from gunfire on the streets of Derry on the 30th of January 1972. Now that Bloody Sunday is again the subject of official scrutiny - a tribunal of inquiry chaired by Lord Saville has begun the painstaking task of reinvestigating the events of that day - photographic images of the setting in which the deaths and injuries occurred have assumed a new ex post facto importance.
In the context of the inquiry, however, it is not only photographs depicting the dramatic intensity of the event itself that have been utilised in the process of seeking out the truth of what happened on that day. In addition to archive footage, modern photographic images of the scene at which the shootings occurred and artist panoramas have been used to 'reconstruct' the city for the contemporary observer. The modern street scenes are striking only in their banality. No trace here of that calamitous episode so deeply ingrained in the city's psyche; rather, these are more akin to discarded surplus from the dossier of an urban planner.
Juxtaposed with archive shots of the city, however, these images assume a new significance. They are images of a changed city, changed streets, with the predominance of the tower blocks of the past having ceded to the trim terrace of the present. At least architectural errors of the previous era stand corrected. The concept of the photograph as a snapshot of reality at one point in time must, of course, be treated with increased caution in the era of digital technology. Using advanced computer aided design, it has been possible to transpose the buildings of old upon the streets of the modern city to create a 'virtual reality walkthrough' of those streets as they stood in 1972.
In the course of the inquiry, therefore, the streets of the city can be revisited by witnesses through the medium of the computer screen, steps retraced with a click of the mouse. 'This computer model was constructed from ordinance survey data and a plethora of contemporary photographs', comments Jim Ware of Northern Ireland Centre for Learning Resources (NICLR), who were responsible for the design of the model. 'Artist panoramas were a feature added to the programme in order to produce something which approximated to a photo circa 1972 and are to be used in the knowledge that a degree of licence was implied.'
Talk of photographs being 'doctored' to assist in the presentation of evidence would in normal circumstances be anathema to the legal process; the deliberate distortion of reality does not sit easily with an objective search for truth. The use of the photographs in this way to recreate the physical location of the shootings, however, serves as a tool to facilitate the reconstruction of reality. The physical shape of the streets in 1972 is not at issue, rather what unfolded upon them. Nonetheless there is surely some irony in the employment of this technique in the present context: a case of the camera lying in order to get at the truth?
The Clerkenwell Explosion, 1867, attributed to Henry Hering
The nature of an inquiry is, of course, far removed from that of a trial in a court of law, not only in its procedures but in its guiding philosophy. In an inquiry, the members of the tribunal will play an active truth-seeking role: the aim of the inquiry is to seek out on its own initiative the truth of the matter that it is investigating. This is similar to the approach that continental jurisdictions have evolved through the centuries to the resolution of legal disputes. Anglo-American court procedures, on the other hand, are based on the theory of an adversarial contest between two competing parties - in the criminal context between the state and the individual accused - with the judge cast as a kind of neutral umpire who enforces the rules of the contest but does not engage actively in investigating the facts. In serious criminal cases, the decision on the facts is typically left to a jury of lay persons.
In the forensic environment, a photographic image may be adduced in evidence as proof of any facts that it portrays, provided of course that those facts are relevant to the matters in dispute at the trial. Photographs - like video recordings - are commonly referred to as 'real' evidence. They will only carry significant evidential weight if accompanied by oral testimony from a person who can vouch for their authenticity and explain the circumstances in which they were taken. The most frequently used type of photograph used in criminal proceedings would be the police 'scene of crime' picture. It is common also for photographic evidence to be adduced in conjunction with the evidence of an expert witness, most obviously an engineer. In the adversarial trial setting, of course, such material would be subject to testing through cross-examination by the other side, and the witness producing the photographic material may be called upon to defend its integrity.
More unusually, a photograph may be used as evidence to enable the identification of a person. One of the earliest reported English cases involving the use of photographic evidence was a bigamy case in 1864: a photograph of the first husband of the woman involved was admitted in evidence and a witness stated that he had seen the man in the photograph alive after the date of the marriage which was alleged to have been bigamous. In more recent times, the use of evidence of a photographic nature for identification purposes in court has led to some more problematic decisions. Courts have, for example, allowed 'photofit' pictures to be admitted in evidence against defendants by analogy with conventional photographic images. The problem here is that such pictures rely for their validity on the accounts of witnesses who assisted in their compilation - the construction of an image from purely human recollection with all its recognised fallibility is worlds apart from the mechanical product of the lens.
An even more contentious decision was reached in an English case last year in which a group of men wearing stocking masks were recorded on security video footage in the act of committing a robbery. Evidence was given at the jury trial by experts in facial mapping, who had analysed the masked images along with photographs of the defendant and concluded that key facial features and facial proportions (such as the distance between the eyes) corresponded between the two, thereby providing support for the view that the defendant was one of the robbers. The jury convicted, despite the absence of other evidence against the accused, and the conviction was upheld by the appeal court. This was a regrettable decision, in that no statistical evidence was presented to the court on the significance of the match between key facial features on the photograph and on the recording. How many other members of the population might the mapping technique have identified as a possible culprit?
Junction of Fahan Street West / Rossville Street, contemporary photo panorama
The use of facial mapping techniques in a contemporary setting is somewhat evocative of the 'anthropometric' system pioneered by Alphonse Bertillon in France in the late nineteenth century as a means of tracing and identifying repeat offenders. Bertillon's system involved recording a series of measurements of the criminal's body that he regarded as specific to each individual, set alongside two photographs - one from the front, the other a side profile - heralding the arrival of the 'mug shot' in the field of detection. The anthropometric system was ultimately abandoned, giving way to fingerprinting as the primary investigative technique.
Reliance upon photographs in investigations, however, endures to the present day and several distinct uses of photographic material may be identified in the context of case construction by the police. A few examples will suffice. First and most obviously, an investigation might uncover material of direct relevance to the proof of the case against the accused - the possession by the accused of pornographic material might, for example, provide direct evidence of the commission of a criminal offence. Secondly, the police might issue photographs of suspects to enlist the assistance of the public in their apprehension, additionally in some cases to alert the public to their potential dangerousness. Thirdly, there is the scene of crime photograph mentioned above. Interestingly, one of the earliest recorded set of photographs of this genre (although not taken by the police for evidential purposes but by a private photographer) arose from the Irish conflict, depicting the aftermath of an explosion at a prison in Clerkenwell in 1867, members of the Fenian movement having bombed a prison wall with a view to enabling their associates inside to escape.
The images are a fascinating testimony to the timelessness of destruction: the wood and brick rubble might easily at first glance be mistaken for a scene from the more recent past, only the costumes of the onlookers and the gas lamp in the background betraying its association with an earlier era.
Finally, the police may rely on photographs to assist in the process of identification by witnesses of the perpetrator of an offence. This is a simple concept on the face of it, but not without difficulty in practice. Statutory codes of practice state that a witness must not be shown photographs or photofit images if the identity of the suspect is known to the police and the suspect is available to stand on an identification parade. In a case where the use of photographs is permissible, the circumstances in which they are shown to a witness are subject to detailed regulation: for example, the witness should be shown no more than twelve photographs at one time and these should all be of a similar type; the witness should be told that the person he or she saw may or may not be among the batch; the witness must not be prompted or guided in any way and must be left to make a selection without assistance.
Junction of Fahan Street West / Rossville Street, computer panorama (1972)
If a witness makes an identification, then other witnesses should not be shown photographs; if doubt remains over the suspect's identity, then a parade should be arranged as soon as possible. When a case comes to trial, the use of the photograph as tool for establishing identity should not normally be revealed. The implication of the accused appearing in a police photograph is that he or she has a criminal record or is at least known to the police; defendants are entitled to protection from the revelation of such prejudicial material at trial.
To conclude this sketch of the difficulties that a meeting of the law and the camera can engender, it is worth reflecting that both the lens and the legal process are entrusted widely as a means of projecting an objective truth. The human input to both, however, is such as to render this pursuit an imperfect one. An American theorist once remarked that in reconstructing fact we do not have 'direct lines of communication with the Recording Angel.' The photographer too might identify with this pointed elegy to human limitation.