In Crime's Archive

The Cultural Afterlife of Evidence

Katherine Biber

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317402671
• Edition: 1
• Topic: Art
• Subtopic: Art général

This book investigates what happens to criminal evidence after the conclusion of legal proceedings. During the criminal trial, evidentiary material is tightly regulated; it is formally regarded as part of the court record, and subject to the rules of evidence and criminal procedure. However, these rules and procedures cannot govern or control this material after proceedings have ended. In its 'afterlife', criminal evidence continues to proliferate in cultural contexts. It might be photographic or video evidence, private diaries and correspondence, weapons, physical objects or forensic data, and it arouses the interest of journalists, scholars, curators, writers or artists. Building on a growing cultural interest in criminal archival materials, this book shows how in its afterlife, criminal evidence gives rise to new uses and interpretations, new concepts and questions, many of which are creative and transformative of crime and evidence, and some of which are transgressive, dangerous or insensitive. It takes the judicial principle of open justice – the assumption that justice must be seen to be done – and investigates instances in which we might see too much, too little or from a distorted angle. It centres upon a series of case studies, including those of Lindy Chamberlain and, more recently, Oscar Pistorius, in which criminal evidence has re-appeared outside of the criminal process. Traversing museums, libraries, galleries and other repositories, and drawing on extensive interviews with cultural practitioners and legal professionals, this book probes the legal, ethical, affective and aesthetic implications of the cultural afterlife of evidence.

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1 The afterlife of police photographs

The Forensic Photography Archive is a collection of 130,000 negatives made by or for the New South Wales Police Force in Sydney, Australia, between 1910 and 1964. The photographs in the Archive are violent, humiliating, distinctive, disturbing, banal, beautiful, surprising and often inexplicable. Most of them are on fragile glass plates or flexible negatives. The Forensic Photography Archive (‘FPA’, or ‘the Archive’) is stored at Sydney’s Justice and Police Museum, in an old colonial courthouse beside the harbour quays. Its custodian is Sydney Living Museums (SLM), a state heritage agency that oversees a group of museums and historic houses in and around Sydney. This chapter seeks to understand what remains of these images in their afterlife, after the forensic processes have concluded. It examines the effects of using police photography in the cultural sphere, exposing the aesthetic and affective attributes of evidentiary photographs and the personal lives captured within them.

The Archive is thought to be more significant, intact and distinctive than the forensic photography collections held by the New York City Municipal Archives, the British National Archives and the Los Angeles Police Department, which, together with the Archives de la Préfecture de Police de Paris, are all heavily used and internationally celebrated collections (Lorenzini 2013; Sante 1992 and 2003; Bond 2009; Bratton, Ellroy and Wride 2004; Parry 2000). The Archive has been a source of inspiration for historians, novelists, fashion designers, playwrights and others, and this chapter investigates some of these uses. The photographs in the Archive include domestic interiors, suburban landscapes, strange portraits of 1920s criminals, close-ups of evidence and stolen goods, forced doorways and windows, images of fingerprints and forged signatures, blown safes, evidence of break-ins and escapes, corpses and skeletons, car accidents, industrial accidents, homicides, suicides and quite a few photographs that are just baffling or surreal, such as the photograph of the police detective wearing a show-girl’s skirt over his suit, or the image of an overturned empty baby carriage.

The contemporary narrative of the Archive begins with an extraordinary account of its survival against the odds. The Archive – before it was rescued by the Justice and Police Museum from a flooded warehouse in 1989 – had been moved from one premises to another, enduring vermin, mould, dust and the ravages of time. In 2006, Sydney Living Museums (then known as the Historic Houses Trust) formally acquired responsibility for managing and conserving the Archive. The photographic plates had become separated from the documents and files that once might have explained them, and these papers have since been lost or destroyed. A small portion of the images can today be understood because they were made as part of investigations that achieved notoriety, or at least media reportage, or were used in identifiable criminal or coronial proceedings from which records have survived. The majority, however, cannot be comprehended in any traditional sense, and resist the techniques of research and analysis in their ordinary meaning.

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Figure 1.1 NSW Police Forensic Photography Archive, Justice and Police Museum, Sydney Living Museums. Reproduced with permission.

Much of the Archive is a ‘closed’ collection. While its physical fragility poses access issues, this status relates to the sensitivities associated with its contents. Strictly speaking, the FPA is a state record and the NSW State Archive and Records agency has established directions for accessing state records. Public access to the collection is closed for a period of 70 years (counting from the date a record was created) for reasons of ‘sensitive personal information’ and ‘safety and security’ (State Archives and Records NSW n.d., Access Direction 1349). In disseminating information about the Archive and its contents, SLM has undertaken various endeavours, conservative and experimental, to test how the material might ‘live’ after its evidentiary uses have lapsed.

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All the images in the Archive began their lives during a police investigation. That is, all were made with an evidentiary purpose, to record and prove facts about crimes during the criminal investigation and trial. Many are, in this sense, evidence. Having said that, it is unlikely most of these images were actually used in criminal prosecutions. Changes in criminal procedure following advances in camera technologies ensured that photographers were sent to crime scenes to make images, and that people in police custody were photographed prior to their release. Nevertheless, the evidentiary uses of these photographs are difficult now to ascertain. They are, nevertheless, evidentiary images, and they dwell in the Archive in some kind of afterlife. This chapter investigates the nature and quality of that afterlife.

Law has sought to prove facts from photographs since the first photographs were taken.¹ By deploying these images in legal fact-finding processes, they become forensic photographs. Identity, recognition, act, omission, intention, corroboration, motive, credibility, tendency: each of these legal concepts – and others – might be proven with photographs. Law takes literally Susan Sontag’s epigram that ‘photographs furnish evidence’ (Sontag 1971, 5). Ignoring over a century of scholarship on photography, the law looks at photographs as if they were natural or neutral, as if there were nothing impeding law’s capacity to see what ‘is’ in a photograph.

In law’s taxonomy, there are three primary forms of evidence: real evidence, documents and witnesses. The photograph might be a document when tendered to prove a fact arising from its contents, or it might be real evidence when its own physicality is somehow in issue. And yet the history of photography’s jurisprudence also reveals that the photograph is always also tethered to a witness, a person whose testimony authenticates or narrates the image. While the law was swift to absorb photography into its fact-finding regime, the evidentiary form of the photograph has remained elusive and unstable.

Since the middle of the nineteenth century, photographs have been given evidentiary uses in policing and prosecution. Jennifer Mnookin’s legal history of photography identified the frequent use of photography in United States courts in the late nineteenth century. In 1889, a Massachusetts lawyer argued that ‘[t]he photograph is something more than a copy; it is a fac simile, and it is a perfect record of facts, not subject to prejudice, bias, or defective memory’ (Mnookin 1998, 18). But the early role of photographs in litigation was limited when ‘judges declared that this form of evidence could be used only for illustrative purposes, rather than as independent proof’ (Mnookin 1998, 13). This limitation was an early acknowledgement that the photograph could not speak for itself; it demanded that a witness testify to what the image purported to represent. From this constraint developed the common law doctrine that photographs are ‘demonstrable evidence’, as propounded by John Henry Wigmore in his enduring modern compendium of Anglo-American law of evidence, A Treatise on the System of Evidence in Trials at Common Law. Wigmore encouraged law’s embrace of new technologies for their capacity to give us new ways of discovering facts or resolving disputes. However, he also wrote of the ‘danger and fallacy’ that visual materials could be assumed to speak for themselves. They did not; images demanded a human being, a witness, a testimonial sponsor, to stand behind them, to verify them, or testify to their contents and meaning. An image untethered from a witness was, he said, ‘mere waste paper – a testimonial nonentity’ (Wigmore 1904, at §790, §793).

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In his Treatise, Wigmore created a compendium of ways in which photographs had been adduced into evidence before 1904, not all of which were criminal, and not all of which were admitted by the courts at the time. These included photographs of the corpse of a homicide victim, the scene of a railroad injury, a sidewalk, a highway, arson, flood, personal features (such as the wearing of whiskers), bastardy and the likeness of the alleged father, an alleged insane person, a lumber-pile, a pump, the plaintiff as injured and suffering, the position of the plaintiff when run over, injured limbs, flooded land and photographs of a plaintiff’s grandfather admitted on an issue of negro ancestry.

Wigmore noted that sometimes photographs would be insufficient, and sometimes they could misrepresent. Importantly, he recognised that sometimes photographs could be too much. That is, some images could be so powerful as to be dangerous. By this he meant that some representations could be ‘calculated unduly to excite sympathy for one party and unfair prejudice against another’ (Wigmore 1904, at §792; emphasis in original). In an evidentiary sense, this arises where the probative value of the image is exaggerated by an emotional, rather than a rational, response. This arises particularly where images depict gruesome, appalling or humiliating injuries to a victim, and the fact-finder’s sympathy prevents them from drawing a rational connection between these injuries and the alleged acts of the accused. That the images show the victim suffered dreadfully does not prove that the defendant caused the suffering. Nevertheless, the defendant is the only person whom the jury might hold responsible and so, where these images are adduced into evidence, their use might be unfairly prejudicial. Susan Bandes and others have noted that not all emotional responses to evidence are necessarily prejudicial – or not unfairly so – but that emotion always complicates our interaction with evidence (Bandes and Salerno 2014, 1005). The persuasive power of images is necessarily related to their emotional impact but this, too, is complicated (Bandes and Salerno 2014, 1007). Colour or black-and-white; silent or with sound; moving or still; real or simulated; live or mediated: there are no processes for sorting the relative probative and persuasive impacts of these different visual formats. There is an extensive jurisprudence of what makes an image ‘gruesome’, but there is no real way of knowing whether the gruesome image really is more probative than prejudicial, or whether it is possible – or even desirable – to distinguish its emotional from its evidentiary force. There is probably a visual spectrum that separates the ‘vivid’ from the ‘harmful’, but it is difficult to distinguish points along that spectrum, and always possible to find images that conflate or collapse it entirely.

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Figure 1.2 NSW Police Forensic Photography Archive, Justice and Police Museum, Sydney Living Museums. Reproduced with permission.

The entanglement of the evidentiary with the emotional probably explains the sensational break-out of forensic police photographs, cut loose from the archive and set free in the cultural sphere. That we can now buy coffee-table books of crime scenes and mug shots seems unremarkable, but we can also buy fridge magnets, clothing, tea towels, bottles of wine, skateboards and other consumer goods enhanced with forensic photographs.

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The first time the police photographs from the Forensic Photography Archive were publicly exhibited was in 1999 in Sydney, in the exhibition Crime Scene, curated by the media artists Ross Gibson and Kate Richards; this included around 100 photographs from the Archive. Gibson had been alerted to the existence of the photographs by the curator, Peter Emmett. He spent several months allowing the archive to ‘speak to him’, noting its ‘concussive stillness’ that was also ‘soulful and reverberant’, before approaching Richards to join a multi-disciplinary collaboration that would later be called Life After Wartime (Richards 2006, 447). Although Gibson and Richards began with the intention of finding out the ‘stories’ behind the photographs, and conducted interviews with retired detectives and police photographers to discover those stories, they gradually came to prefer thinking of the photographs as ‘open texts’, which would ‘prompt speculation’ and, later, the creation of fictional characters who would inhabit the imagined stories (Richards 2006, 452; Gibson 2008). They re-presented the FPA images in various formats, including an interactive database, with musical improvisation, as immersive cinematic environment or as algorithmic story-engine.

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The title Life After Wartime was prompted by Gibson and Richards’s gradual realisation that they were mostly drawn to photographs taken in the period 1945–60, albeit international and civil conflicts continued to rage during this period. Life After Wartime is marked by images of crimes that, for Gibson and Richards, seem to correspond to the changing world in which they occurred: drug use, autoeroticism, murder, sexual assault, car accidents, bestiality, suicide, train derailment and robbery. The project comprised, as well as the Crime Scene exhibition, an accompanying database containing images, research texts described as ‘prosaic and poetic’ (Richards 2006, 448), a soundscape, oral histories with detectives, and a portal to contemporary forensic websites. They made a CD-ROM, described as a ‘story engine’, in which the user, described as ‘the player’, could make choices that would navigate them through different pathways into which images and texts would flow. Commencing in 2002, a series of five live musical events were staged in which FPA images were shown during a performance by improvisational jazz trio The Necks, in what Richards described as a ‘synaesthetic relationship’ (Richards 2006, 455).

Richards and Gibson were interested in images that documented how crime scene investigators approached a crime scene, starting at the periphery and moving gradually to the centre, gathering physical evidence and making photographs as they went. Describing police photographers as ‘master semioticians’ (Richards 2006, 450), they noticed a technical style in which photographers minimised the appearance of shadows and expanded the depth of field, presumably to increase the amount of ‘information’ captured in a frame. While Richards noted that these techniques sometimes had the effect of producing images that were ‘theatrical’ and ‘cinematic’, ‘creating a speculative representation of their first intuitive response to the crime...

Table of contents

• Cover Page
• In Crime’s Archive: The Cultural Afterlife of Evidence
• Dedication
• Title
• Copright
• Dedication1
• Contents
• Acknowledgements
• Permissions
• Introduction: Afterlife, Evidence, Archive
• 1 The Afterlife of Police Photographs
• 2 The Nutshell Studies of Unexplained Death: Crime Scenes as Doll’s Houses
• 3 The Afterlife of Criminal Evidence in the News Media
• 4 The Oscar Pistorius Trial: An Afterlife in Real Time
• 5 The Museum: Curating Evidence
• 6 The Lindy Chamberlain Case: The Afterlife of a Miscarriage of Justice
• 7 International Crimes: The Afterlife of Evidence of Genocide, War Crimes and Crimes Against Humanity
• Conclusion: Destroying the Evidence
• Index