A New Theoretical Framework regarding the Application and Reliability of Photographic Evidence
| Author | Glenn Porter |
| Published date | 01 January 2011 |
| Date | 01 January 2011 |
| DOI | http://doi.org/10.1350/ijep.2011.15.1.367 |
| Subject Matter | Article |
APPLICATION AND RELIABILITY OF PHOTOGRAPHIC EVIDENCE
A new theoretical
framework regarding
the application and
reliability of
photographic evidence
By Glenn Porter*
Senior Lecturer in Forensic Science, Head of Program for the
Bachelor of Science (Forensic Science), University of Western
Sydney
Abstract The application of photographic evidence within forensic science and the
judicial system has been in practice since the birth of photography itself. However,
with more than a century of application, the compelling nexus between
photography and physical evidence has no clear theoretical framework that
explains this pivotal relationship. From a pragmatic perspective, this article
proposes a new theoretical framework that focuses on the reliability of
photographic evidence as the central theme of the model. It provides a description
of physical evidence as various modes of inquiry and introduces the concept that
photographic evidence reliability should be considered based on the source of the
photographic material. The theoretical framework introduces taxonomical
descriptors of photographic evidence including: (1) analyse, (2) document, (3)
describe (visual narrative), and (4) witness forms of photographic modes of inquiry.
Visual culture intellectual John Berger1said: ‘At one level there are no photographs
which can be denied. All photographs have a status of fact. What has to be
examined is in what way photography can and cannot give meaning to facts.’ This
article will examine the critical concepts regarding how photographic evidence can
be considered as reliable when used as physical evidence.
Keywords Photographic evidence; Process; Theoretical framework; Forensic
doi:10.1350/ijep.2011.15.1.367
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2011) 15 E&P 26–61 26
1 J. Berger and J. Mohr, Another Way of Telling (Vintage International: New York, 1982) 100.
* Email: g.porter@uws.edu.au.
odern society has become obsessed with the application of images as
demonstrated by print and television media using images to report news
stories; communication technology such as mobile phones and
computers having inbuilt cameras; and security systems relying on CCTV. Popular
culture such as film, television and even music all utilise images as enter-
tainment; and images dominate the visual arts. Forensic investigation extensively
exploits photography when examining evidence.
The omnipresence of images within our society has affected the way we see events
and the world around us. A television news article without any images or footage
of the story does not have the same level of believability as one that does. A signif-
icant paradigm shift has also occurred in the way information or evidence is
presented to courts of law. Feigenson and Spiesel2argue that the law traditions
have relied on information or evidence in a textual form, consisting of written
statements and oral testimony. They suggest the application of pictures, rather
than exclusively using words, is having a profound affect on legal persuasion and
courts’ decision mechanisms. Feigenson and Spiesel suggest:
This is a major change in legal culture. Thinking with pictures—
looking at them, trying to interpret them, and using them to reach
decisions—is very different from thinking with words alone. Under-
standing them requires new skills.3
This response by the legal establishment is essentially a result of the increased
level of visual communication within the community, the extensive way forensic
science uses photography to record and examine evidence, the accessibility of
photography, and new digital imaging technology. The increase in visual evidence
from more traditional textual forms certainly raises challenging conceptual and
pragmatic issues. These issues are complex and multidisciplinary; however, at the
core is the question on what basis can photographic evidence be considered as
reliable or unreliable.
Photography has been wedded to forensic science since the 19th century and
especially in forensic disciplines such as crime scene investigation and physical
evidence examination. Developments in photographic technology have further
increased the range of sourced images forensic investigators are now required to
examine. New ranges of photographic evidence include: (1) images sourced from
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 27
APPLICATION AND RELIABILITY OF PHOTOGRAPHIC EVIDENCE
M
2 N. Feigenson and C. Spiesel, Law on Display: The Digital Transformation of Legal Persuasion and Judgement
(New York University Press: New York, 2009).
3 Ibid. at xi.
witnesses photographing a criminal event using portable digital cameras or
mobile phones; (2) CCTV4recordings; (3) images recovered from computer hard
drives;5and (4) images posted on social networking sites. The accessibility of
photography has certainly increased the visualisation of crime and/or evidence.
However, the technological developments have also increased the dangers
associated with inaccurate or unreliable photographic evidence.
To understand the complexity of photographic evidence reliability, a theoretical
framework needs to be established that will provide a basis to form reliability
norms and standards. A theoretical framework designed for photographic
evidence should consider elements contributing to forensic photography
practices, the source of the photographs, the investigational questions asked of
the visual material and its relationship to physical evidence methodology. Despite
the prominence of photographic evidence in previous and contemporary legal and
forensic landscapes, very little work has been developed to create a model that
articulates photographic evidence application and reliability.
The reliability of photographic evidence must also consider how the photographic
representation of people, items and places transitions into forensic evidence.
Different photographs will possess varying levels of subjectivity and objectivity.
How can this be assessed? In an early edition of Langford’s Basic Photography,
Langford6attempts to define a theoretical model that identifies the differences
between objective and subjective recording in contrasting photography domains
such as science and art, science and philosophy, or technology and art. In
particular, Langford developed a hierarchical model that lists a range of photog-
raphy applications he calls the ‘Spectrum of Applications’ and is scaled across a
range of photography activities defining photography as ‘predominantly objec-
tive’ or ‘predominantly subjective’. The concept of ‘objectivity’ and ‘subjectivity’
from photographs is highly relevant when examining the reliability of photo-
graphic evidence; however, Langford’s definitions are too broad for forensic
practice and are designed as a general description. Forensic photography practices
should embrace an objective model and it often does, especially during more
controlled forensic photography applications. However, forensic evidence derived
from photographs is not always sourced from carefully constructed photographs
using forensically based photography procedures. The reliability of photographic
evidence needs a model that focuses specifically on photographic evidence.
28 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
APPLICATION AND RELIABILITY OF PHOTOGRAPHIC EVIDENCE
4 Closed Circuit Television.
5 Especially in paedophilia and child pornography investigations.
6 M. Langford, Basic Photography, 4th edn (Focal Press: London, 1977).
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