Abstract
This article examines how radiological images became accepted by courts as visual evidence of death in the 20th century. Initially conceived as a speciality of photography, X-rays confounded courts, eliciting a range of judicial responses, from outright refusal to consider the images as any kind of evidence, to mocking them as cheap parlour tricks for an unwitting public, to recognising them as more reliable than the testimony of the expert witness. The article contends that courts moved towards recognising X-rays as proof of death only by both affirming forensic radiology's promise of ‘mechanical objectivity’ while acknowledging its reliance on the fallibility of ‘human subjectivity’. We suggest that this history has broader implications in socio-legal studies for comprehending how the invention of novel optical techniques continues to problematise legal epistemologies of death in the 21st century.
Introduction
Over the course of the 20th century shadow photography transformed visual evidence of death. The radiating light of X-rays exposed the inner densities of the corpse without opening it up, projecting shadows of organs, tissues, and bones onto photographic plates that were presented to courts as verification of mortality. Prior to the discovery of X-rays, legal proof of death was wholly dependent on the testimony of a forensic pathologist. This testimony was recounted before a judge after first opening the corpse, removing, weighing, and washing its organs, and seeing for oneself the dismal state of the dead body. Equipped with a scalpel, forceps, and other surgical devices and knowledge of the annals of forensic medicine, pathologists would testify before the law to the true cause of a death. However, radiology challenged the evidence of the expert witness by ‘mechanising’ the forensic gaze. This involved replacing the scalpel with an X-ray, supplementing testimony with a mechanical process, and equipping all judicial observers with skills for interpreting shadows as signs of corporeal trauma.
In this article, we examine how radiological images became accepted by courts as visual evidence of death in the 20th century. The legal status of shadow photography was furiously debated over the late 19th and early 20th centuries as judges, lawyers, doctors, and pathologists all questioned whether X-rays could depict a ‘truthful likeness’ of the dead body. Initially conceived as a speciality of photography, X-rays confounded courts, eliciting a range of judicial responses, from outright refusal to consider the images as any kind of evidence, to mocking them as cheap parlour tricks for an unwitting public, to recognising them as more reliable than the testimony of the expert witness. Even though X-rays eventually became admissible during trials in the 20th century, the question of whether they constituted ‘primary’ or ‘secondary’ evidence remained ambiguous until at least the 1920s. We argue that courts moved towards recognising X-rays as proof of death only by both affirming forensic radiology's promise of ‘mechanical objectivity’ while acknowledging its reliance on the fallibility of ‘human subjectivity’.
The article contends that the legal admissibility of X-rays was conditioned upon an understanding of how visual evidence of death is mediated through the intertwinement of objectivity and subjectivity. While it contributes to socio-legal scholarship on the history of medical testimony in the 19th and 20th centuries, it differs from previous writings by conceiving of this intertwinement as a relationality of technology, expertise, and observation. In other words, we argue that X-rays were only recognised by courts as legal proof of death because they theorised objectivity in connection with, rather than opposed to, subjectivity. Notwithstanding that the invention of photography in the 19th century raised similar concerns, what makes our study of the history of radiological images unique is that they sought to objectify one of our most unknowable experiences. We suggest that this history has broader implications in socio-legal studies for comprehending how the invention of novel optical techniques continues to problematise legal epistemologies of death. Considering the proliferation of medical imaging technologies in the late 20th and early 21st centuries, such as computed tomography, magnetic resonance imaging, and 3D photogrammetry, which are utilised in criminal and civil trials to find guilt and liability, it is important for socio-legal scholars to examine how courts rely on the promise of objectivity in constructing visual evidence of death.
The first section opens with debates in the 19th century about whether photography could constitute primary evidence or whether it could only be illustrative to aid or support the oral testimony of an expert. What was at stake here was whether photography could testify to an objective thing through its purported ‘truthfulness’ or whether it was inherently an ‘illusory’ human artform that fell short of the veracity of direct observation. The second section examines how X-rays disrupted the development of this jurisprudence by offering a new kind of imagery that could not be verified through the human eye. Radiological images revealed the interiority of the dead body from afar; however, the accuracy of shadow photographs could not be legitimated through direct observation. Debates in the late 19th and early 20th centuries revolved around whether X-ray images could be admitted as visual evidence of death and, if so, whether they could intrinsically represent morbid anatomy or corporeal trauma or whether they could only be accepted as demonstrative of the testimony of a medico-legal expert. We argue in the last section that with an in-depth understanding of forensic radiology, how it worked, what it revealed, and its promises of objectivity, courts ultimately came to recognise X-rays as a new kind of visual evidence of death. This is not to say that courts uniformly came to accept that X-rays could speak for themselves. Rather, radiological images ultimately became embraced by courts as legal proof of death, because they raised the possibility that judges could visualise the remnants of mortality with their own eyes.
The ‘Dumb Muteness’ of Forensic Photography
Prior to the 19th century, legal evidence primarily composed of objects, documents, and witnesses. When visual evidence entered the courtroom, it did so through legally sanctioned documents like maps and surveys in land disputes or drawings and diagrams in patent cases (Mnookin, 1998: 5). The invention of photography in the first half of the 19th century, and crucially, technological advances in printing that stabilised and preserved images on film by the turn of the 20th century, profoundly shaped law's relationship with visual evidence. Indeed, as Mnookin (1998: 5) shows, the judicial response to photography precipitated the common law doctrine of ‘demonstrative evidence’. ‘Ever alert and never involved’, Tal Golan notes, photography ‘seemed to deliver richer, better and truer evidence, often inaccessible by other means to human beings’ (2008: 78). What Golan describes as the ‘mechanical indifference’ of the camera was understood to capture the ‘truthfulness’ of the world, enabling reality to be fixed visually or, in other words, letting ‘nature speak for itself’ (Golan, 2008a: 78). Yet, at the same time, early genres of photography raised questions about the purported truthfulness of photographic representation.
Photography was pervasive throughout society for imaging ‘evidence’ of death by the late 19th century (Sontag, 2009). Post-mortem photography was often deployed to preserve images of the dead as if they were alive (Borgo et al., 2015). It was a widespread object of consumption in the Victorian era, which only dissipated in the wake of mass death that inundated much of the world in the 20th century. Depending on different aesthetic trends, post-mortem photographs presented subjects in various states of consciousness. Staging techniques – from scenery, to dress, to setting, to props, braces, and supports – as well as post-production techniques of colourisation were used to portray the dead as if they were slumbering or brooding. Spirit photography, on the other hand, which involved the manipulation of exposure, lighting, and printing, sought to trick the viewer into believing that they were looking at the image of a ghost. This was achieved through a range of photographic techniques, including the use of pre-printed glass plates that were not revealed to the consumer of the image. By the 1880s, with innovations in photographic printing that meant that photographs did not have to be printed immediately after exposure, post-mortem photography became more widely accessible to different segments of the population.
Oliver Wendell Holmes Sr, a physician, essayist and amateur photographer – who also invented a cheap and widely accessible stereoscope (a device used to view stereoscopic photography) – described photography in 1861 as capable of enlivening the dead. Over a century later, the literary theorist, Roland Barthes, would argue that photography ‘certifies, so to speak, that the corpse is alive, as corpse: it is the living image of a dead thing’ (2000: 78–79). Holmes (1861: 1) wrote in the Atlantic Monthly: It is hardly too much to say that those whom we love no longer leave us in dying as they did of old. They remain with us just as they appeared in life; they look down upon us from our walls; they lie upon our tables… Parents sometimes forget the faces of their own children in a separation of a year or two. But the unfading artificial retina which has looked upon them retains their impress, and a fresh sunbeam lays this on the living nerve as if it were radiated from the breathing shape.
Holmes understood the camera as possessing both biological and mechanical qualities in the way it ‘looked down upon’ its subject through a mechanism comparable to, but less fallible than a human eye. Through this ‘bio-mechanical gaze’, the camera engraved a memory of the deceased into the mind's eye (the ‘living nerve’) of the observer. The resultant image represented the deceased so accurately that it conjured recollections and visions of their life. Questions about the purported truthfulness of the camera due to its ‘mechanical objectivity’ or whether, in fact, it was inherently an illusory human art form reliant on quasi-biological processes and the conditions of nature initially confounded judicial observers. With these questions unresolved for much of the 19th century, jurists debated the nature of photographic representation in general, and whether forensic photographs in particular, could constitute ‘primary evidence’ of the true state of a corpse, or whether they were better deployed as an aid to or in support of the testimony of a medico-legal expert, who could testify to visualising the interiority of the dead body with their own eyes.
In the first half of the 19th century, when photographic techniques were still novel, it is perhaps no wonder that courts initially approached forensic photography with some scepticism. It was well understood in this context that images of a corpse could be manipulated through expertise and artifice to create the illusion that it was alive. Forensic photography was imagined in the debates that ensued as either a uniquely privileged form of legal evidence or, conversely, as dangerous trickery that could undermine and jeopardise the legal search for proof of death. The first view ‘marvelled at the unprecedented life-like fidelity of the photograph’ and likened it, Golan attests citing the jurist, Oliver Wendell Holmes Jr, who was the son of the abovementioned amateur photographer, to ‘a mirror with a memory’ (2008a: 78). Whilst the opposing view was concerned about the ‘inherent distortions’ involved in every step of the photographic process – from lighting to the angle used, to the technique deployed to develop the photograph – questions arose in law about whether photography could ever replace the testimony of a witness or whether, like maps, surveys, plans, and portraits, it could only become illustrative of legal facts. In the latter half of the 19th century, when photography became more commonplace in society, legal systems in Canada, England, and the United States of America began to formally grapple with these questions and, in turn, develop a jurisprudence of photographic evidence.
The view endorsing a truthfulness of forensic photography, and specifically, the way that it could leverage the conditions of nature to present proof of a wound, was first articulated in Franklin v State, which was heard before the Supreme Court of the State of Georgia in the United States in 1882. The case involved C H Franklin, who was indicted for slashing the throat of US marshal, Mit Bryant, on a sidewalk in the city of Macon in 1881. While the court found much corroborating evidence implicating Franklin in Bryant's death, the defendant appealed his conviction partly on the basis that the court erred in admitting a photograph as evidence of the cause of death. The trial judge reasoned that the character of the wound had to be certified, and given that Bryant was buried before the trial commenced, viewing a photograph of the corpse taken prior to its disposal, rather than relying on the conflicting testimony of witnesses, would be the most efficacious method for proving beyond reasonable doubt that the victim's throat had been slit. In relation to whether a photograph of a wound could be admitted as evidence, Chief Justice Jackson attested: [W]e cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seals the similitude of the wound on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show the truth, why should not this dumb witness show it? (Franklin v State, 69 Ga 36 (1882): 43)
The judge confirmed the photograph's ability, despite its ‘dumb’ muteness, that is, its inability to hear or speak itself, to emit signs of evidentiary value. ‘[I]t throws light on the issue’, Chief Justice Jackson noted, invoking the metaphor of transparency in the mechanical process of photography, but also in how law produces knowledge about the corpse by revealing visual evidence of death. Less than a decade later, some US courts would come to conceptualise the photograph more broadly as potentially more truthful than oral testimony itself. Mnookin (1998: 18) cites the 1889 case of Verran v Baird in which 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’. Despite the finesse of the lawyer's argument, Judge Holmes ultimately found the photograph in question in this case was an ‘incompetent’ witness (Verran v Baird, 150 Mass 141 (1889): 142).
Forensic photography was not universally accepted in the late 19th century as able to testify to the ‘similitude of the wound’ in itself. The alternative position held that a photograph could only constitute secondary, illustrative evidence that may assist the fact-finding endeavour but could not prove facts on its own. Proponents of this position argued that photographic images required the mediation of a witness or an expert who could testify in court to the truthfulness of what was depicted in the image. Often this meant photographers themselves were required to testify to their craft in court or through deposition. At other times, however, witnesses familiar with the object, scene, or person represented in the photograph were deemed sufficient interpretive intermediaries (Mnookin, 1998: 9). The fact that photographs could not speak for themselves allowed courts to unproblematically admit them as evidence in law (Golan, 2004: 186).
The 1881 New York appellate court judgment, Cowley v The People, set a precedent for how to understand and categorise photographic evidence. In this case, Cowley, the secretary of a benevolent institution providing care to children, was found to have wilfully caused and permitted the health of a child to be injured. Photographs of the child, first, in normal health and, second, in an emancipated state after being in the care of the benevolent institution were used as evidence to determine his neglect. The photographer who took the second images of the sick child testified to his work and several medical witnesses, including a physician, attested that the photographs depicted the child as he appeared at the hospital.
Acknowledging the need for expert interpretation of the images, Chief Justice Folger argued, [p]hotographic pictures do not differ in kind of proof from pictures of a painter. They are the product of natural law and a scientific process. It is true that in the hands of a bungler, who is not apt in the use of the process, the result may not be satisfactory. Somewhat depends for exact likeness upon the nice adjustment of machinery, upon atmospheric conditions, upon the position of the subject, the intensity of the light, the length of the sitting. It is the skill of the operator that takes care of these, as it is the skill of the artist that makes correct drawing of features and nice mingling of tints for the portrait. (Cowley v the People, 83 NY 464 (1881): 478)
In likening photographic images to painted portraits, the judge not only rendered photography akin to other forms of demonstrative evidence, such as the map or diagram, he also acknowledged that the photographer, like other artists and draughtsmen, was subject to human fallibility. In other words, he revealed the kind of skilful agency and technical expertise that was involved in creating and shaping photographic evidence. Chief Justice Folger explicitly discussed the ‘infirmity to which human testimony is lamentably liable’, acknowledging that ‘[t]he portrait and the photograph may err, and so may the witness’ (Cowley v the People, 83 NY 464 (1881): 478). Despite this, however, the court found that ‘when care is taken to first verify that the process by which the photograph was taken was conducted with skill and under favorable circumstances, and that the result has been a fair resemblance of the object, the picture produced may … be an aid to determination’ (Cowley v the People, 83 NY 464 (1881): 479).
The Cowley case reveals the paradoxical valorisation of photographic evidence in law in the late 19th century. On the one hand, photography could mechanically depict an ‘exact likeness’ of an object more realistically than a painting or drawing. ‘Rather than merely illustrating reality’, Greg Siegel writes, ‘it seemed to demonstrate it, substantiate it, prove it’ (2011: 95). Indeed, the qualitative differences between photography and earlier forms of visualisation, which were well known in courts by the late 19th century, sought to offer a radical new imagery of how nature, animals, or humans could be represented. This enabled judges and jurors alike to assess the accuracy of visual evidence of the world with their own eyes. However, on the other hand, because the mechanical process relied upon human artifice – the careful adjustment of cameras, staging, and light, as well as on the instructions given to, and the compliance of, the subject – which undermined notions that the camera could capture the likeness of nature without human intervention, photographic images could never constitute intrinsic evidence. They could only be illustrative of the testimony of a witness, whether that may be a photographer, bystander or expert witness. Cowley, Golan argues, ‘rejected the photograph's claim to superior mechanical objectivity and supported the view of the photograph as a human artifice’ (2008a: 79).
The history of the jurisprudence of photographic evidence reveals law's uncertainty about what it knows when it encounters a photograph. This is most prominent when considering how forensic photography became accepted by the late 19th century as demonstrative evidence of death causation. To find facts about how a person died, the judicial observer relied upon, prior to the intervention of photography, the oral or written testimony of a forensic pathologist to prove the presence of foreign objects, and the morphology of wounds or the exactitude of the dead body (Trabsky, 2019). With the development of this novel optical technique, the judicial observer became capable of visualising the interiority of the corpse with their own eyes. However, questions of whether the photograph possessed the capacity to testify before a court of law, that is, whether the image could speak for itself, remained ambiguous for much of the century. It was not until around the 1880s that courts unequivocally acknowledged the mediated nature of forensic photography, which can only produce evidence of the true state of a corpse through a mechanical instrument and contingent on human expertise. Law's knowledge of the forensic photograph as evidence of death thus became ‘tethered to a witness, a person whose testimony authenticates or narrates the image’ (Biber, 2018: 15).
The Uncertain Truth of ‘Shadow Photography’
Forensic photography challenged evidential rules for admitting images as proof of death in the 19th century. While photographs of a corpse were initially imagined as capable of testifying before a court of law, by the end of the century, photographic ‘images demanded a human being, a witness, a testimonial sponsor, to stand behind them, to verify them, or testify to their contents and meaning’ (Biber, 2018: 16). Without direct observation of what the camera mechanically imprinted on film, the photograph by itself, became in the eyes of the judicial observer irrelevant to court procedures for determining the cause of a death. Photography thus ushered into the common law the doctrine of ‘demonstrable evidence’. However, not too long afterwards, a new kind of optical technique proved that it was not always possible for a medico-legal expert, for example, to testify to a foreign object, traumatic wound, or fatal injury represented in a photograph. Forensic radiology unsettled the jurisprudence of photographic evidence by recording on film shadows of morbid anatomy and corporeal trauma. X-rays revealed the interiority of the dead body from afar, a chiaroscuro of bones, tissue, and organs, which could not be verified with one's own eyes.
In 1895 Wilhelm Conrad Röntgen discovered ‘a new kind of ray’ whilst experimenting with a cathode tube at his laboratory at the University of Würzburg. These rays, Röntgen found, could penetrate solid materials, and by projecting them onto a photographic plate, they could create ‘shadow pictures’ of an object (Brogdon and Lichtenstein, 2011: 9–10). Röntgen's findings were published in the Annals of the Würzburg Physical-Medicine Society only weeks later and it wasn’t long before news of the ‘X-ray’ made headlines in the popular press, first in Vienna and then in London and New York (Brogdon and Lichtenstein, 2011: 11). Although Röntgen clearly articulated the nature and quality of the strange rays in his scientific communications, his decision to define them with reference to the unknown, unquantified value of ‘x’, not only reflected the ambiguity that initially surrounded this new kind of ‘shadow photography’ within the scientific community, but also paralleled the concern that surrounded the X-ray and its unknown potential in the public sphere (Röntgen, 1896).
X-rays were framed in the popular press as inherently capable of imaging death itself. A cartoon published in the February 1896 edition of Life magazine, for example, depicted a scythe-wielding farmer and his ‘Roentgen’ shadow invoking a skeletal grim reaper (Mould, 1993: 9). Even Röntgen's wife described having a premonition of her death on inspection of one of the first X-ray images to depict the interiority of a human hand (Glasser, 1958: 39). Shadow photography, then, much like post-mortem photography that preceded it, emerged in the late 19th century as another optical technique for visually re-presenting death. The science was initially conceptualised as a new speciality of photography, since both were produced with the same materials and harnessed the same methods, and early on, many photographers were engaged in producing X-ray images in their photographic studios (Golan, 1998: 449). Yet, the hyper-localised representation of death in ‘shadowgraphs’ or ‘skiagraphs’, as they were once called, cannot be described as a ‘living image of a dead thing’ in the same way Barthes (2000: 78) conceptualised post-mortem photography. X-rays conjured death in novel, previously unimagined ways, by invoking in the living body a memento-mori of death's skeletal iconography.
Shadow photography also offered new visual evidence of death in the late 19th century. The radiating light of X-rays exposed the inner density of the corpse without opening it up, projecting shadows of organs, tissues, and bones onto photographic plates that could be presented to court as verification of corporeal trauma. Prior to the discovery of X-rays, legal proof of death was wholly dependent on the testimony of a forensic pathologist, and occasionally, in complex cases, accompanied by anatomical illustrations or forensic photography (Trabsky, 2019). This testimony was recounted after first opening the corpse, removing, weighing, and washing its organs, and seeing for oneself the dismal state of the dead body. Equipped with a scalpel, forceps, and other surgical devices and knowledge of the annals of forensic medicine, pathologists could testify before the law to the ‘true’ cause of a death. X-rays, on the other hand, promised to reveal the location of a foreign object, nature of a traumatic wound, or shadows of diseased organs without opening the corpse.
X-rays were first admitted as evidence in civil cases in Canada, England, and the United States of America in 1896. The American case of Smith v Grant involved a negligence action brought against an eminent Colorado surgeon who was being sued by a young law student for medical malpractice in the treatment of a fractured femur. Smith, who had been injured in a fall from a ladder, consulted the surgeon, W. W. Grant, who instead of immobilising the leg and recommending rest – the medically accepted treatment for a fracture – ‘advised exercises of various kinds as though treating a contusion’ (Withers, 1931: 99). The case was important because it denoted the first time a judge provided reasons for why X-rays could be admitted as proof of what lies hidden beneath the skin. 1 Prior to Judge Owen Le Fevre's decision to accept X-ray images as visual evidence, however, Smith's counsel spent significant time conveying the idea of radiology to the court through the use of a shadow box, which projected a shadow of an object onto a screen with the aid of a burning candle (Withers, 1931: 100). The counsel first showed the jury the shadow of a hand, which was compared with a radiograph of the same hand. This comparative process was repeated with other objects, including with a healthy femur bone until, finally, the X-ray plate depicting Smith's fractured left femur was tendered to the court. Smith's counsel argued that this radiograph ‘showed that the head of the bone was not in normal relation to the great trochanter and shaft’ and proposed that this ‘shadow picture’ or ‘roentgen picture [sic]’, as they described it, should be ‘submitted to the jury as evidence that there had been a fracture of the femur in the region of the great trochanter, which impaction of the fragments’ (Withers, 1931: 100).
The defence, on the other hand, invoked the ghostly outline of organs, tissue, and bone and the technical artifice of chiaroscuro, to suggest that X-rays reflected states and entities that could never be verified by the human eye. They even solicited the opinion of several judges throughout America who had refused to accept X-ray images as evidence because, they argued, ‘there is no proof that such a thing is possible. It is like offering the photograph of a ghost, where there is no proof that there is any such thing as a ghost’ (Withers, 1931: 99–100). In response to the defendant's objections, Judge Le Fevre declared [t]he defendant's counsel objected to the admission in evidence of exhibits, the same being photographs produced by means of the X-ray process, on the ground that, being photographs of an object unseen by the human eye, there is no evidence that the photograph accurately portrays and represents the object so photographed. … Modern science has made it possible to look beneath the tissues of the human body, and has aided surgery in telling of the hidden mysteries. We believe it to be our duty in this case to be the first, if you please to so consider it, in admitting in evidence a process known and acknowledged as a determinate science. (Withers, 1931: 101)
Debates about whether radiological images could be admitted as evidence persisted for at least the first two decades of the 20th century. Within robust discussions in the disciplines of law and medicine, lawyers and physicians argued whether radiographs could be considered intrinsically truthful, and thus constitute ‘primary’ evidence of corporeal trauma, or whether akin to photographs, they could only be admitted as ‘secondary’ evidence, illustrative of the oral or written testimony of a medico-legal expert. The former view was taken up by the physician, and early pioneer of forensic radiology, Mihran Krikor Kassabian (1901: 408), who wrote that X-rays could provide more accurate and conclusive evidence of the age of a deceased person, the texture of a fracture and the ‘character and extent of an injury’ than any testimony provided by a forensic pathologist. Whereas the alternative view was advocated by lawyers, such as R Harvey Reed (1898: 1013), who cautioned the admission of X-ray images, which he categorised as ‘nothing more than the photography of the shadow of an object and not even the photograph of the object itself’. Writing over 30 years later, the radiologist L H Garland (1938: 19) reiterated the notion that ‘[a]n X-ray is not a photograph at all; it is not even a picture; it is a shadowgraph … not a representation of what the eye actually sees’, and thus to be admitted as evidence of death causation, it must be interpreted by an expert skilled in the discipline of forensic radiology. In other words, ‘shadowgraphs’ only hold evidential value in law if they demonstrate the testimony of a medico-legal expert.
X-rays disrupted the development of the doctrine of demonstrable evidence in the late 19th century because they were qualitatively and functionally different from photographs. They were distinguished from models, maps, or diagrams, because they depicted a state of things that remained unobservable to the human eye. Not only did X-rays produce an entirely new imaginary of the corpse, and one that required technical skills to decipher shadows as signs of trauma, wounds, and injuries, but the veracity of its visual hermeneutics could not be verified in the same way that objects in photographs could be observed by a witness. Even if a forensic pathologist were to dissect the body to see if the shadows on a radiograph matched the colourful disposition of its interiority, both the post-mortem damage caused by the autopsy, and the decomposition process itself, would result in a dissimilitude between the image and their testimony. Hence, debates about the evidential value of shadow photography in the late nineteenth and early 20th century differed from earlier deliberations on the legal status of photographs.
This resulted, Daniel Goldberg (2011: 522) argues, in courts linking the authenticity of X-rays, and their admissibility, to ‘the reliability of the scientific process used to create them’. Radiographers were routinely called into court during this period to testify to how they produced the X-ray image that was being considered as evidence in a trial. Yet, judges and lawyers alike acknowledged the problem that such testimony could not provide a first-person account of whether the image depicted a ‘true state’ of the dead body, for example, considering the radiographer had not opened it up prior to taking the X-ray: [t]he photograph must be verified by someone who has knowledge of the object represented and can testify that the photograph represents his idea of the object … The use of pictures in evidence taken by the Roentgen rays involves slightly different principles, since the operator will usually not have perceived the object, with his ordinary organs of vision, and cannot testify that the picture corresponds to the results of his own observation. (City of Geneva v Burnett, 91 NW Rep 275 (1902) in Michigan Law Review, 1903: 329) [t]he process of X-ray photography is now as well established as a recognized method of securing a reliable representation of bones of the human body, although they are hidden from direct view by the surrounding flesh, and of metallic or other solid substances which may be embedded in the flesh, as was photography a means of securing a representation of things which might be directly observed by the unaided eye at the time when photography was first given judicial sanction as a means of disclosing facts of observation; and for that purpose X-ray photographs, or sciagraphs, or radiographs, as they are variously called, have been held admissible on the same basis as photographs. (1905b: 667)
Photography undoubtedly offered a reference point to help judges understand how radiographs could be admitted as visual evidence of death in the late 19th and 20th centuries. In 1896, Judge Le Fevre in Smith v Grant accepted X-ray images as proof of an injury, but only insofar as they could be seen as analogous to photographs, and thus demonstrative of the testimony of an expert. Likewise, in Chicago & J Electric R Co v Spence, 72 NE Rep 796 (1904), the court described the radiograph as a photograph, but also found that it can only be admitted if it is verified by an expert. The question though in both cases was who should be considered an expert for the purpose of verifying a radiograph. While generally anyone ‘who can testify that it represents his idea of the subject’ could be called upon as a witness, in the early 20th century courts preferred, and in fact encouraged, counsel to put on the stand the physician who took the radiograph (Michigan Law Review, 1905b: 409). The reason for this was unlike the photograph, direct observation of what was represented in the X-ray was not possible, and therefore, admissibility turned upon a factual question of whether the image was properly taken by an expert skilled in radiology, using an X-ray machine in ‘good working condition’, and with technical expertise in developing radiographs.
Judicial comparisons between photography and radiography simultaneously validated and undermined the latter's claim to objectivity. On the one hand, judges, lawyers, and physicians argued that through a mechanical process that was similar to photography, X-rays were more convincing in depicting the interiority of the dead body than any testimony provided by forensic pathologists. Conversely, others believed that X-rays were unreliable forms of evidence because unlike photography they represented nothing but the shadows of an object. The problem that plagued debates in the late nineteenth and early 20th century was that representations in X-ray images could not be verified by an expert witness and they were not even capable of producing an ‘exact likeness’ of the subject. While this section shows that the doctrine of demonstrative evidence was eventually expanded to include radiological images, we explain in the following section that questions relating to the admissibility of X-rays were only resolved by recognising in the relationality of technology, expertise, and observation of the intertwinement of objectivity and subjectivity. X-rays were recognised by courts as legal proof of death not only because they were produced through a scientific-mechanical process and conditioned upon the testimony of an expert trained in radiological vision, but also because they equipped the judicial observer with skills to see images of death for oneself.
The Radiological Vision of the Judicial Observer
Legal arguments in Chicago & J Electric R Co v Spence did not so much revolve around the problem of whether a shadow photograph could be admitted in court as visual evidence of corporeal trauma as it did on whether a jury could retire with the radiological image before offering its verdict. The defence argued that it was an error to allow the jury to carry the X-ray into the deliberation room, while the plaintiff contended that if the jury were to ‘read’ evidence, this included ‘to gather the meaning of by inspection; to learn by observation’ (Virginia Law Register, 1905a: 147). What was at stake in this case was whether the judge or the jury could draw their own impressions from inspecting or observing the X-ray, which is to say, whether they could ‘see the broken and overlapping bones with [their] own eyes’, as a witness in the 1897 case of Bruce v Beall explained, ‘exactly as if, stripped of the skin and tissues, they were uncovered to the sight’ (Withers, 1931: 102). The answer to these questions depended on how ‘radiological vision’ was constructed in legal epistemologies of death in the early 20th century.
The ocular relationship between revelation and obfuscation was inextricable from how judges, jurors, and lawyers viewed radiological images of death in the courtroom. This can be traced in how judicial observers grappled with admitting as visual evidence a chiaroscuro shadowgraph that claimed to reveal what the human eye could not see. Forensic radiology sought to reveal a ‘truthful likeness’ of the dead body unmediated by the hands of a pathologist. It was imagined that a judicial observer could ascertain the objective state of the corpse by reading meaning in a palimpsest of light and shadow. Yet in this movement towards revelation, objectivity was obfuscated by having to contend with a plurality of interpretations of the same image. Not only were judicial observers beholden to the testimony of the medico-legal expert, whether that was the physician who took the radiograph or the pathologist who opened the corpse posthumously, but they had to juxtapose that testimony with their own impressions of the image. José van Dijck (2005: 8) writes that the ideal of a ‘transparent body’, where objectivity can be gleaned by creating novel optical devices to peer inside the human, was undermined during the early days of X-rays by the fact that ‘every look into a human interior is also a transformation – ‘seeing is intervening’ – because it affects our conceptualization and representation of the body’. Undoubtedly, ‘X rays enable the viewer to see more’, van Dijck continues, but ‘[w]hat is real or true largely depends on the interpretation of the observer’ (2005: 98). While The Transparent Body does not extend its cultural analysis of how X-rays entered the courtroom in the 19th and 20th centuries, van Djick's remarks about the allure of technological advances in radiology remain apposite. Radiological vision promised the illusion of transparency for the judicial observer, while also raising the possibility that X-rays could never reveal an objective state of the dead body.
The illusive promises of X-ray images importantly emerged through the valorisation of mechanical reproduction in the 19th and 20th centuries (Daston and Galison, 2010). Forensic photography was eventually accepted as visual evidence of death because it was conceived of as a mechanical process for engraving the perspective of light onto photographic plates. Likewise, forensic radiology reproduced through mechanical instruments what was shrouded in darkness, and transformed the opacity of the corpse into a flimsy surface that could be seen by everyone. In revealing what the human eye could not see, the penetrating ‘mechanical gaze’ (van Djick, 2005: 15) of radiological vision subjected the corpse to a virtuous dissection from afar, and in doing so, the radiological image could become evidence in itself. It could purportedly speak for itself (res ipsa loquitur) in a similar way that photographs, in the words of Joel Snyder (2008: 219), ‘talk in court because they not only tell the truth but tell it better than eyewitnesses’. Radiological vision tantalised law, following the admission of photographic evidence in the late 19th century, with the possibility that a machine could one day render useless the compromised (and all too human) medico-legal expert.
The Transparent Body describes this shift from the subjective perception of the human expert to ‘mechanically induced representations of the body’ as intersubjective (van Djick, 2005: 98). The phenomenological concept was first articulated by Edmund Husserl in 1931 in Cartesian Meditations (1999), which describes how objectivity is constituted through the intertwinement between a subject and an object. Maurice Merleau-Ponty further developed this concept in 1945 in Phenomenology of Perception (2012) as the intertwining of ‘formal structure and subjective meaning’ (Jay, 1994: 302). Intersubjectivity denotes the seeing of an object together, or as Merleau-Ponty puts it, in ‘a zone of generalized existence’ where the world of things is inseparable from our ‘perspectives upon the world’ (2012: 427, 476). The problem for Merleau-Ponty was precisely how to theorise the limits of our unique situation in the world, and the existence of the generality of other beings and things. 2 While he described intersubjectivity as predominantly a sensory phenomenon of ‘a sympathetic entry into the subjectivity of others’ (Jay, 1994: 312), we emphasise in the use of this term a relationality between technology, expertise, and observation. In other words, intersubjectivity should not be reduced to merely an intertwinement between the visual, tactile, and emotional relations between perceiving subjects. Instead, it can be expanded to describe how subjectivity and objectivity form ‘a zone of generalized existence’ through the multiple relationalities of technology, expertise, and observation.
These relationalities are part of a broader history of medical testimony in the 19th and 20th centuries. While the specific constellations of technology, expertise, and observation remain underexplored in socio-legal studies, a number of scholars have emphasised how the objectivity of medical testimony emerged through affirmations and challenges to expertise (Golan, 1999, 2008b; Haskell, 1984; Jacob and Kirkland, 2020; Watson, 2019). Other scholars have examined how the verification of medical evidence has been conditioned by a teleological discourse of techno-solutionism (Dumit, 2004; Jasanoff, 1997). However, even in the writings most attuned to mortality, they seldom discuss the significance of visual evidence of death (Golan, 2004; Goodrich, 2023). Our analysis of the development of radiological vision in the 19th and 20th centuries differs from this literature by conceptualising the objectivity of medical testimony as both constituted by and challenged by a relationality of technological developments in mechanical reproduction, transformations in how experts testify to their knowledge before the law, and the intractable remnants of the subjectivity of the judicial observer.
Daston and Galison (2010: 17) describe scientific objectivity as ‘blind sight, seeing without inference, interpretation, or intelligence’. They write that ‘[t]o be objective is to aspire to knowledge that bears no trace of the knower – knowledge un-marked by prejudice or skill, fantasy or judgement, wishing or striving’ (Daston and Galison, 2010: 17). Daston and Galison coin the term ‘mechanical objectivity’ to describe image-based scientific representation, including scientific photographs for atlases and handbooks, in the 19th century. But this term is also apt for comprehending the construction of radiological vision in the 20th century, and in turn, how shadow photographs became capable of appearing in courts as visual evidence of death. Through an ‘automatic production of an image’ (Daston and Galison, 2010: 135), X-rays gave judicial observers the illusion of ‘blind sight’. Certainly, a radiographer had to position the body, they had to calibrate the machine and they had to develop the photographic plates into a film, but the automation of the machinic production enabled courts to visualise the interiority of the human body with their own eyes without the intervention of an intermediary. In other words, X-ray technology troubled a jurisprudence of demonstrative evidence, not to mention the normative expectations of bearing witness, because it was able to mechanically assemble imagery of what cannot be seen by the human eye, and present it as if it could provide an unadulterated perspective in law as to the true state of a dead body.
The problem though with the illusive promises of X-ray technology was that they were incomplete. To replace the fallible expert with an objective machine, however much the judicial observer wished to visualise ‘images uncontaminated by interpretation’, reintroduced the mark of a subjective ‘knower’ (Daston and Galison, 2010: 139). It was not though as if the machine replaced the perspective of the medico-legal expert le tout with the subjectivity of the judicial observer. X-ray images engendered their own hermeneutics with their own claims to knowledge-making, such that a palimpsest of shadows and lights could only be made sense of if someone trained in that hermeneutics compared them to other X-rays that yielded different interpretations ad infinitum. To this extent, the meaning of any given X-ray image before the law, and we would add, the possibilities of who could read and interpret these signs, and who could present them as evidence of death causation, were both circumscribed by the hermeneutics of radiological vision, and yet paradoxically, not limited by such claims to expertise. This perhaps explains why the question of whether jurors can lawfully retire with X-rays was pertinent in the case of Chicago & J Electric R Co v Spence. Indeed, as Golan notes, judges controversially ‘saved the last word for the jurors, who were allowed to take the X-rays plates into the jury room, examine them and interpret their meaning’ (2008a: 83). 3 The scientific – to reference Daston and Gallison – and legal objectivity of radiological images in the 20th century, and the truth that they engendered emerged through the mechanical reproductions of X-ray technology, legitimated by a medico-legal expert who was trained in the visual hermeneutics of radiological vision, and validated by the judicial observer who insisted that they too could visualise shadows as proof of death.
The relations between truth and illusion, sight and blindness, and objectivity and subjectivity, were part of, rather than separate from, a legal epistemology of death in the 20th century. We argue that the jurisprudence of radiological evidence was conditioned upon an understanding of how images of a human body are always mediated through a relationality between a mechanical process, claims to expertise, and visual observation. Courts eventually moved towards accepting X-ray images as true representations of the body in the first two decades of the 20th century by both affirming radiology's promise of ‘mechanical objectivity’ while acknowledging the inevitability of ‘human subjectivity’ in the act of bearing witness to death. Rather, like the photographs that preceded the invention of radiographs, X-rays were eventually embraced by courts because they raised the possibility that judges could visualise proof of death with their own eyes. We argue that with an in-depth understanding of X-ray technology, how it worked, what it revealed, and its promises of objectivity, courts came to accept X-rays as ‘secondary’ evidence of death causation that could only be understood through an expert trained in its visual hermeneutics, and a keen judicial eye equipped with the skills to see the signs of death for oneself.
Conclusion
Shadow photography was rapidly deployed soon after Röentgen's discovery of X-rays in 1895 to identify an unknown corpse, particularly where the remains were waterlogged, burnt, or decomposed. This was made possible by the development of the practice of forensic retrospectroscopy, where ante-mortem X-rays, records, and photographs were compared to post-mortem radiographs due to the unique characteristics of sinus and mastoid bones, dental history, and bone fractures and dislocations. In 1949, in the aftermath of the ‘Noronic’ ship fire in Canada, forensic pathologists spent around ten weeks identifying all 119 remains of the disaster by comparing ante-mortem and post-mortem radiographs of different parts of the body, including dental work, foreign objects, joint structures and the textures of bones. The chief forensic pathologist, A C Singleton concluded at the end of his intensive investigation that X-ray technology ‘warrants being considered as a definite and final means of proof of death and of identification of a body’ (1951: 384).
By the middle of the 20th century, X-rays were routine in forensic investigations, and when used prior to a post-mortem dissection, the technology could trace the trajectory of a bullet, highlight bleeding in respiratory or circulatory systems, and denote historical skeletal fracture (Graham, 1973; Scott, 1946). X-rays were not only useful for identifying human remains during a mass disaster but also for creating a permanent three-dimensional stereoscopic record of the quotidian human body. Radiological images became indispensable elements of a criminal investigation into a suspicious death such that they were imagined as potentially able to ‘obviate a good deal of conflicting opinions and discussion between prosecution and defence experts’ (Graham, 1973: 94). Likewise, the forensic radiologist or radiographer became essential by the late 20th century to the admissibility of radiological images in law, since they were trained in the science of producing and interpreting X-rays, and they possessed specialised knowledge to testify to the meaning of shadows as visual evidence of death.
The history of the legal admissibility of radiological images narrates a story about law's epistemology of death. The doctrine of demonstrative evidence, which was introduced in the common law in the late 19th century, to make sense of the capability of photographs to depict a ‘truthful likeness’ of a thing, paved the way for the eventual admissibility of X-rays. However, the latter challenged this jurisprudence of what law knows about death by creating an image of the interiority of the human body that could not be directly observed by a medico-legal expert. Judges, physicians and lawyers alike questioned how X-rays could demonstrate or illustrate the testimony of an eyewitness, if that witness had no ability to verify the accuracy of what was depicted in the image. Consequently, as Tal Golan (2004: 208) notes, [t]he basis on which machine-made images could now be admitted was not only the observing powers of the verifying witness, but also the mechanical reliability of the process that produced them. The essential relationship underlying the doctrine of illustrative evidence – the association between the visual evidence and the witness whose perceptions and knowledge it purported to represent – was severed.
This article contributes to socio-legal studies in three ways. First, it forms part of a broad literature on the history of medical testimony in the 19th and 20th centuries. However, it offers an important contribution to this field by focusing on images of death, and particularly presenting a framework for understanding how a medical technology changed the way legal institutions made sense of the dead body, how they accepted and challenged forensic testimony, and how they viewed the mechanisations of death causation. Second, the article contributes to the burgeoning field of ‘visual jurisprudence’ (Mulcahy, 2017; Sherwin, 2011) by showing how legal institutions privileged image-making and validated images as legal proof of death. We suggest that it is necessary to remember when analysing visual evidence of death in the courtroom how judicial observers often adjudicate legal issues and make findings on the basis of their own ocular relations with an image. Consequently, and lastly, this article has implications in socio-legal studies for comprehending how the invention of novel optical techniques will continue to problematise legal epistemologies of death. The late 20th and early 21st centuries have witnessed a proliferation of medical imaging technologies, which are routinely utilised inside as well as outside the courtroom to administer justice, apportion liability and make findings of guilt. And yet, the admissibility of novel images as proof of death, which is both challenged and transformed by these technologies, is seldom debated in socio-legal studies. It is hoped that by looking into the past we can develop new conceptual frameworks for examining how legal and non-legal institutions rely on the promise of ‘mechanical objectivity’ in not only constructing, but more importantly, relying on novel medical images as visual evidence of death.
The transformations in medical imaging technologies throughout the 20th and 21st centuries reflect upon how mediation shifts in the admissibility of visual evidence of death, and how this shift challenges the objectivity of the medico-legal expert and the subjectivity of the judicial observer. Our article has investigated the testimony that medical imaging offers by unpacking how legal forums understood the ‘truthfulness’ of radiological evidence and how it continues to grapple with the illusions and opacities of radiological vision. The history of radiological vision not only sheds light on how law grappled with a new optical device that disrupted orthodox evidential doctrines, but also with how technology that expands law's epistemology of death may be both embraced and questioned. However, it is important to emphasise that the technology is not questioned because the judicial observer is excluded from its hermeneutics, but rather due to each new imaging technology enabling the observer to visualise more with their own eyes.
Footnotes
Acknowledgements
We are grateful to Jacinthe Flore for commenting on an earlier draft of the article. We thank the anonymous reviewers for their insightful comments, which have strengthened our argument.
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Australian Research Council (grant number DECRA (DE220100064)).
