Images are a peculiar and difficult form of evidence.
2019
Last week a video appeared on my Facebook newsfeed; it showed a white woman racially abusing an Asian woman in New York (NowThis, 2018). That particular clip was filmed by a male bystander, also non-white, but in the background you can see many other people using their phones to capture the incident. This is not the only video of its kind and whilst searching for that clip a few days later, I came across similar videos recorded by the public. It is clear that in the absence of the police people rely on both still and moving images to represent a situation accurately so that it can be used as evidence in defence of victims against racial injustice and other crimes. Moving images, in particular, have long been mobilised in this way as they are understood to provide objective representations of the truth; as demanded by the legal and juridical systems. Furthermore technology has allowed mobile phones to offer instant access to cameras and sharing platforms, providing an immediacy that permits the jury, as well as other members of the public, to embody the eye-witness.
Yet, as images become evidence they are removed and reappropriated from their original contexts in order to be translated into specific cultural and legal rhetorics that limit their reading (Benjamin in Starrett, 2003: 398). An image’s status as evidence requires that the image be contained within a reductive dichotomy of ‘truth’ or ‘falsehood’, whilst such a high regard for the power of the image neglects the frame of reference prior to and post filming. The image alone is not enough, and a poststructural analysis of the use of images as evidence reveals the various cultural discourses that become imbued within an image as it enters the judicial institutions. Moreover, such an analysis also illustrates the socially constructed nature of vision, and how the jury’s perception of an image as evidence is moulded by their culturally contingent belief systems. Images, then, not only enter the judicial system, but a nexus of institutions, beliefs and practices disseminated through multiple visual sources that shape ways of seeing evidence (Biber, 2007).
Videos of racism are contentious within the United States (US), and many of those I found were situations presenting the police perpetuating racism towards the public. In fact, following the video mentioned above, the man filming released another clip in which he claims: “The whole train had to get out with me just to make sure that when the cops arrived, a situation like [Jemel Roberson’s] in Chicago wouldn't happen to me … and I wouldn't get shot when they arrived and saw a large black guy holding a blonde lady …” (NowThis, 2018). It was 1991 when the video of Rodney King, an African-American, being beaten by LA police officers failed, at first, to work as evidence against the police and in favour of King. This footage was the first of many, however, and since we have witnessed the deaths of Eric Garner, Walter Scott, Freddie Gray, Stephon Clark, Michael Brown, and Philando Castile, to name just a few for which the image has shown their deaths at the hands of the police in believably racist incidents. Uncovering the uneasy relationship between race and crime, and the role of the image in maintaining their proximity allows an understanding for why the public are losing faith in both the image and the legal system. This essay will explore how theories of representation can clarify the contentious use of evidence in cases of police brutality towards people of colour (PoC) in the US. A nuanced understanding of post-structuralism, however, can also reveal how social media, cinema and other visual practices have become alternative routes of resistance that mobilise the image as evidence in seeking justice outside of institutional contexts.
Since the Enlightenment, the Western world has been saturated by an ocularcentric approach to knowledge production. This rationale granted a privileged epistemological status to observation, and thus the image, within a positivist rhetoric that underpinned the empirical, objective and rational endeavour of science, but also anthropology which asserted truth claims determined by cross-cultural surface differences of skin colour, body shape, dress, and behaviour, for example (Latour in Edwards, 2014; Slater, 1995). The camera was considered a realist tool due to its mechanical, detached and accurate representation of the world. Images, through their resemblance, were understood as icons of what they represented, but additionally, as a result of their inherent contingency on the physicality they represented, images are indexical (Pinney, 1990). Barthes most famously referred to the image’s ontology as “never metaphoric”, asserting that this was the very essence (‘noeme’) of the photograph and accorded it an “evidential force” over painting, drawing, or even text that “by the sudden action of a single word, can shift a sentence from description to reflection” (Barthes, 1981: 28, 76, 78 & 87).
Objectivity is primarily what has entitled the image to an authoritative status as evidence in the courtroom. However, there are other characteristics that are favoured in regard to legitimacy; notably that the image be equivalent to a “brute photograph (frontal and clear)” and without distortion or interference that could jeopardise its neutrality (ibid.: 158). In the case of moving images or film footage, the image is considered according to further institutionalised criteria that determine whether it has probative value; that is the ability to wholly prove something as true or false. In the US, further distinctions concerning the ‘evidential force’ examine who took it, as forensic and police photographers are considered experts in understanding and capturing the event in a neutral manner, in contrast to the public who are assumed to carry prejudice (Stubblefield, 2009; Mezey, 2013). These concerns focus on replication and authentication rather than representation, and are assumed to be the most truthful account of the image (Barthes, 1981: 85). Providing a perfect transparency to the judge and jury allows them to become first-hand witnesses. Moreover, Western ocularcentrism means that eye-witnessing is considered more legitimate than spoken word, and images are frequently used to clarify conflicting testimonies (ibid.; Berger, 2008).
Yet the fact that the image’s status as evidence needs to be negotiated, legitimised, interpreted and confirmed according to criteria assumes that the image, in itself, does not communicate a truth effectively (Tagg, 1993). Furthermore, that the image enters into an institution and into a particular case in order to become meaningful suggests that its authority is contextual rather than universal. The image, as a methodological tool, can not be considered theoretically neutral as it’s ‘evidential force’ is always dependent on the aims of either the prosecutor or defendant (Banks and Morphy, 1999). Although this paradox unsettles the image’s objectivity, Barthes (1981) maintained that there was a distinction between the denotative and the connotative elements of a ‘photographic message’. The denotative refers to the literal, objective presence of what is depicted, whilst the connotative element of the image determines its relevance to the court case (ibid.). The connotative element is the product of discursive conditioning, and relies not on an ontological or existential fact, but rather a social and semiotic process.
Tagg (1993) argued that the connotative completely undermined the image’s neutrality, as it was always bound to political ideologies, motivations and hierarchies: “every photograph is the result of specific and, in every sense, significant distortions … The indexical nature of the photograph … is therefore highly complex, irreversible, and can guarantee nothing at the level of meaning” (ibid.: 3). Through a genealogical analysis of photography, Tagg uncovered specific instances in which the image was empowered as evidence in conjunction to specific projects of governance that required methods of observation and record keeping for structuring and disciplining society. For example, he reveals how the birth of photography coincided with the introduction of the police in the United Kingdom, and that the two have been inseparable ever since. Visual technology facilitated criminal identification systems, beginning with the Bertillon system, which classified criminality according to observable, taxonomic categorisation of physical attributes (ibid.; Sekula, 1986).
The creation of a new knowledge of criminality facilitated the objectification of people under a politically motivated ideology fundamentally backed by anthropological and scientific rationale. Even science, however, cannot be regarded as objective, but instead constitutes part of a regime of truth that encompasses a matrix of institutions in order to reinforce the discursive power. The image’s role, therefore, comes not from the “power of the camera” as a mechanical tool, but rather “the power of the apparatuses of the local state which deploy it and guarantee the authority of the images it constructs to stand as evidence or register as truth.” (Tagg, 1993: 64). Sekula (1986) illustrates how modernist dichotic hierarchies were reified through society in the mid nineteenth-century, whereby photography became a tool for the bourgeoisie seeking to subjugate lower classes through criminality and access to image production. Tagg reiterated this, revealing that even when technological developments allowed photography to become widely available, access only furthered discourses of governance through self-surveillance, whilst the reverence of technical knowledge in the hands of those in power meant that popular photography “operated within a technically constrained field of signifying possibilities” (ibid.: 17-18). These historical processes naturalised the regime of truth in which the image exists as evidence, such that “the image had to be said to speak for itself, though only qualified experts could read its lips” (Tagg, 1992: 129).
Images are not simply representations, but encompass material practices of governance that require them to perform ideology (Edwards, 2014). In the US, institutional ideology is bound to hierarchical discourses that rely on racial discrimination. This is the result of a historical process that can be traced back to the constitution of slavery into law, wherein white Americans were situated as superior to all other races. Distinctions in race were backed by Enlightenment rationale, scientific observation and colonial anthropology that provided visual evidence for biological, intellectual and cultural inferiority (Edwards, 2011: 2014; Smiley and Fakulne, 2016). Even following the abolition of institutionalised slavery and the Post-Civil war era in the late nineteenth and early twentieth century, Jim Crow Laws and embodied understandings of the Self and Other regarding racial differences remained entrenched in cultural practices, provoking racial prejudice and segregation (ibid.). Even after the Civil Rights Movement, ‘black criminality’ was institutionally reinforced through the War on Drugs in the late twentieth century, wherein campaigns that mirrored images from the Bertillon System depicted an apprehended African-American prisoner, whose face became synonymous with crime (ibid.).
Although institutionalised racism has been denounced in the US, there has been little formal challenge to ideological perceptions of racial differences that saturate visual media regimes outside of legal institutions. Kulaszewicz (2015) claims that, in part due to historical racial segregation in the US, white Americans come to know African Americans through the media, but that these representations are distanced, monolithic and ideologically inundated, and thus create and sustain perceptions of superiority and inferiority. Benjamin (in Rony, 1996: 9-10) theorised the appeal of images as the result of the public’s “desire ... to bring things 'closer' spatially and humanly”, as exemplified by the fetishisation of African Americans in popular culture (ibid.). Rony traces Tagg’s genealogy through cinema, recounting Regnault chromatographie of Western African performers as the birth of the scientific film. The construction of the Primitive Savage was reflected in popular films like Tarzan of the Apes (1918), which acted as propaganda for legitimising colonisation (ibid.). Similarly, Smiley and Fakulne (2016) examine how during slavery “images of buffoonery, blissful ignorance, and juvenile angst were seen as the primary traits of enslaved Blacks”, illustrated through the use of Blackface for comedic value in images. They go on to show how the admittance of rights to African Americans threatened white power, causing representations to shift in order to regulate and control people (Tagg, 1993; Minh-Ha, 1990). African Americans came to be portrayed as monstrous, reinforcing fear and segregation. Birth of a Nation (1915) clearly depicts African American men trying to attack white women alongside narratives of the Ku Klux Klan as noble saviours of the nation, reinforcing dichotomies between white/black that slotted into notions of good/bad (Rony, 1996). Although fictional, these films established and disseminated a stereotypical iconography.
More recently Smiley and Fakulne (2016) uncover an image from Vogue magazine in 2008, wherein African-American LeBron James is holding a white American model in a pose that recreates a World War I poster of a gorilla holding a white woman with the caption “Destroy this Mad Brute” (Shea in ibid.), reinstating stereotypical imagery of PoC as threatening, monstrous criminals. Smiley and Fakulne (ibid.) also recount how, in 2015, President Obama referred to a group of African-American citizens from Baltimore as “criminals and thugs” following riots that erupted after the death of Freddie Gray in police custody. They reveal how Obama’s use of the term permitted its use all over media networks, whilst a Baltimore councilman rejected the term on behalf of its expropriation, for it is in “some ways explicitly and other ways implicitly used as a substitute for personally mediated racism, specifically the term ‘n***er’”. Following incidents of police brutality, the media focuses explicitly on the criminality of the victims in order to legitimise their deaths. For example, the media reported that Gray lived in a crime-heavy neighbourhood, and that he had a history of drug possession, assault and destruction of property (ibid.). Similarly, when Michael Brown was fatally shot by a white officer, Wilson, after Brown was suspected to be involved in a store robbery in 2014, media sources emphasised his irrelevant drug and alcohol use (ibid.).
When the media shows images of PoC they are consciously and unconsciously associated with criminality due to historical conditioning in the American public’s scopic regime. Poole (2005: 162) refers to this as a “racial common sense”, for it involves the embodiment and normalisation of stereotypical perceptions that are reappropriated from their original contexts and enacted in everyday life. Lippman (in Yanay, 2008: 138) defines stereotypes by their visual potency, and their ability to “flood fresh visions with older images, and project into the world what has been resurrected in memory”. This may explain why, earlier this month in the US, an African-American woman and her daughter were falsely accused of shoplifting, or why a white student reported an African-American Yale student sleeping in a university dormitory, or additionally why the police were called by a white employee to arrest two African-American men for merely sitting in a Starbucks, to provide just a few examples of stereotypical perceptions projected onto the Other. This racialized gaze does not exclude police officers, who have unreasonably used deadly force on African-American suspects. For example, in March 2018 in California, police officers fatally shot Stephon Clark for holding what was assumed to be a gun, but turned out to be a mobile phone. According to a study on Mapping Police Violence (2018), in 2014, less than 1 in 3 PoC killed by the police in the US were related to a violent crime or armed.
The tension between looking and seeing is what further complicates the use of the image as evidence. When a jury is asked to look at an image, they do not receive a pure transmittance of an objective event; they recognise what Barthes refers to as the ‘studium’, that is the cultural assumptions that ‘reconcile’ the image with society (1981: 27-28). The image is understood within a visual regime that includes negative stereotypes seen from cinema and other media. The iconicity of the image is, therefore, purely symbolic, and the jury accepts what the image represents if it coincides with their preconceived perception of what is depicted (Minh-Ha, 1990). There is no such thing as an ‘innocent eye’ (Yanay, 2008), and images that are used in cases against PoC offer visual affirmation of ideologies that conflate blackness with criminality (Sontag, 1971; Biber, 2007). Biber (ibid.) explains how, in Australia, the court is cautioned of the dangers of cross-racial identifications following the case of Mundarra Smith, an Aborigine boy charged with robbing a bank on the basis of the jury’s recognition of stereotypical physical characteristics. Moreover, this Othering process relies on a preconceived notion of the Self. Butler (2004: 145) claimed that images “give us the idea of the human with whom we are to identify, for instance the patriotic hero who expands our own ego boundary ecstatically into that of the nation”. Although the Civil Rights Act forbids racially discriminatory jury selection, peremptory challenge allows attorneys to dismiss jurors they believe carry bias towards the case. However, it is exploited in the formation of a racially unrepresentative jury that will adhere to their propositions. The grand jury failed to convict Wilson in defence of Brown case, and it is assumed that this was because the jury consisted of nine white and three African-American jurors (Colon, 2016). In 2015, however, when Freddie Gray was fatally injured in police custody having been arrested for carrying a knife, the 12 member jury included 8 PoC and 4 white people, and was successful in charging an officer with manslaughter.
It is rare that police in the US are held accountable to the injustices against PoC; in 2015, 99 percent of cases of police violence did not result in officers being convicted, whilst in 2017, officers were charged in only 13 of 1147 cases (Mapping Police Violence, 2018). The Rodney King case of 1991 provides the most acute illustration of the way in which ideologies of race intersect the image. The incident in which King, an African-American taxi driver was beaten by Los Angeles Police Department (LAPD) officers, was recorded by a member of the public, George Holliday. The video was assumed by King and the prosecutors to undeniably depict excessive force and racially motivated brutality on behalf of the officers, and yet it failed to prompt any charges and the officers were acquitted. Upon entering the court as evidence the footage entered into the legal discursive regime. Notably, the application of scientific rationale prioritise the objective over the subjective, or reason over emotion, and extracted the objects of knowledge from the emotional appeal of the footage, allowing the defendants to position the prosecution’s case as irrational, and thus inferior (Tagg, 1993). King’s objectification within this discourse stripped him of any authority regarding embodied knowledge, including his verbal statement, which was seen as biased, and thus inferior, in comparison to the image’s objectivity (Guerin and Hallas, 2007).
King’s body became a “passive but pathetic object[s] capable only of offering [itself up to a] gaze” (Tagg, 1993: 12), and although the video depicted him defensively crouched as he was beaten, his movements were directed through a “racial schematization of the visible field” (Butler, 1993: 16), saturated with symbolic meaning reflecting criminality and embodied difference. Each movement by King was interpreted as threatening in order to justify the use of force by the officers. Similarly, in 2014 mobile phone footage of Eric Garner being restrained by officers with an excess of force, which subsequently caused his death, failed to indict the officer responsible as the defendants focused on Garner’s physicality, claiming that he was ‘350-pounds’ and in bad health (Smiley and Fakunle, 2016). During Brown’s case, too, CCTV footage was only used to comment on his threatening size, alongside Wilson’s claim that “ … I felt like a five-year-old holding onto Hulk Hogan … he looked up at me and had the most intense aggressive face” (in ibid.); yet Wilson and Brown were of similar size. Butler (1993: 19), in reference to King, concluded that “the physical danger in which King is recorded is transferred to [the jury]; they identify with that vulnerability of whiteness, thus reconfiguring him as a threat”. The perception of reasonable force is backed by US laws that afford officers the discretion that prevents prosecution.
Although Halliday filmed the King incident in order to provide evidence, the footage enacted the Foucauldian theory of biopower, by which individuals consciously and unconsciously regulate, and thus subjugate, themselves by conforming to an ideology. Halliday unknowingly facilitated the appropriation of the image into the discursive field of the court, wherein it was subjected to a “racialising gaze” (Poole, 2005: 165), and also pitted as subordinate given that it was captured by an amateur and thus “connoted cultural subordination” (Tagg, 1993: 17). Poststructuralism, as a result of the fluidity of the image, recognises that discursive power is continuously renegotiated through resistance, given that power and knowledge are relational (ibid.; Edwards, 2011). Halliday’s image was disseminated nationally, whereby it was able to “create an alternative economy of images” (Steyerl, 2009), that provoked a response from the public which undermined the ruling of the court and their over-deterministic claim to objectivity. Riots broke out after the footage of King was released, provoking a retrial and the subsequent conviction of the officers. Similarly, riots have broken out following the circulation of footage of deaths of Gray, Sterling and Brown, revealing the fragility of ideological claims to universality. Riots have helped to challenge the legal and judicial systems, and several officers in every case have been forced to resign.
Images were also released on social media following the death of Alton Sterling, who was fatally shot by the police due to racial profiling and gun possession. Sterling’s death was captured on a mobile phone, and also by police body cameras and CCTV. Yet police withheld their footage, recognising the image’s ability to accommodate the prosecution. Images captured by the public, then, are the only images that can be mobilised as evidence against injustices. In 2016, the fatal shooting of Philando Castile was live streamed on Facebook by his girlfriend, Diamond Reynolds. The video was an immediate account of what happened, and as it went directly from Reynolds to the public, it avoided codification by the state. The footage failed to resist ideology in the court, however, and the officer was found not guilty. Regardless, Reynolds, on Facebook, claimed she “wanted everyone in the world to know … I just wanted to get out the truth … the world knows that these police are not here to protect and serve us”. Lolade Siyonbola, the Yale student who had the police called on her whilst asleep, also reiterated that “I always said to myself if I had a police encounter I'd record it on Facebook Live … From my perspective and from the perspective of many others who watched the video, [the police] didn't do the right thing.” (Gerken, 2018). The “erratic and coincidental links between producers everywhere …. simultaneously constitute dispersed audiences” through a ‘visual bond’ (Steyerl, 2009; Vertov in ibid.).
National media sources usually have monopolised coverage of riots, and manipulate protestors to fit their ideologies. During the Ferguson riots following the death of Brown, however, citizen journalism through social media revealed police removing reporter’s cameras, detaining journalists, and even attempting to disable mobile phone towers; the police recognised the threat of social media to their power (Gillmor, 2014). Juxtaposing these images with those used as evidence against PoC facilitates a critical engagement, whilst the number of people reporting on social media allows for a polyphonic reportage with “value defined by velocity, intensity, and spread” (Steyerl, 2009). Black Lives Matter is a particularly successful example of the power of social media in creating networks of support through the dissemination of images of injustices. The movement has pressured the federal government to investigate policing in Ferguson and Baltimore, and also demanded that Democratic politicians submit policy proposals for police reform.
Amateur image production presents a counter-gaze whereby new visual technologies redistribute the power of surveillance and control into the hands of the public (Reading, 2009). Reading (ibid.: 63) proposes the camera phone image as one that “unsettles established cultures of record in contradictory ways. In traversing binaries such as the private and the public, the body and the machine, the material and the virtual, the journalist and the citizen, the mobile camera phone is extending and modifying media languages, practices, and forms”. Mobile phone images are often unclear, yet this means that the camera is no longer a disembodied or neutral mechanism portraying a distanced Other; instead spectators interact and engage with the image and its subject (Steyerl, 2009). The ‘poor image’ is not “assigned any value within the class society of images—their status as illicit or degraded grants them exemption from its criteria” (ibid.). It thus evade subjugation and hierarchy by traversing binaries between Self/ Other, subject/object, white/black, true/false, and more.
Increasingly, too, larger, mainstream media forms are recognising their scope and challenging hegemonic representations of PoC. The Black Audio Film Collective in the UK is an example of this, notably through their film Handsworth Songs (1986) which emanated from riots prompted by police brutality. Rather than presenting monolithic footage of the event, it sought to undermine one-dimensional depictions of the Black community as criminals by contrasting images to provide evidence of the complexity of subjectivity outside of the rhetorics of white/black, true/false. Similarly, more commercial films further challenge homogenous stereotypes of PoC. The Hate U Give (2018) focuses on the life of Starr, a young African-American girl who’s identity fluidly moves between stereotypical images of white and black lives as she lives in an African-American neighbourhood associated with crime, but attends a white private school. Although a fictional story, the film was heavily inspired by real police brutality, and the deaths of Brown, Tamir Rice and Oscar Grant. At one point, Starr claims “It is impossible to be unarmed when our blackness is the weapon they fear”. It is one of the first high-profile commercial films to visualise police brutality and is thus an important challenge to the visual regime of truth.
Images as evidence are peculiar and difficult in so much as they contradict themselves; they disrupt their own ontology and epistemology. “The act of looking is simultaneously an act of ideology, an act of collaboration, and an act of oppression” (Biber, 2007: 110). Unfortunately, a poststructuralist understanding of the role of the image does little to unsettle its position within the ideology of the court that is backed by a history of well-entrenched cultural assumptions. However, this should not, and has not, discouraged the continuous production of images as evidence by both the police and the public. Ensuring a polyphony of visual knowledge production negates any dichotic binaries upheld by discourses of science and the Enlightenment, thus contributing to a production of knowledge that is “simultaneously collaborative, critical, and interventionist” (Poole, 2005: 170).
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