Law, evidence and representation

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Routledge International Handbook of Visual Criminology, 2017, pp. 13 - 23 (11)
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‘Evidence’ is a noun and a verb. It refers to a thing and a process. It might be religious or profane, legal and literary, and perhaps all of these at once. It can be the testimony of a witness, the contents of a document or a real object or place. For the lawyer, evidence can be circumstantial, provisional, rebuttable, presumptively true, reliable, unreliable, or it might demand that inferences be drawn from it. It can be voluminous and complex and it might require specialised knowledge to understand it. It could be something we all know, or it might be something recovered by forensic examination. It can be visible to the naked eye or retrievable only by means of a device. It can be digital, ephemeral, or a trace left behind. Because lawyers love rules, there are lots of laws of evidence, and so evidence must be approached with formality, seriousness and deliberation. Evidence – in law – must never be self-evident and, where it is, there are rules about that too. ‘Representation’ has a distinctive legal orientation. In law, the term ‘representation’ (amongst other uses) can describe any act which conveys meaning. If somebody speaks, smiles, frowns, shrugs their shoulders, raises a hand, raises a fist, rolls their eyes or stamps their feet, these are representations. If they write a note, deliver a lecture or whisper a secret, these are representations. If a person paints the wall of a cave, posts a status update, tags a train, or takes a photograph, each is a representation. Beyond the fact of their occurrence, they mean something. Representations are asserted facts, whether express or implied by their maker, and regardless of what is inferred by the person who hears or observes them. Representations might be made accidentally or fortuitously. They might be factual assertions made by somebody who doesn’t know the facts. They might be statements of belief or desire, intention or expectation, they might be designed to deceive, but they nevertheless contain some kernel of meaning. Representations are raw evidentiary materials. The laws of evidence work on representations to determine what they mean and how they might be used.
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