The Cultural Afterlife of Criminal Evidence (2024)

During the criminal trial, evidence takes the form of witness testimony, documents, and physical objects and places. The rules of evidence and criminal procedure operate to tightly regulate the collection, admissibility, and interpretation of evidence during criminal proceedings. This article explores what happens to criminal evidence after the conclusion of legal proceedings, described here as the afterlife of evidence. The text investigates the ways that this material proliferates in the shadow of the law, in cultural and commercial contexts. Acknowledging a substantial cultural curiosity about true crime and its artifacts, this article sets out some of the new questions that are posed by this material after legal proceedings have concluded.

Scholarship examining the cultural afterlife of evidence represents a contribution to visual criminology, characterized by critical engagement and interdisciplinary sources. As Carrabine (2012, pp. 486–487) has explained, criminology’s “cultural turn” has drawn scholarly attention to the transformation of “traumatic experiences into visual art” and relies upon research sources and methods from art history, critical theory, ethics, jurisprudence, and cultural criminology.

In its afterlife, criminal evidence has aroused the interest of artists, writers, publishers, collectors, scholars, curators, and journalists. Whether it is photographic or video evidence, private diaries and correspondence, weapons, human remains, physical objects, or forensic data, this material might be found in high-end art galleries, in retired detectives’ garages, in public archives, museums, and commercial auction houses, and it can be distributed and shared online and through social media.

At the end of a criminal trial, the judge makes orders about the distribution, destruction, and preservation of evidentiary materials. Personal possessions are usually returned to their owners, police and prosecution materials will be governed by state record-keeping processes, and illegal or hazardous items may be destroyed. However, in the digital age, there is no meaningful distinction between an original and a copy, and so evidentiary materials might be in several places simultaneously, and sometimes completely beyond the capacity for any lawful governance or regulation. While this status can give rise to new creative and transformative opportunities for accessing, understanding, and interpreting evidentiary material, it also demands consideration of the legal, ethical, affective, and aesthetic challenges that arise from the cultural afterlife of criminal evidence.

Evidence, Archive, and Afterlife

Finding facts, resolving disputed facts, and deciding what happened are the core purposes of litigation. The term evidence refers both to the material adduced in legal disputes and the legal processes deployed in using that material. In the Anglophone legal tradition, a foundational principle of the law of evidence is that fact-finding must be conducted rationally. Evidentiary processes also need to be fair. Materials and data that can assist in fact-finding become reconceived as “evidence” and are controlled by strict rules—the laws of evidence—which control their collection, access, use, and interpretation.

The concept of archive is used here to imagine the place where evidence goes after the conclusion of legal proceedings. Whether that place is a traditional record-keeping institution or not, contemporary understanding of the archive enables us to trace the movements and uses of criminal evidence outside the legal process. Contemporary cultural scholarship enables us to understand the archive as a repository, a subject, a method, or an aspiration (Steedman, 2002; Burton, 2005; Merewether, 2006; Riles, 2006; Enwezor, 2008; Spieker, 2008; Vismann, 2008; Stoler, 2009; Biber, 2011b, 2013; Farge, 2013). It relates not only to the preservation of materials, but also how they are organized and imagined, the various ways that responsibility is taken for this material, and the relationships that are formed with it. Described variously as “archive fever” (Derrida, 1995), the “archival impulse” (Foster, 2004), and the “archival turn” (Stoler, 2002, pp. 94–96), these concepts refer to the fetishization of, or orientation toward, the archive itself, as a repository of materials that have survived loss or destruction. The contemporary concept of the archive functions within a wider cultural sensibility that recognizes that the archive can be constantly revised, unstable, immediately accessible, and endlessly distributed and modified. This sensibility can tolerate archival transmissions that might be creative, revisionist, interventionist, speculative, nonserious, or counterarchival (Stanhope, 1999; Baron, 2014; Motha & van Rijswijk, 2016). Understood in this way, when criminal evidence is transferred to the contemporary archive, law’s rational and fair aspirations for evidence fade away.

The afterlife or survival of cultural objects derives from the scholarship of the art historian Aby Warburg (1866–1929), whose writing enabled us to see time as an important concept for historical and cultural understanding. Warburg’s contributions to cultural scholarship have been more recently demonstrated and advanced by another art historian, Georges Didi-Huberman (b. 1953–) (2002, 2005), whose work has been adopted by visual criminologists examining the power of images (Carrabine, 2014, 2016). For Didi-Huberman (2005, p. xxii), a surviving object “having lost its original use value and meaning, nonetheless comes back, like a ghost, at a particular historical moment: a moment of ‘crisis,’ a moment when it demonstrates its latency, its tenacity, its vivacity.”

The survival of evidence after the law’s work has concluded invokes the concepts of archive and memory, transparency and secrecy, sensitivity and dignity. These arise from the fact that evidence and legal process is a matter of public record, however much evidentiary material might be private, personal, humiliating, or traumatic. New concepts are needed to strike a balance between disclosure and discretion, and the concepts of sensitivity and dignity have been proposed for their existing status within jurisprudence and their capacity to respond to complex entanglements of public and private information (Biber, 2013). Other scholars have proposed “contextual integrity” as a framework, recognizing that certain materials need to remain within their intended context to protect them from misuse or misinterpretation (Nissenbaum, 2004).

Some of the afterlives of evidence might be shocking, such as graphic displays of sexual violence and homicide (Sante, 1992; Bond, 2009; Biber, 2010, 2011b). Some might appear to willfully aggravate or interrogate the traumatic criminal circ*mstances from which the evidence arose (Simon, 2003; Biber, 2006; Jones, 2008; Biber & Dalton, 2009; Scott Bray, 2011). Other afterlives are transgressive for the illicit means by which the evidence was obtained by its creative users (Jackson, 2009; Biber, 2011c). If the judicial principle of open justice—the belief that justice must be seen to be done—is taken seriously, in their afterlife, the materials of justice when viewed beyond the law can sometimes enable us to see too much or too little, or from a distorted angle.

Official Record-Keeping Institutions

Traditionally, the documents and objects gathered during a police investigation become “police records.” The materials used in the prosecution of criminal cases become “state records.” As public records, these materials are formally subject to the regulations and policies associated with state record-keeping or state archives. These regulations govern what types of materials must be preserved, how long they are to be kept, whether they are to be made accessible to the public, and, if so, after what period of time. These regulations also govern the destruction of some records, as all archival practices acknowledge the heavy resource burdens associated with preservation. Typically, public records will be kept for a period of time by the agency that created them, after which they will be appraised or classified in order to determine whether they will be preserved or destroyed. If preserved, access directions will be determined, establishing how much time must pass before these records become available to potential users. In the case of criminal records, these are usually kept closed or made unavailable for a long period of time, primarily to protect the privacy, dignity, or other sensitivities of the personnel associated with the criminal case. Once that period of time has passed, police and prosecution records that have been retained in state archives can usually be accessed by following the established protocols of that record-keeping agency.

Timothy Garton Ash, The File

In his book The File, the historian and journalist Timothy Garton Ash described the process by which he accessed his Ministerium für Staatssicherheit (Ministry for State Security, or “Stasi”) file (1998). As a student, Garton Ash had lived in both East and West Berlin, later returning regularly as a reporter for the English press. His movements and activities were observed by Stasi operatives who kept him under surveillance, used informants within his networks, and kept a file containing all this information. While Garton Ash was never subjected to criminal prosecution for his activities, his book describes many of the effects, dangers, and surprising opportunities that can arise when official records survive to lead an afterlife. Following the collapse of the Berlin Wall in 1989, the establishment of the Stasi-Unterlagen-Behörde (Stasi Records Agency) enabled file subjects to access their files, and Garton Ash did this. When it was released to him, 15 years after it was created, he was suddenly tumbled back into that earlier world, only somehow askew, as reports in his file bore only a spectral relationship with his own memories and his personal diaries from that time. He described the file as “325 pages of poisoned madeleine” (Garton Ash, 2007) and his book is a memoir of the time as recounted by his file, also narrating his quest to track down and interview all the informants and Stasi operatives who kept him under surveillance.

The Stasi-Unterlagen-Behörde was established explicitly to ensure that the documentation created under the German Democratic Republic regime was preserved and made accessible to file subjects and researchers. In its afterlife, these files are governed by what Garton Ash (1998, p. 21) described as a “scrupulous bureaucracy,” which ensures that specialist archivists preread files and redact them if necessary, to ensure that the names and identities of “Stasi victims or innocent third parties” are not disclosed. In an observation that is common to many afterlife revivals of official criminal and state records, Garton Ash (1998, p. 221) wrote, “However sober-minded and responsible the people, the procedures, and the whole atmosphere may be, there is still a voyeuristic thrill to knowing such intimate details of other people’s lives.” Voyeurism and pleasure describe some of the effects of permitting criminal evidence to lead an afterlife, and some scholars express unease about this (Biber, 2016b, 2017).

The Lindy Chamberlain Collections

Lindy Chamberlain is the victim of Australia’s most notorious miscarriage of justice. During a camping holiday in 1980, her baby Azaria was taken from the family’s tent by a wild dingo, but Lindy and Michael Chamberlain were convicted of her murder. Having exhausted their avenues of appeal, it was only the chance discovery of one of Azaria’s missing garments, found six years after her death in a dingo lair, that prompted a Royal Commission; this was an independent judicial inquiry with wide-ranging investigative powers, the findings of which resulted in the Chamberlains’ exoneration. The case is the subject of the feature film Evil Angels, released outside Australia and New Zealand as A Cry in the Dark (1998, Fred Schepisi, director), a prime-time television miniseries Through My Eyes (2004, Di Drew, director), bestselling books and autobiographies (Bryson, 1985; Chamberlain, 1990), an opera, poetry, artworks, dance performances, and theatrical works, as well as countless cartoons, jokes, and articles in the new media and women’s press.

The National Museum of Australia has acquired the nonpaper materials associated with the life and death of Azaria Chamberlain and her parents’ wrongful convictions. The collection contains the evidentiary material that was tendered at the Chamberlains’ trial and subsequent proceedings, including all the clothing in which Azaria died. In 2014, the museum also acquired the Chamberlains’ old Torana motor vehicle, which was alleged to be the murder scene and which was taken for forensic examination and returned to the Chamberlains decades later, in pieces. The museum’s curators remain in close contact with the Chamberlain family, and they consult with the family concerning any contents and manner of any exhibitions and use of the collections. For example, there is an agreement that the clothing in which Azaria died, which contains her blood, desert sand, vegetation, and also the markings and cuts left by forensic examination, will not be displayed at this time.

The National Library of Australia (NLA) holds the Papers of Lindy Chamberlain (MS 9180), a collection of 213 archive boxes containing correspondence, poetry, photographs, telegrams, newsletters, books, drawings, legal transcripts, and other materials held by Lindy Chamberlain-Creighton, as she later became known. One of the most significant parts of that collection is the 20,000 letters received by Lindy Chamberlain during her legal ordeals and imprisonment, all of which she kept and arranged and later donated to the NLA. Written by self-professed “ordinary” people, most of them supporters of her innocence, these letters “reveal the depth of emotional involvement in the Chamberlain case experienced by countless thousands of ordinary Australians” (Cunningham, 2009, p. 263). While the Chamberlain papers are not, strictly speaking, legal records, they intermix legal and nonlegal materials, and this mixing is significant because it was undertaken by Lindy Chamberlain herself. Put together by the legal subject at the center of a scandalous conviction, inquiry, and exoneration, Lindy’s collection and arrangement of the papers transforms them into a significant form of evidence about the criminal process—one that documents a wrongful conviction. The fact that Lindy Chamberlain-Creighton herself elected to give these materials an afterlife by donating them to national collection institutions is an important ethical and historical decision, ensuring that in our understanding of crime and criminal justice, we remain vigilant against miscarriages of justice.

Criminal Evidence in the Museum

For over a century, criminal collections have attracted interest and attention from visitors and viewers interested in crime-themed leisure, a phenomenon now known as “dark tourism.” The museum is now, more than ever, a site where criminal evidence and associated displays might be seen, and the museums exhibiting criminal materials range from private collections, which might be sometimes macabre and illicit, to public and publicly funded museums. Scholars have begun to examine the role of museums in providing a public understanding of crime, as well as the entanglement of education and entertainment in the museum display of criminal evidence (Huey, 2011, Rafter, 2014).

The Forensic Photography Archive (FPA)

The Forensic Photography Archive (FPA) is one of the world’s most important and distinctive collections of police photographs, created by the New South Wales Police in Australia between 1910 and 1964. These materials are public records, although they are held in the custody of a heritage and museums agency, Sydney Living Museums (SLM). The FPA is a closed collection because of its physical fragility (many of the photographs are made on glass plates) and the sensitivities and potential dangers associated with public records relating to criminal matters. This is compounded, in the case of the FPA, because the documentation associated with the photographs was lost or destroyed, so there is limited information about the criminal investigations that these images were created for. This means that some of the people in the photographs may have never been charged or were acquitted, were victims of crime, or were children, or in some other category for which there are legal limitations upon their access and use.

Despite being closed, the FPA is regarded as a treasure of cultural heritage, and so SLM has sought to provide access to it, and information about its scale and significance, through selected interpretive projects. Exhibitions drawn from the FPA at Sydney’s Justice & Police Museum and the Museum of Sydney have been the most successful events in their history, and books illustrating the FPA have won awards (Doyle, 2005, 2009). Scholars, historians, and creative writers have relied upon its holdings, fashion designers have been inspired by the archive, and theatrical projects have been staged in response to selected images from the collection. As the FPA’s existence and contents become better known, SLM is facing growing challenges about the management of the collection and the provision of access to it by those who seek to use these images for other purposes. Scholarly, creative, commercial, and other users regularly seek to access and use the images, and SLM is obliged to balance concerns about the aestheticization of crime and trauma, the demands of users who seek to use historical records in pursuit of creative or commercial enterprises, the limited knowledge about the context or purpose for which some images were created, and their own constrained resources.

Forensics: The Anatomy of Crime

During 2015, the Wellcome Collection in London held an exhibition called “Forensics: The Anatomy of Crime,” which explored the history of forensic science techniques as tools of criminal investigation and included many objects, images, and ephemera from that history, as well as cultural and creative works made from and about forensic criminal materials. Many of the exhibits on display were derived from criminal evidence. For example, visitors could see a small jar of maggots in formaldehyde, retrieved from the homicide victims of Dr. Buck Ruxton in 1935, which was contextualized within the exhibit as an early example of forensic entomology. The exhibition included police crime scene photographs, weapons, training materials, scientific equipment, and items containing human remains.

The exhibition also featured one of Frances Glessner Lee’s dollhouses, part of her Nutshell Studies of Unexplained Death, a collection of at least 18 miniature dollhouses made by Glessner Lee between the 1930s and 1950s to assist police detectives to learn techniques of criminal investigation. The dollhouses are based on scenarios from real-life death investigations and are still used in police training courses; they are held at the Medical Examiner’s Office in Baltimore, Maryland. Further perpetuating the afterlife of the crimes represented in the dollhouses, the artist Corrine May Botz has taken beautiful photographs of the “nutshells,” and these are reproduced in a lavish book available at the Wellcome gift shop (Botz, 2004). Coinciding with the exhibition was a screening of the film Of Dolls and Murder (2012), based on the “nutshells,” directed by Susan Marks and featuring a voice-over by the film director John Waters. The Oxford Professor of Poetry, Simon Armitage, who also participated in events accompanying the exhibition, wrote a series of poems about the “nutshells” and also made a Radio 4 documentary about them http://www.bbc.co.uk/programmes/b04mgxt4.

The display of the “nutshell,” and the manner in which these crimes have generated other cultural and creative enterprises, reflects one of the aims of the Forensics exhibition. The curators, Lucy Shanahan and Shamita Sharmacharja, from the outset were interested in displaying artworks alongside the forensic exhibits, in order to further explore the challenges of crime, violence, and representation. In particular, they sought out artworks made by women, and the exhibition included works by Jenny Holzer (Lustmord), Teresa Margolles (Sonida de la primora incision toracica durante la autopsia, a una victim de asesinato/“sonidos de la morgue/sound recording of an autopsy”), Sally Mann (The Body Farm), Angela Strassheim (Evidence), Taryn Simon (The Innocents), and Šejla Kamerić (Ab uno disce omnes) (From one, learn all), among others. One of the effects of this juxtaposition of art and crime was the blurring of the boundary between these items. For example, real crime scene photographs were framed and hung in the manner of artwork and placed alongside photographs by crime-seekers such as Weegee (1899–1968) and Enrique Metinides (1934–), commercial photographers who “chased” police and took their own photographs at crime and accident scenes. This mixing of art and evidence invites further critical scholarship from visual criminologists, including research into the role of displays as tools of both criminal investigation and the cultural afterlife of crime (Linnemann, 2017).

The Crime Museum Uncovered

Between 2015 and 2016, the Museum of London exhibited a major exhibition titled “The Crime Museum Uncovered.” The Crime Museum is the collection held by London’s Metropolitan Police at New Scotland Yard. Colloquially known as the “Black Museum” (a name that police and curators now explicitly disavow), The Crime Museum is closed to the public. The Museum of London’s exhibition was an attempt to demystify The Crime Museum by exhibiting some of its contents in the context of its own history as a police institution and a repository of crime history. The Museum of London exhibition was the result of a complex collaboration with the Metropolitan Police Service and the Mayor’s Office for Policing and Crime, together with the London Policing Ethics Committee. A series of committees oversaw the process of selecting objects that the Museum of London would then curate, and the process was overseen by a professor of ethics and involved ingoing consultation with the Victims’ Commissioner. The curators were determined to strike a balance between providing public access to some of the objects within The Crime Museum, and also reflecting on questions of ethics, voyeurism, and legality.

For example, considerable thought was given to whether and how to display objects associated with the crimes of Dennis Nilsen, a serial killer whose crimes were committed in the late 1970s and early 1980s in north London. Nilsen and his crimes remain very well known in London, and it is thought that not all of his victims have been identified. He is currently serving a life sentence for six counts of murder and two counts of attempted murder, but he is suspected of having killed at least 12 young men. The Crime Museum holds the cooker and cooking pots associated with Nilsen’s postmortem treatment of his victims’ bodies. These objects are widely known to be held in The Crime Museum, and images of them can be found online. The curators were conscious of distinguishing between public knowledge, public interest, and public demand. On one hand, the purpose of the exhibition was to provide public access to a closed collection. However, legal arguments were made that these objects were potential evidence related to unsolved murders, although the likelihood of further prosecutions was very small. There were also arguments that the families of unidentified victims, some of whom were still communicating with police, might be distressed by the inclusion of these objects. In the end, the curators decided not to include the cooking equipment but to explicitly acknowledge its absence by including within the exhibition some interpretive materials to explain the process and decision. While they decided not to exhibit the objects, they did show photographs of them, in part because these were already available to the public on the Internet.

Making Art from Evidence

A rich and diverse range of visual artists make creative work from criminal artifacts and criminal records. Some of this work is explicitly archive-based, engaging closely with its criminal origins and context. Sometimes this work is about the voyeurism or fascination that characterizes some contemporary interest in crime and evidence.

Throughout the 20th century, the archive has been the site of repeated return by artists confronting history, historicity, order, linearity, time, and bureaucracy. Artists including Christian Boltanski, Joseph Beuys, and Gerhard Richter used archival fragments in an attempt to memorialize the past. This archival fascination continues into the 21st century, where manipulation, citation, and documentation became widely practiced artistic techniques. Archival materials form the basis for transgressively imagined pasts, as in the work of Tom Sachs and Alan Schechner, who played with alternative endings or aesthetic aspects of the Nazi Holocaust (Biber, 2009). Other artists have riffed on the disjuncture between the notoriety of certain crimes and the banality of the criminal evidence produced to prove them; for example, Jamie Wagg enhanced photographs taken from security cameras showing the two-year-old James Bulger being led away to his death by two ten-year-olds (Young, 1996). Others have recontextualized real evidence, taking it out of the archive and into the gallery, inviting us to find aesthetic qualities or other transevidentiary attributes in archival objects; for example, William E. Jones has screened police surveillance footage taken in a men’s public toilet in 1962, and which was used to convict at least 31 men for sodomy. Now, in an artwork titled Tearoom (1962/2007), Jones invites contemporary art viewers to watch the footage not as criminal evidence, but as evidence of the history of the policing of gay sexualities and as a rare document of gay sexual practices in an American town in the early 1960s. Numerous artists have used the crime scene as a site of creative engagement, rephotographing locations in which homicides occurred in order to produce new claims upon forensic aesthetics or criminal processes (Biber, 2013).

Also evident is the practice of forensic and legal practitioners who make artwork associated with their professional lives. For example, Jason File is a prosecutor at the International Criminal Court at The Hague, as well as an artist and art educator at the Royal Netherlands Academy of Arts and Sciences in Amsterdam. His role as a prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) led to The Hole Truth (2015), a series of canvases, each indented with a small circle of paper; these circles are hole-punch waste taken from evidence binders at the ICTY that contain fortuitous fragments of text, such as “The End,” “Next Time,” “The Void,” and others http://www.jasonfile.com/works/#/the-hole-truth-2015/. The canvases represent the fact that during the excavation of mass graves in Bosnia and Herzegovina during bad weather, forensic examiners were provided with circus tents to shield them while they worked. The uneven surfaces beneath the canvas also reflect the topography of the region, locating the mass graves or other criminal incidents on maps used at the ICTY.

Scholarly Uses of Criminal Evidence

Scholars have turned toward criminal evidence in both their teaching and research practices. Showing evidentiary material in the classroom is undertaken in a wide range of disciplines, including law, criminology, policing, forensic sciences, sociology, and history. In one respect, using real materials is a highly effective tool for the engagement of students and the application of concepts to real-life scenarios. In another respect, the shift in context gives rise to ethical questions that demand pedagogical reflection. While most criminal justice educators have likely thought about how they might present evidentiary material in the classroom, the police shooting of Rodney King in Los Angeles in 1991 has received detailed critical scholarly reflection (Gooding-Williams, 1993; Galligan, 1994), giving rise to the wider use of evidentiary visual materials in classrooms examining policing practices in particular.

Criminal Evidence and the News Media

Criminal evidence has been at the center of a new culture of openness in the relationship between courts, the police, and the media. Driven by the principles of open justice and transparency, the commercial news media has taken advantage of criminal justice administration practices that conflate openness with access and provide criminal evidentiary material to media agencies, often without reflection upon whether this actually serves the objectives of open justice. In the digital age, much evidentiary material is born digital, including photographic images, closed-circuit television footage, citizen footage, visual recordings of police interviews, social media content, and electronic communications. Augmented by private diaries, images of exhibits, and the substantial and eclectic contents of police briefs of evidence, these evidentiary materials are made available to media agencies during the trial, and they might be viewed by public audiences at the same time as they are being examined by jurors or judicial officers.

More than ever before, these materials are available online and are screened on prime-time television, driving traffic onto media sites and stations. In some instances, such as the broadcast of the murder trial of Oscar Pistorius in the High Court of South Africa in Pretoria, public access to the evidence is firmly situated within the context of the wider criminal process. In other instances, such as when audiences can consume footage or audio recordings of homicides or other acts of violence or trauma, without further reporting or explanation, little thought is given to the conflation of commerce and voyeurism. Here, we see how criminal evidence might lead a life that is not an afterlife, but a life that unfolds concurrently with the evidentiary process (Biber, 2014, 2016a).

Cultural Representations and Criminal Process

The afterlife of criminal evidence is dynamic, and the cultural processes and contexts in which evidence survives or revives are in a state of constant transformation. While there are instances in which scholars have been critical of this afterlife, it remains important to emphasize that legal processes are not separate from, or in conflict with, cultural processes, but rather are mutually sustaining. Cultural representations and interventions made from criminal evidence help legal scholars and practitioners to understand how the rules of admissibility, exceptions, prohibitions, and protections—collectively, these are the rules of evidence—represent sites of sensitivity and confidence within legal discourse. Legal concepts and categories are only of value because they describe and defend the cultural field. The work of the law is endlessly implicated in cultural work, which is why cultural products that respond to law’s materials can be powerful and moving. Seeing evidence culturally reminds the legal scholar of evidence that, whereas questions of admissibility are determined on an in/out basis, more troubling and fascinating are the processes of reasoning with evidence. Cultural engagement with criminal evidence discloses new ways of seeing what criminal evidence is, but even more so our sensitivities to what it does and to what we do with it.