The Evidentiary and the Black Body

In this final episode of the miniseries, Erica Moiah James speaks with her friend and colleague, Sora Han. Erica and Sora were fellows at the Clark Art Institute together in 2024. While Erica was working on this project about representation in the Caribbean, Sora was working on a project about Charles Gaines, and his work Manifestos 4, which is a visual engagement with the Dred Scott decision of 1857, which denied Black people the right to citizenship, and therefore also the right to sue for their right to freedom. Sora is a legal scholar and comes to art history with a background in law. In this conversation, they discuss the stakes of naming, of using Black bodies and lives for “evidence,” and the ways in which seeking to name a portrait takes part in a discourse that extends beyond art history and into the legal sphere. In this concluding discussion, Erica discusses the stakes in art history, and the possibilities for art history as a discipline to allow society more broadly to rethink how images are deployed as evidence––on social media, in the courtroom, and beyond.

Transcript

Erica Moiah James 
I am Erica Moiah James, an art historian, curator, and associate professor at the 
University of Miami. I was previously the founding director and chief curator of 
the National Art Gallery of The Bahamas, when it was founded in July of 2003. 
Over the next episodes, I will discuss Portrait of a Young Woman and reflect on 
what it means to search for the name of a historical individual in the archive. 
What tools might I, as a contemporary art historian, use to uncover the possible 
history and life of the woman who remains unnamed? In this process, I'm using 
the traditional methods of art history to think about how art history as a 
discipline has historically and structurally made it both difficult to name 
unnamed figures of color within historical portraiture and also has used 
representations of Blackness such as this as evidence for claims to deny the 
presence and vitality of Black life in the early modern world.

I do not know if I will ever find this particular woman in the archive. But in my 
search, I make a claim that this work is both necessary and that it begins to do 
reparative justice within a discipline that has all too frequently settled for 
assuming absence in the archive instead of doing the essential historical work to 
illuminate Black lives. 

In this final episode, I talked with my friend and colleague, 
Sora Han. Sora and I were fellows of the Clark Art Institute together. While I was 
working on this project about representation in the Caribbean, Sora was working 
on a project about Charles Gaines and his work, Manifestos 4, which is a visual 
engagement with the Dred Scott decision of 1857, which denied Black people 
the right to citizenship and therefore also the right to sue for their right to 
freedom. 

Sora is a legal scholar and comes to art history with a background in law. In this 
conversation, we discuss the stakes of naming, of using Black bodies and lives for 
evidence, and the ways in which seeking to name a portrait takes part in a 
discourse that extends beyond art history and into the legal sphere. In this 
concluding discussion, we discuss the stakes of art history and the possibilities 
for art history as a discipline to allow society more broadly to rethink how 
images are deployed as evidence on social media and in the courtroom.

Okay, Sora. How are you? 

Sora Han
I'm good, Erica! I'm so glad to have this forum for just kind of revisiting our 
conversations that we had at the Clark.

Erica Moiah James
And even as I was going over this, I'm like, maybe there's something else I want 
here because for me, our work and research sort of mirror each other in a way. 
Like we're playing this kind of dance, but you're doing it in a different way, and I 
am trying to use very traditional methods. But in my work, as I mentioned in our 
email conversation, what I'm concerned about is the concept of the evidentiary 
in the Black body, and I wanted you to talk through your work in relation to that 
through art and law, like how does it come together? Because as you know, in 
this work, I'm using a really sort of old-fashioned detective work of really 
particular methodology that's really intended to prove the existence and the life 
of this 18th century woman, right? And I believe this portrait is of a real person 
rather than fabulated person; that this is an image with flesh attached to it, you 
know? That there's a living, breathing person on the other end of this. 

But I'm constantly reminded that I'm a contemporary art historian looking at a 
historical image, and I am informed by the moment in which we live where, as 
you know, Black embodiment, at least for me, is disaggregating from Black 
representation under law, and especially when there are instances where Black 
people intersect with state agents. I just remember I used to watch videos of 
Laquan McDonald or Walter Scott and all of these individuals who were being 
killed. And then I would listen to the ways in which that video, smartphone video, 
was used as evidence. And increasingly, what we saw was being challenged, you 
know, whether it was real or not, or whether that body, you know, we all might 
agree that something violent was happening to that body, but just seeing it was 
no longer enough evidence to prove it. And I found that very strange. In fact, I 
think Walter Scott's murder was the last sort of video that I looked at. I couldn't 
even bring myself to look at the George Floyd video, you know?

This is a big question, but how did we get here and what might this mean? If you 
agree or disagree, you know, what might it mean for historical research like mine 
that often depends on the evidentiary, you know, and my interest in the Black 
body in particular?

Sora Han 
Yeah. Yeah, I mean, these are really important questions, Erica. And you know, I 
spent a year sort of being able to witness art historians do what they do to track 
down evidence, to verify evidence, to, I would say, and this is kind of my first 
point of distinguishing, I guess, between historical methods and the question of 
evidence in legal processes. And your reading of this portrait is such a beautiful 
case in point. The work that one might undertake to prove that the subject and 
this portrait was a real-life living person at one point versus a completely 
imagined figure, right? I would say that that is a form of verification that the law 
sort of assumes about certain kinds of evidence, but ultimately the sort of aim of 
proof in a criminal trial for the prosecution of these police officers involved in 
lethal use of force.

The question of proof there is less about whether they committed the act that 
caused a death, although certainly, you know, defense attorneys would sort of 
also try to challenge that. The difficult question of proof really is about the 
mental state of the officer, right? So, in a certain way, I think art history and law 
sort of share in the activity of verification, of collection, of ordering, of, kind of 
narrating a sequence of evidence over a period of time. But the question of proof 
and what historians are out to prove versus what a prosecutor in these legal 
cases that we're talking about are after to prove are very different things. And 
what struck me when you asked this very pointed question to me is that in your 
case, you are tracking a kind of archival, historical, biographical, path to verifying 
this figure's real-life existence in the past. In these police prosecution cases, 
they're tracking evidence to an immaterial space, which is to determine what's 
called “the mens rea” of the defendant, right? The mental state.

So, in criminal law, there are two elements to a crime, usually. One is the act, the 
physical act. And the other one is having a certain mental state. And, you know, 
there are various forms of mental states that then sort of calibrate within a 
taxonomy of criminal behavior what kind of guilt or responsibility should be 
assigned or judged. But so that's a really big sort of difference here and I guess 
for the purpose of what we're talking about, which is like this sort of terrain of 
visual culture and visual evidence, what that means is that what starts out as sort 
of empirically, visually common in say, you know, the world of portraits, right? 
From the portrait you're looking at, portraits that people are taking on their cell 
phones, for example. Within that terrain, the kind of forms of judgment and the 
protocols for judgment and sense making are radically different. 

I want to sort of, I guess, maybe throw it back to you to sort of respond to that. 
But to me that's like one of the biggest sort of differences for scholars like us who 
are working interdisciplinarily to find ways of working through that difference so 
that we can come to a set of questions where the protocols and methods you use 
and the protocols and methods I use might actually, you know, be in conversation 
in new ways. 

Erica Moiah James
That's fascinating. That's fascinating because now I'm thinking about a few things. 
I'm thinking about something, it’s not random, but eyewitness testimony and the 
ways in which, in recent years, we've questioned the sort of dependability of 
that, of what we think it is that we see. But I'm also interested in that word, that 
fabulous word you just used to describe that it's not even about the body of the 
person that was harmed. It is about the mindscape of the person who's being 
accused of harm, that there's something abstract within law, in relation to the 
body where I am trying to think about representation as attached to flesh. The 
purpose of the law is more concerned with representation as tied to something 
deeply immaterial, right? In terms of intention. Which I find so interesting! 

But I also find it interesting in your choice to research Charles Gaines. Suddenly, I 
see that relationship very differently because Gaines is about that space, that 
sort of thinking space in some ways. He may say no, but for me, a lot of his work 
is very immaterial. He dematerializes, right? And he's not as concerned with 
representation in the way that I am concerned with it right now with this 
particular portrait, but something else. And, you know, what is it about his work 
that, in a sense, is useful to you or you found useful to opening up the ways in 
which you can then reflect back on law?

Sora Han 
Thank you for this question, Erica, because I don't think that I ever would've 
made this connection had I not been pushed to sort of think about it. And I think 
that this is related to your work as well, right? So, I have a question for you. So, 
the way that I see the two, Gaines’ is work, Gaines’ project over the many 
decades, and the way that I see the sort of technology of representation in law 
being mobilized is through this process of formalization and abstraction. So, the 
law expands its reach and its power and its authority by being able to take 
discreet events, discreet disputes, and draw similarities between them. And in so 
far as two cases are similar, then a legal judgment or a legal principle can cover, 
you know, vast terrains of various kinds of issues. And the inverse is also true. So, 
as you know, insofar as you can sort of say that two cases are so different that 
then you can limit the reach of law and law's applicability. So that process of 
determining how far the law’s reach can go over the kinds of disputes that come 
from our social world is mobilized through a process of abstraction. 

What I find compelling in Gaines' work is that he actually starts with some kind of 
figurative representation—we can think about his studies of trees. He starts with 
a figurative representation, but then he develops a system of translation and 
transposition that then sort of creates layers of abstracted sort of echoes of that 
initial representation. I feel that historical work, and you can correct me if I'm 
wrong, but you know, the ambition of a historian like you, Erica, to go back so 
many centuries, right, to follow a certain trail of evidence over the course of 
centuries, to be able to establish, right, sometimes with total certainty, but in 
many instances, historians are just sort of saying, based on our protocols, based 
on our procedures, we are very confident, right, in offering a certain verification. 
And that process of inference, to me, also operates through this process of 
abstraction. And, so, I just see these kind of inferential interpretive processes as 
all in different way, some self-consciously, some less, you know, sort of, 
intentionally operationalizing abstraction, and I really just am inspired and it sort 
of provokes my thought processes, but also like very viscerally kind of charges 
the question of sense making when I see Gaines representing that process of 
abstraction.

Erica Moiah James
That's fascinating by the way. I think I just saw it differently—well, in a different 
and in a new way for the first time. But yeah, because it reminds me of Dawoud 
Bay, the artist. Dawoud Bay always talks about, you know, that for an artist,
processes, thinking, you know, making the work is thinking. That just came to 
mind as you were describing Gaines’ trees because in a sense, what I do as an art 
historian, I'm kind of making Gaines’ trees. I can't get the complete story, right? It 
is an approximation, it is an abstraction in a way, even though there are things, 
there may be tangible elements, it's always an incomplete. It's always an 
incomplete process, even though I have this very fixed object at the end that 
might be the focus of my inquiry. At the very same time, I can always only 
approximate that, as a historian, you know, looking at the past because the 
archive can only yield so much, right? Yeah. So, I find that really quite beautiful.
There’s something human about that suddenly that encompasses my desire to 
know, but also the space of unknowing that really rests side by side, I think in my 
research. 

Yeah, that was really rich for me! I'm sorry! I'm sorry, but I have one simple 
question and it's about that idea of precedent. You talk about precedent and law 
and does law consider fully context and shifting ways of living and seeing over 
time as we are increasingly doing that in art history, right? Social art history 
developed to be more conscious of the ways in which seeing itself and the life of 
an object changes over time. And I'm wondering if there's a similar kind of 
consideration in law where sure there's precedent, but I mean, how does 
precedent work within the context of time within history in relation to changing 
social conditions? 

Sora Han
I think that, you know, there maybe was a time when I would've said that there is 
enough in the legal archive for precedent to encapsulate all the social issues and 
social needs that have been excluded from the purview of legal remedy to, you 
know, emerge to the surface as explicit, formal legal issues that courts and that 
advocates and plaintiffs and all of the kinds of actors that mobilize around legal 
change can contribute to. And I don't feel that way now. And I'm not going to go 
into the sort of very, you know, circumstantial and contemporary sort of crises in 
the legal institution that I think many people feel. And so instead, I guess at least 
my turn to art and contemporary art critics and art historians and people 
engaged in a wider terrain of cultural production—why that's so important to me 
is because, you know, we have the power to sort of give new form, new narrative 
and develop new arguments around what kinds of precedent we believe are still 
necessary for us to take up and materialize in socially meaningful ways, and what 
kinds of precedent actually need to be remedied in the form of reparations, in 
the form of recognizing state crimes, state neglect. And I feel that the formal 
legal channels are really hamstrung, I guess, by the question of how much 
maneuvering is possible around the question of precedent. Because as we know 
with the overturning of Roe v Wade, that is the sort of most blatant example of 
the way in which precedent is not protective of civil rights.

So, here we are, right, with a strange, very fragmented sense of a groundlessness 
for law, where the meanings of justice that are supposed to anchor law are 
absolutely being repressed from its discourse. And then on the other hand, a sort 
of political amalgamation between, you know, traditional values and legal values 
on the other. And this is kind of where we're at, you know, how do we encourage 
people to actually just sort of take legal interpretation into their own hands? And 
that's kind of what I see in Charles Gaines' work, as well—his most recent work. 
There are other examples of artists doing this, and I think that, you know, 
precedent in the art context is a very useful way to think about the crisis of 
precedent in law. Which is to say that artists are working through the history of a 
particular form in order to arrive at their aesthetic or their particular practice, 
and I feel that that is something that everyday people can do in relationship to 
law. So, let me just say a really concrete example is that in this moment of the 
erosion of civil rights, which means that precedent is being, you know, rolled 
back, right? So, it either formally or that these broad federal anti-discrimination 
protections around voting rights or equal opportunity, et cetera, that those forms 
of broad protections are being, you know, in different ways kind of defanged and 
watered down. In those moments, you know, the precedent of the spirit of the 
movements that gave rise to those kinds of broad civil rights protections, you 
know, how do we keep that alive in every person and in the ways that people 
relate to each other? I think that that is sort of on the scale of what I'm thinking 
about when I hope that there is more serious kind of attention to the relevance, 
the legal relevance, of what artists are doing in their work. And, you know, I'm 
not really sure whether that is, you know, a kind of alternative or a hopeful 
vision.

Erica Moiah James 
No, I think it's actually quite rich. In fact, I've been a critic of my discipline for so 
long that I think it's really refreshing to hear an instance where art history and 
the ways in which I think it's been really self-reflexive, maybe decolonized in the
last few years or decades, I would say, might be useful in another, you know, in 
another space and the legal space in particular. I find that fascinating, and I don't 
know, maybe it gives me a little bit more hope. Maybe I need to lay off a little bit 
and see, you know, like maybe we're in a good place where the things, the sort of 
self-reflection that the discipline of art history has had to go through in the last 
25 years, 20 to 30 years, in order to remain useful, right, and relevant. It seems as 
if some of those methodologies would be incredibly useful in law right now just 
based on what you're saying and the ways in which you're looking at art
conceptually and abstraction in particular to sort, to really grapple with that 
indeterminate space, I think it's fascinating and I can't wait to see, you know, 
what happens, what may come from your investigation.

Sora Han
The way that you describe the stakes of your investigations through this portrait 
of making image flesh, right, is, and strangely, the very same work that I feel is 
precluded by the kind of obviousness of the evidentiary nature of the body. And 
this, you know, terrain that you're talking about with the social media sort of 
capture of these events of, you know, basically police murdering Black people just 
for being on the street or living their lives. And that idea of image turned flesh is 
exactly what I think is at stake in the ways that the law wants to close down 
interpretation of that evidence. 

Erica Moiah James 
Wow.

Sora Han
And in certain instances, opens up when it's convenient. So, I'll just say that with 
George Floyd, you know, with the case of prosecuting the officers who killed 
George Floyd, the prosecutors were telling the jury “believe what you saw.” That 
is one way in which we can interpret the law, sort of saying this image is not just 
an image, right? It is this sort of contact point between a visual representation 
and a real life.

Erica Moiah James
Yes.

Sora Han
I think that that's what they were saying. The point though, and I think that this 
is, you know, also something that is shared in this kind of interdisciplinary 
conversation between us is that, you know, when you arrive at a name for this 
figure in your portrait or when a jury is able to render a decision based on an 
understanding that a visual representation refers to an actual human being, 
right? That the question of justice and then the question of writing history and 
the question of, you know, how our institutions, whether it's art history or legal 
history, continue to push the boundaries of what history and writing history, you 
know, are in this current moment. I think that, you know, those are not 
necessarily answered when we have what we want as a correct verdict in the 
prosecution of a police officer. Or when we're able to, you know, arrive at a name 
for one subject, right? The stakes are so much bigger, and I think that having 
those conversations is also what this work of the evidence and the questions 
around how we narrate it and what it's, you know, setting out to prove. I think 
those are also, well, at least for me, those are, you know, equally as important as 
the kind of narrower areas of you know, investigation and verification. 

Erica Moiah James 
This has been really great.

Sora Han 
Oh, thank you!

Erica Moiah James 
Thanks for the insight. I think interdisciplinary work is so—we say it all the time—
but it really is hard to do when you want to be careful and ethical and all of these 
things. But I think to take it on, I think you've hit a really sweet spot, and I think 
the work will be meaningful. I really do. 

In closing, I want to bring this project into the present with a brief consideration 
of Lynette Yiadom-Boakye’s contemporary oeuvre consisting of portraits of 
people she's never consciously met or known in relation to this portrait. YiadomBoakye portraits render figures from her imagination, and yet they're so filled with character and life. So much so that the literal non-being is a truth that is 
hard to parse. Even as I think of my desire to know and name our 18th century 
figure, I'm also considering what registers these non-persons as human in 
representation. Is it the painterliness of the figures, stills, and often dark baroque 
spaces? Is it the ethereal light many figures emerge from? The artist has stated 
that, “although they're not real, I think of them as people known to me. They're 
imbued with the power of their own, indeed a life of their own.” I want to 
consider the ways in which Yiadom-Boakye representations ooze life in relation 
to the ways art history denied Dido Belle, and Marcus Fitzroy Thomas, the 
possibility of life despite a similar gravitas.

I want to think of the archival work being done to reveal the story of Joseph, a 
Haitian born man who became a model for early 19th century French artist, most 
notably as Theodore Jericho's apex figure in the raft of the Medusa, who later sat 
for his own portrait by the artist. Through this work, I want to think deeper of 
this unknowability embedded in Portrait of a Young Woman and the ways all of 
these portraits point to the manner in which Black representation, and through it 
Black life, can disappear and reemerge as it moves through time as we see 
through epistemes or discourses, even as the representation itself remains 
unchanged.

I find this waxing and waning of what Sora Han describes as, “the evidentiary 
aspect of Black embodiment in life,” fascinating, especially in an age when 
everything is imaged, and the epistemes in which they are embedded remain 
unseen and unknown. What might these portraits and images suggest about the 
fugitivity of Black representation itself and the ways it may affirm lives lived 
historically, but in our present, lead simultaneously to the disaggregation of Black 
life from Black bodies in ways that echo art history's past. The contemporary 
archive renders the contours of a still undefined problem of representation that 
may be at the heart of why an image of a non-person may seem so real and that 
of a real Black person in historical images must be proven.

As one follows the ways eyewitness testimonies in the legal system are put in 
question, an untouched visit, videos recorded on smartphones that visualize 
harm against a Black person's body are no longer regarded as irrefutable 
evidence of its intentional destruction. Where does that leave us? Especially in a 
digital age where representation will increasingly be filtered and fabulated 
through AI. It may seem old fashioned to turn to the archive and to this type of 
research, but perhaps it's my way of saying “no” to the architectures of erasure 
unconsciously embedding itself in visual assessments today as I insist through 
this portrait that Black aliveness, like history itself, refuses to fade from view.

Caro Fowler 
Thank you for listening to In the Foreground Conversations on Art and Writing. 
For more information and links to the resources referenced in this episode, 
please visit clarkart.edu/rap/podcast. The Clark's Research and Academic 
Program would like to thank Erica Moiah James for her collaborative role in 
crafting this special iteration of the podcast.

In the foreground was co-created and produced by Caroline Fowler and Caitlin 
Woolsey, with editing by Caitlin Woolsey and Chase Bradshaw, sound mixing by 
CJ DeGennaro, an additional support from Shawnette Smalls and Noelle Derksen. 
Our intro music is by lightchaser and the music excerpts used in this special 
season are by Tomas Aquino and Maria Isabel Trinidad from the Smithsonian 
Folkways compilation Music from the Dominican Republic Volume 2, The Island of 
Espanola, released by Folkways Records in 1976, with more details about the 
songs featured available on our podcast webpage.

The Clark Art Institute sits on the ancestral homelands of the Mohican people. 
We acknowledge the tremendous hardship of their forcible removal from its 
homelands by the colonial settlers, a federally recognized nation. They now 
reside in Wisconsin and are known as the Stockbridge-Munsee community. As we 
learn, speak, and gather at the Clark, we pay honor to their ancestors past and 
present, and to future generations by committing to build a more inclusive and 
equitable space for all.