•  
  •  
 

Abstract

In 1933, the Court, in Shepard v. United States, limited the “dying declaration” exception to the prohibition against hearsay. Shepard has been cited over 500 times by courts of appeal, the decision appears in evidence casebooks, and scholars have challenged it as robbing the voice of victims. However, there has never been a legal history of the decision. The case arose from a criminal conviction that occurred in the last days of the “Roaring Twenties,” and the appeal transited through the courts in the first years of the Great Depression. The Court, in a unanimous decision authored by Justice Benjamin Cardozo was just beginning to see challenges in the district courts against President Franklin Roosevelt’s New Deal programs. Those challenges, unlike Shepard, would result in fractured opinions. Shepard’s trial focused more on dueling experts over the cause of Zenana Shepard’s death and her mental state than it did the dying declaration. Indeed, Zenana’s dying declaration came into evidence through a witness who spent a few minutes on the stand and, in comparison to the over dozen medical specialists and members of the military community, it was hardly any time at all. The validity of a legal history is in clarifying and illustrating the conditions of the trial and appeals, the participants in it, and the reason for the decision. Without the dying declaration, a retrial acquitted Shepard and one might think that the dying declaration was the difference between a conviction and an acquittal. But the conduct of counsel and the judge’s conduct in the first trial were also factors in his initial conviction. The legal history provides the background and context of the decision and, in doing so, also enables a view of American law and society, and, in particular, military society from almost a century ago.

Download

Share

COinS