EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, February 28, 2012

Shepard's Pie: Kyle Graham And The Real Facts Of Shepard v. United States

If you've taught Evidence, you've likely taught Shepard v. United States, 290 U.S. 96 (1933), the (in)famous dying declaration case. If you taught the case, you know the basic facts. Zenana Shepard had taken ill and told a nurse that her husband, Dr. Charles A. Shepard poisoned her. Zenana thereafter died and her husband was charged with her murder. An autopsy determined that Zenana died from poisoning by bichloride of mercury, which Dr. Shepard kept in his medicine chest. At trial, the nurse testified to Zenana's accusatory statement, and Dr. Shepard was convicted of murder, with the alleged motive being that he wanted to take up with another woman. Dr. Shepard thereafter appealed, with the Supreme Court ultimately concluding in an opinion drafted by Justice Cardozo that Zenana's statement was not admissible as a dying declaration because it was not given while Zenana believed that she was knockin' on heaven's door. Instead,

Her illness began on May 20. She was found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared up, and her speech was rational and orderly. There was as yet no thought by any of her physicians that she was dangerously ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse, accompanied by an infection of the mouth, renewed congestion of the eyes, and later hemorrhages of the bowels.

The opinion in Shepard tells a good story, and it is a good way to illustrate the scope and limitations of the dying declaration exception to the rule against hearsay. But what's the full story? That question is taken up by Kyle Graham, a professor at the Santa Clara University School of Law in a recent post on his blog, noncuratlex.com.

In the post, Graham passes along several salacious details gained from combing historical sources. Among these facts:

•The "other woman" was 35 years Dr. Shepard's junior;

•Dr. Shepard asked this other woman to marry him eight times;

•After the Supreme Court reversed his conviction, Dr. Shepard went back to work at a Denver hospital; and

•Dr. Shepard was found "not guilty" upon retrial, validating Justice Cardozo's conclusion that the erroneous admission of Zenan's statement was not harmless error.



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