Shepard v. United States
290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933)

  • Shepard was married, but was in love with another woman.
  • Shepard’s wife was poisoned.  As she lay on her deathbed she told her nurse that she believed that the whisky she had been drinking was poisoned and said, “Dr. Shepard has poisoned me!”
  • Shepard was arrested in charged with murder.
  • At trial, the prosecution attempted to introduce Mrs. Shepard’s statement.
    • Shepard objected on the grounds that it was hearsay.
    • The prosecution argued that under the common law, it was a dying declaration and was therefore an exception to hearsay.
  • The Trial Judge originally struck the statement, but the nurse then testified that Mrs. Shepard also said that she knew she was going to die.  The Trial Judge then allowed the statement to be admitted.
    • One of the requirements for a dying declaration to be admissible is that the declarant must believe they are going to die.
  • The Trial Court found Shepard guilty of murder.  Shepard appealed.
    • Shepard unsuccessfully argued that his wife was suicidal and had poisoned herself.
  • The Appellate Court affirmed.  Shepard appealed.
    • The Appellate Court found that the statement was not admissible as a dying declaration.
    • However, the Appellate Court found that the statement was admissible to prove Mrs. Shepard’s state of mind.
      • Shepard had introduced testimony that suggested Mrs. Shepard was suicidal.  The prosecution argued that Mrs. Shepard’s statement proved that she was not suicidal.
        • People who commit suicide don’t normal accuse others of poisoning them.
        • The statement could not be used to prove the allegation that Shepard actually poisoned his wife, only that she believed that Shepard poisoned her and that belief rebuts Shepard’s argument that she poisoned herself.
  • The US Supreme Court reversed.
    • The US Supreme Court found that the statement had not been used to show state of mind.  The prosecution had offered it as proof of a dying declaration.
      • The trial record showed that the statement was admitted upon the footing of a dying declaration and not merely indicative of the persistence of a will to live.
        • No jury instruction had been issued on how the jury was to use the testimony.
    • The Court distinguished statements that look forward from those that look backwards.  Forward-looking statements about one’s own actions such as, “I’m going to the zoo tomorrow” hold more weight in establishing state of mind, than backwards-looking statements about another’s action such as “I’ve been poisoned.”
      • Basically, in this case you have to rely on Shepard’s wife’s memory.
  • This case modified the Hillman Doctrine by saying that only forward looking statements of intention can be used inferentially to prove other matters which are in issue.
    • Backwards looking statements are now known as “Shepard Statements”.
    • See Mutual Life Ins. Co. v. Hillmon (145 U.S. 285 (1982)).
  • This case was decided under the common law.  Today it would be governed by FRE 803(3).
    • FRE 803(3) specifically excludes statements of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.