130 David Sklansky

Excited utterance, the evidence-and-proof podcast, episode 130, David Sklansky, the neglected origins of the Hearsay Rule in American Slavery. Welcome to Excited Utterance, I'm your host Ed Chang from Vanderbilt Law School. Excited utterance is your podcast for cutting-edge scholarship and developments in the world of evidence. We bring virtual workshops to you throughout the academic year. This week our guest is David Sklansky. David is the Stanley Morrison Professor of Law at Stanford Law School, and co-director of the Stanford Criminal Justice Center. He teaches evidence, comparative evidence, along with a whole host of courses related to criminal law, and his scholarship focuses on the criminal justice system. Our podcast today features David's new article, The Neglected Origins of the Hearsay Rule in American Slavery, Recovering Queen V. Hepper, which is forthcoming in the Supreme Court Review. In it, David explores the now largely neglected case of Queen V. Hepper, which has two closely related facets. First, Queen was a freedom suit brought during American Slavery, and it addresses the question of what proof antebellum courts would accept to prove that an enslaved person was actually free. And second, from a standpoint of evidence theory, as David argues, Queen set us on the path to the Hearsay Rule that we have today, a rigid, categorical rule of exclusion with specific narrow exceptions. Prior to Queen, many courts interpreted the Hearsay Rule more flexibly, as largely a rule of preferences. So it would prefer live witnesses over Hearsay Declarance, but the rule remains sensitive to evidentiary need. My discussion with David provides a revealing look at this old evidence case, one that not only shows the contingent origins of evidence law, but also asks deep questions on many levels about what might have been. I'm delighted to have you on Excited Utterance. Welcome. I'm very happy to be here. Thanks for having me, Ed. So I've been captivated by this case, Queen V. Hepper, and your terrific article ever since I read it. Before we get into the substance, I'd kind of like to start off with an origin question. So the case is from 1819. It doesn't appear in most case books. And at least in my own case, and I think this is true of you as well, it's a case that we never covered as students. So how did you come upon Queen V. Hepper and what led you to rediscover it? I didn't study it when I was in law school. And it's not in my case book or any of the other case books that I'm familiar with. It will be in the next edition of the case book that I co-ed it with Andrea Roth. But I didn't learn about the case until about a little over a decade ago when I was researching an article about the history of the hearsay rule and its connection with the right to confrontation in criminal cases. And I ran across references to Queen V. Hepper and discovered that it was treated for most of the 19th century and into the 20th century as the principal American authority for the hearsay rule and how it operates. I knew that it was a case in which the ruling against the admissibility of hearsay resulted in the denial of a freedom petition brought by an enslaved person. But even after having discovered the case and realizing the connection that hearsay in this country had with slavery, I didn't start teaching it for years. It seemed to me an interesting historical oddity, but not something that was central to the story that students need to understand about hearsay. And then a couple of years ago, I read a book by a historian named Lil Thomas called a question of freedom, which is about a number of freedom cases brought by enslaved people in the early 19th century and it mentioned Queen V's Hepper and discussed its significance. That reminded me about the case and I started mentioning it to my students. And like a lot of my scholarship, the article wound up growing out of teaching. I discovered, well, teaching hearsay that it seemed to come up naturally. Students seemed interested in it. They seemed to find it significant and it eventually became clear to me that they were right. It is significant. It's something that I think all law students and all American lawyers should know about. So the genesis of the article was, I thought I would write something about pedagogy and how this case should be taught. And as I was writing the article, it became clear to me that the audience wasn't just evidence professors and evidence students, but really anybody who cares about the history of American law and about the ways in which American law and American institutions more generally have their histories wrapped up with slavery. Perhaps we can start with the case itself, which I gather most people are not familiar with. Certainly, I wasn't before I read the article. You had mentioned that the case involves a freedom suit. What's the historical context behind the case and what specifically happened in Queen? So the context is that from the late 18th century up until the Civil War, thousands of enslaved people in the United States filed lawsuits seeking their freedom and in a surprising number of instances, they succeeded in getting their freedom through these suits. So Queen versus Hepburn was one of those lawsuits, although this one proved unsuccessful because of the way the Supreme Court applied the hearsay rule. The case was brought by a woman named Mina Queen on behalf of herself and her daughter, Louisa Queen, they were enslaved by a guy named Hepburn in the District of Columbia. And Mina Queen argued that her enslavement and the enslavement of her daughter were illegal because Mina Queen's great-grandmother had come to America not as an enslaved person, but as an indentured servant. This was a common basis for freedom petitions. Slavery in the late 18th century and early 19th century generally was thought to descend on the maternal side, so people often argued that their enslavement was illegal because a maternal ancestor had not been a slave or had been illegally enslaved. And Mina Queen argued that her great-grandmother, a woman named Mary Queen, had come to the United States as a free woman and therefore Mina Queen and her daughter were being illegally held in slavery. Their case was argued by a lower name Francis Scott Key four years before he became famous for writing the Star Spangled Banner. And it was unsuccessful because the trial court and then the Supreme Court of the United States ruled that the evidence that Mina Queen put forward to prove that her ancestor Mary Queen had been a free woman when she came to the United States was inadmissible because it was hearsay. And what kind of hearsay was it? Well, Mary Queen, Mina Queen's great-grandmother was no longer living at the time of this lawsuit that was common in these freedom cases. So Mina Queen had to rely on secondhand evidence about Mary Queen's status. So her lawyer introduced evidence in the form of depositions taken from people who had spoken with Mary Queen or had spoken with people who knew Mary Queen. And these people relayed in their depositions what they had heard from Mary Queen or what they had heard from people who knew Mary Queen about Mary Queen's origin. The fact that she had not been born in Africa that had been born in South America and it came to the United States, the England and acted and dressed as a free woman when she came to this country. So it was thirdhand evidence about Mary Queen's origins and about her apparent status when she came to the United States. That was the kind of evidence that enslaved people had to rely on if they were going to bring freedom petitions and in many cases that evidence had been allowed and had succeeded in securing freedom for enslaved people. So as a matter of the hearsay rule, this is where things get really interesting. Under modern doctrine, the inadmissibility of the hearsay is technically correct, unless you want to expand one of the exceptions for family history. It's an out-of-court statement offered for the truth of the matter asserted. But you suggest in the article that at the time, the contours of the hearsay rule were quite different and that they were not as rigid, in fact quite flexible. Can you tell us more about how hearsay operated at that point about 200 years ago? It basically operated the way that law students at the beginning of the evidence course expect the hearsay rule to operate, which is to say that it was a flexible rule with a evolving set of exceptions. It was largely treated as an application of the best evidence principle. And when I say that it was treated the way law students expected to be treated, I think every evidence professor knows that half the battle in learning hearsay for students is understanding the rigid counterintuitive way in which the rule operates. Because by the time students take evidence, they've taken a lot of courses in which they learn that every rule has an exception and that if it doesn't seem sensible to apply the rule in a particular instance, courts come up with ways to restrict the rule and they expect that the hearsay rule will operate in the same way. They expect that when there's a case where it seems really unjust not to allow in some second hand statement that the courts will allow it in because of the reasons that make it unjust to exclude it. That's not how the hearsay rule operates today, but it is by and large how the hearsay rule operated in the late 18th century and the early 19th century. What changed in the 19th century was that the rule became the kind of rule we know today, which is a strict rigid rule with a bounded series of exceptions that gets applied even in instances where it seems unjust. And most of the instances in which it will seem unjust to apply the hearsay rule are instances where first-hand live testimony is unavailable. And those are the kinds of instances where in the late 18th century and the early 19th century hearsay generally got in. And the significance of Queen versus Hepburn is that it was the principal authority for most of the 19th century well into the 20th century for the fact that the hearsay rule doesn't operate that way. The hearsay rule bars out of court statements to prove the truth and matter asserted even when live first-hand testimony cannot be obtained. I guess the question I have on this score is why. And maybe this is a very difficult question to answer, sort of looking at the historical record. But it seems that Chief Justice Marshall and the Supreme Court took something of a different turn in Queen V. Hepburn and decided to declare he say as this kind of absolute rule with very rigid exceptions. And then it effectively, and maybe this is just the power of the Supreme Court, but the Supreme Court was not that influential back in the day, it becomes accepted throughout all jurisdictions as the way to think about the hearsay rule. So the why question is why do you think the Supreme Court went in this direction? And why do you think other courts decided to adopt the rule as it was stated in Queen V. Hepburn? Yeah, I think those are hard questions to answer with confidence. But I think what's most likely is that the Supreme Court went the direction they went in Queen versus Hepburn because of two kinds of reasons. The first reasons don't have to do with slavery. They have to do with the emergence of legal profession with the increasing control that lawyers exercised over trials. And with the emergence of what we now know as evidence law is a way for lawyers, trial lawyers in particular to seize control of the trial. And that was a process that was underway both in England and in the United States. And it was reflected in decisions even before Queen versus Hepburn, and certainly after Queen versus Hepburn, that treated the hearsay rule as more rule-like and less as an equitable principle than it had been previously. I think that what pushed the Supreme Court over the edge in Queen versus Hepburn or what may well have accelerated the process was that this was a case involving a petition by an enslaved person for freedom. And John Marshall was a major slave owner. And Paul Finkelman's recent book Supreme Injustice does a nice job probing the ways in which Marshall's interest as a slave owner covered lots of his decisions. Like many people who own slaves, he was a member of societies that sought to end slavery by forcibly sending African-Americans back to Africa, but also like many slave owners, particularly large, major slave owners like himself. Marshall was very uncomfortable with the idea of African-Americans living freely in this country. So he said in the majority opinion that he wrote for the Court in Queen versus Hepburn that this was not a case about slavery. It was just a case about the rules of procedure and the fact that this case involves slavery shouldn't change how those principles operate, but I think that it's unlikely that the slavery context was irrelevant to him. I think that is part of what motivated him. Marshall said in his majority opinion for the Supreme Court in Queen versus Hepburn that no man could be secure in his property if hearsay was admissible. And beyond the chilling use of the word property to refer to human beings, that's a striking statement because it suggests that he himself may have been thinking about the ways in which enslavement depended on erasing people's families' histories, erasing their heritage, flattening them and turning them into people who were fully defined through a caste system. So I think that the way in which the use of hearsay evidence could be used to unravel enslavement was probably significant from Marshall, although we can't know for certain. I think it may have been significant for some of the courts that later followed Queen versus Hepburn, because as you pointed out, it wasn't automatic that other courts had to take the rules of evidence that the Supreme Court applied in Queen versus Hepburn. Lower federal courts would, but a court in Maryland applied Maryland law, a court in Virginia applied Virginia law, except that in the late 18th century, early 19th century, lots of questions, including questions of evidence law like how the hearsay rule operates were treated as part of general law, which meant that they weren't strictly federal. They weren't strictly Virginia or Maryland. They had to do with general principles that transcended jurisdictional lines. So that meant that, let's say, the Supreme Court in Tennessee or the Supreme Court in Virginia had to figure out, are they going to follow the Supreme Court's opinion in Queen versus Hepburn? Not all of them did, but most of them did. Man, I think they did partly because of the reasons that were pushing courts in the United States and England to solidify the hearsay rule even before Queen versus Hepburn, and partly because of the special circumstances of slavery, which in the early decades of the 19th century pushed courts to try to tighten the availability and restrict the availability of freedom petitions in lots of ways, not just through an expansion and increasing rigidity of the hearsay rule, but impart through an expansion of the hearsay rule and making it operate in an increasingly rigid way. So interesting that it's almost a perfect storm. You have one thread, which is the theory about the professionalization of the legal profession and the way that the doctrine seems to be evolving, and then you have it mixed with the policy concerns of the day and the politics of slavery that create this particular rule. And then interestingly, as you suggest in your article, Wigmore was against this categorical approach as well, but even Wigmore, by that point, was too late, and I recalled that the quote from your article was that the ship had sailed and that But there's nothing. that Whigmore could do about it anymore. I think it's interesting that Whigmore, who is often remembered for praising the hearsay rule as one of the best gifts that the Anglo-American legal tradition had given to procedures for fact-finding across the globe, also said that it was insane to apply the hearsay rule in instances where live in court testimony was unavailable. He thought it should be a rule of preference, insane is my word. His word was pedantic, but he wrote this when he wrote the first edition of the treatise in 1905, and by that point, the ship had sailed. By that point, the hearsay rule in the United States was a rigid rule. It did apply clearly even when in court testimony was unavailable. And the principal authority for the way in which the hearsay rule operated was Queen versus Hepburn. So for my final question, I wanted to return to some of the things you mentioned at the beginning of our discussion and how the fact that you're teaching Queen V. Hepburn comes out of your teaching that you previously had some misgivings about teaching the case in evidence class and then that over time you changed your mind. If you could, could you tell us more about that conflict and why you think it's important that Queen V. part of the evidence candidate and why evidence professors generally should teach the case? Well, I was reluctant to teach it initially, partly because it seemed like a historical oddity, and partly because I worried that it would feel gratuitously upsetting to many students, particularly black students and students of color, but not just black students and students of color. I worried that it would feel cheap and exploitative, and I worried that the hearsay rule was hard enough for students to wrap their heads around as it is, and I thought introducing a really upsetting case like Queen V. Hepburn could make it even more difficult. But I discovered that I found myself talking about the case because it seemed to matter, and I eventually tried assigning the case and asked students how they felt about having to read it and discussing it in class, and the reactions were overwhelmingly positive. I think, in part, because I was careful about how I used the case, and in particular, I was careful to explain to students why I was assigning it, and what I thought they should take away from it. I was assigning it not just because it's a case by a famous American Supreme Court justice, but because it's an important case in the history of the hearsay rule, it's a part of how that rule developed in the United States. It also illustrates in a particularly clear and vivid way some important things for students to understand about the hearsay rule, which includes the fact that it can operate to cause injustice, as well as to prevent injustice, and that it can operate to cause injustice, particularly in cases where live in court testimony is unavailable. I start my teaching of the hearsay rule every term that I teach evidence, as many people do, and have done for centuries with Walter Raleigh's case, which is a nice illustration of why the hearsay rule can make sense and how it can prevent injustice, and I think it's important for students to know that that case has been cited for centuries as a justification not just for the confrontation clause, but for the hearsay rule. But I also think that students need to see the other side. There's a natural tendency, particularly when a rule is hard to learn. When you finally master it, you can be reluctant to think that maybe it's a mistake. And I just think that the Raleigh case supports such a heroic, celebratory version of the hearsay rules history that it's important for students to get the other side. And I think for lawyers and for Americans in general, it's also important to understand how the history of all of our institutions in this country, including evidence law, are wrapped up with slavery. I think teaching Queen versus Hepburn is a way of recognizing that complicated awful history. And it's an important part of the reckoning that we all have to do. It's also, I think, a modest form of remembrance. As I mentioned earlier, the slavery operated in part by a racing history, by a racing people's family histories and heritage, and slotting them into an all-defining system of racial caste. And the hearsay rule, in a way, was enlisted in that enterprise. It was a way of a racing family history that in individual instances threatened to unravel enslavement. Nothing we do today can remedy the wrong that was done to enslave people, including Mina Queen and her daughter, Louisa Queen, but we can try to do what we can to reckon with that history and to do as much justice as we can. And I think recognizing the history, remembering what happened to Mina Queen and Louisa Queen, remembering the way in which what happened to them was in part because of the hearsay rule. And in part, help to establish the hearsay rule that we have today is a necessary part of our reckoning with the legacy of slavery. Well, David, fascinating discussion. Thanks for rediscovering this important case and taking the time to talk about it on the podcast, great having you on the show. Thank you so much for having me, Ed, and for letting me talk about this. As I mentioned at the start of the interview, I've been captivated by Queen V. Hepburn and its story since I first read David's article. One of the things that happens with learning and teaching clear, well-established, codified rules is that one starts to assume that those rules were always that way. The hearsay rule, for example, is rigid and categorical. If you have an out-of-court statement offered for the truth of the matter asserted, it's inadmissible unless you can satisfy one of the narrow exceptions. Yes, there's the residual exception under 807, but that's a bit of an outlier. And in practice, you don't really take it very seriously anyway. Much of the modern critique about the hearsay rule, though, comes from this rigid structure. As David suggests, the rigid structure does create injustice. It creates obstacles to getting at the truth. For example, why can't someone use information stored on their phone, or a tweet, or a screenshot, or at least, why can't we use that information without going through all of the complex machinations that are the hearsay exceptions? What the history surrounding Queen V. Hepburn shows is that hearsay didn't have to be the way that it is. It could have been a flexible, preferencing rule. One that prefers live-in-court testimony, but can easily shift away and admit the hearsay when it's all that's available. Recognizing that evidence rules are contingent in this way is an important part of keeping evidence law alive and maintaining the hope that evidence can change to meet modern needs. The fact that Queen was closely bound to the politics of slavery only serves to further emphasize the point. As David suggests, the hearsay rule can be both a source of justice and injustice. And at the same time, if Queen had not been a freedom suit, perhaps we wouldn't have the rigid hearsay rule that we deal with today. I think David makes a compelling case for teaching Queen V. Hepburn as part of the evidence canon for the many reasons that he mentioned during the podcast. It will be interesting to see if he convinces those of you who teach evidence as well. Support for excited utterance is generously provided by Vanderbilt Law School's Brandstetter litigation and dispute resolution program, as well as the University of Arkansas School of Law. The associate producer is Alex Nunn, and the production editor is Madeline D. P. A. Drew. Additional production assistance is provided by Kyra Hammond, and the music is provided by the Vanderbilt University Blair School of Music's Children's Chelo Choir under the direction of Kiersten Castle Greer. I'm your host, Ed Chang, and I hope you'll Join us again next time when we take on another new work in the world of evidence and proof.