David Alan Sklansky, Stanford Law School, has posted The Neglected Origins of the Hearsay Rule in American Slavery: Recovering Queen v. Hepburn, which is forthcoming in the Supreme Court Review:
The American hearsay rule took its modern form in Queen v. Hepburn, an 1813 decision by the United States Supreme Court that kept a woman and her daughter enslaved by blocking evidence that one of their ancestors had been free. More than any other decision, Queen v. Hepburn transformed the hearsay doctrine from a flexible preference for live testimony into a rigid rule of evidentiary exclusion. It also buttressed the institution of slavery by closing off one of the few legal avenues through which people in bondage could seek their freedom. It is the most important hearsay case in American history, but most law students never learn about it, and most evidence instructors are unfamiliar with it.--Dan Ernst
This article traces the background of Queen v. Hepburn, explains how the Supreme Court decided the case, and explores its momentous ramifications. It also discusses how and why the case should be taught in American law schools. Lawyers should know the full background of the rule that, more than any other, distinguishes the law of evidence in the United States from the procedures followed in almost every other liberal democracy. They should understand the role that the ban on hearsay evidence played in supporting American slavery and, conversely, the role that American slavery played in the development of the hearsay rule.
