My Law Professor Amici Curiae Brief Asks the Supreme Court to Make it Tougher For Prosecutors to Introduce Evidence With an Accusatory Component

With J. Remy Green, I have filed a law professor amici curiae brief with the United States Supreme Court, asking it to make it tougher for prosecutors to introduce evidence with an accusatory component. The brief covers cases in which, for instance, a murder victim tells a friend days before he dies, “I’m afraid my neighbor is going to kill me because we got in a fight last week.” Under Federal Rule of Evidence 803(3) and state counterparts, this statement would be admissible under the state of mind exception to the rule against hearsay to establish the victim’s fear of the neighbor. But it would be inadmissible to establish that the neighbor/defendant fought with the victim days before the murder. The question is thus whether jurors can compartmentalize the statement into permissible and impermissible purposes.

In the brief, I contend that they cannot and that the Supreme Court has already ruled on this issue, albeit in an opinion that seems largely forgotten in the twenty-first century.

Here is the Summary of Argument from the brief:

In Shepard v. United States, 290 U.S. 96, 104 (1933), this Court laid out a clear rule regarding the exclusion of evidence with an accusatory component that could confuse jurors. According to Justice Cardozo’s opinion, “When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.” Id. This rule recognizes the dangers surrounding hearsay statements with an accusatory component and specifically the state of mind exception that was used by the prosecution in both Shepard and the case at hand. Thereafter, between 1940 and 1999, courts across the country routinely cited this Shepard standard in a variety of contexts, including cases involving accusatory hearsay, character evidence, and post-arrest silence. These words from Shepard about upsetting the balance of power were so popular that the United States Court of Appeals for the District of Columbia Circuit dubbed them the “oft repeated words of Justice Cardozo.” United States v. Brown, 490 F.2d 758, 766 (D.C. Cir. 1973). Indeed, during this stretch of sixty years, this Court reaffirmed and reapplied this Shepard standard in United States v. Hale, 422 U.S. 171, 180 (1975). It also cited to this Shepard standard in creating the Bruton doctrine. See Bruton v. United States, 391 U.S. 123, 132 n.8 (1968).

With the turn of the century, however, courts have largely stopped citing this standard from Shepard, resulting in only three citations between 2000 and 2025, with one of them being in a dissenting opinion. Without addressing this Shepard standard, many courts now give great deference to jurors, defaulting to the belief that they can compartmentalize evidence with an accusatory component into permissible and impermissible purposes. This has created a split in how courts treat accusatory statements that implicate the Bruton doctrine and accusatory statements offered under the state of mind exception. Moreover, it has created a silent contradiction in a previously settled body of law: Shepard remains binding precedent—as do Circuit and State high court opinions following it—even as courts create new bodies of law that contradict it.

Recently, this Court reaffirmed that evidence can be so unduly prejudicial that its admission violates the Due Process Clause by rendering the trial fundamentally unfair. See Andrew v. White, 145 S.Ct. 75, 83 (2025). This Court should similarly grant certiorari in this case to reaffirm its holding in Shepard, clarify the splits that have emerged, and conclude that courts must exclude evidence with an accusatory component if it contains a risk of confusion so great as to upset the “balance of advantage.” 290 U.S. at 97.

Finally, this case presents a particularly good vehicle to clarify this split, because of how clearly the jury was encouraged to make improper use of confusing evidence, even with the curative instruction the trial court gave after the fact. In closing, the government blew by its promise not to use the evidence for truth, citing the evidence admitted only for state of mind—“He is scared that Tim has people after him”—but then declaring: “he was right.” Transcript of Closing Argument at 20, ECF No. 532 (emphasis added). Either Shepard still means that “[i]t will not do to say that the jury might accept the declarations for any light that they cast upon the existence of a vital urge, and reject them to the extent that they charged the death to some one else,” or the lower courts that have silently split from it are right to ignore it. Shepard, 290 U.S. at 97. But either way, this Court should clarify, since only this Court can.

You can read the full brief by clicking here.

-CM