Earlier this year the West Virginia Supreme Court of Appeals invalidated the
long standing and often-criticized Dead Man’s Statute, a statutory rule of evidence that prevented testimony
against a deceased’s estate. Litigators invoked the rule when an interested party attempted to
testify about past personal transactions with the deceased. Courts have
interpreted these terms differently since the enactment of the rule in the
mid-nineteenth century, but generally, an interested party is one that has a
personal interest in the outcome of the litigation,3 and personal transactions are any method that derives
information from another.
The Supreme Court of Appeals invalidated the rule in State
Farm v. Prinz.
Prinz involved an attempt by the estate of a
passenger killed in a car accident to recover from the umbrella insurance
policy of the driver Piper’s grandparents, but there was a question as to
Piper’s residence at the time of the accident. If Piper lived with his
grandparents, the policy covered the incident; if he lived at home, it did not. At trial, the estate of the passenger introduced
considerable evidence that Piper lived with his grandparents, but the court granted
the estate’s motion to exclude testimony that Piper lived with his parents. The
jury ultimately determined that Piper lived with his parents.
On appeal, the Court noted the many criticisms of the Dead Man’s
Statute while explaining past application of the law in West Virginia. Then the Court recognized the rule-making authority
granted to the Court by the state constitution. The Court further explained
that although the West Virginia Rules of Evidence authorizes legislative
statutes that address evidentiary matters, the Court still maintains authority
to review a particular statute to determine its continued validity. The Court conclusively found that the Dead Man Statute
conflicts with the constitutional rule-making authority of the Court, and invalidated
the rule.
Ancient English common law rules prohibited a party in any lawsuit, not
just lawsuits involving past transactions with a deceased person, from
testifying on their own behalf, or compelling an adversary to testify, because
the courts considered juries incompetent to assess the credibility of
witnesses. Later legal scholarship questioned this
assumption, however, and legislatures began to repeal the disqualification. Dead Man’s Statutes garnered support as the courts and
legislatures began to repeal the common law disqualification in the nineteenth
century to favor jury assessment of witness credibility. Supporters’ rationale was that even though the legal
system was moving toward jury assessment, the estate of a deceased person still
needed extra protections, so interested parties should not be allowed to
testify to an issue that may otherwise be contradicted by the deceased’s
testimony. In essence, courts and legislatures
thought that the temptation of an interested party to testify falsely was too
great to allow a surviving party to testify against the estate of the deceased.
Courts trust the jury to assess the credibility of testimony in other
situations, but the Dead Man’s Statute inexplicably prevents this task of the
jury. The Statute sometimes prevents an
honest claimant from using testimony that is necessary to prove a claim. For example, the rule prevented the defendant’s
testimony about the driving behavior of the deceased in a wrongful death suit, which effectively prevented the defendant from giving
his side of the story.
The rule also
prevented the use of a plaintiff housekeeper’s testimony regarding an oral contract
between herself and her deceased employer, and thereby rendering her unable to
obtain compensation for years of services. Because of the potential injustices and inefficiencies, the majority of
jurisdictions has repealed the law in some way, and have allowed juries to
evaluate the credibility of witnesses when testifying against a deceased
person’s estate.
In its discussion of the effects of the invalidation, the West Virginia
Supreme Court of Appeals cautioned that other evidence and testimony must still
be admissible under the Rules of Evidence. In his concurrence, Justice Ketchum noted a possible revision to the
Rules of Evidence in light of the Court’s holding. He suggested a new hearsay
exception that allows testimony about a past statement of the deceased if the
judge determines that the deceased made the statement on her own personal
knowledge, in good faith, and under circumstances that indicates the statement
is trustworthy. In the meantime, he additionally guided
judges to assess admissibility of such evidence under the Rules’ “catch-all”
provision.
Invalidating the Dead Man’s Statute allows courts to decide which party
is honest the same way it does in cases not involving past transactions with
someone who is deceased such as oath, cross-examination, and witness demeanor.
Now when a claimant has only her own testimony upon which to rely,
anachronistic rules will not prevent the claimant from testifying on her own
behalf. The abolition of the rule, though, emphasizes the need for experienced
attorneys who can expose perjury through cross-examination. These changes in
evidentiary rules are welcome, however, as the results will increase the number
of cases decided on the merits, and properly allow juries to evaluate the
credibility of interested parties’ testimony.
