§ 18.06 DEAD MAN STATUTES

• Jurisdiction: United States

§ 18.06. DEAD MAN STATUTES

Dead Man statutes are intended to protect the estates of deceased or incompetent persons against fraudulent claims. Typically, they disqualify a surviving party from testifying if the other party dies. Such statutes "vary greatly in their wording and coverage, and the attitudes of the courts differ as to their interpretation, even where similar provisions are involved. Consequently, precedents from one state may be of little value in another jurisdiction."⁴⁸ For example, some cover transactions but not torts.⁴⁹ If the statute applies to torts, death need not be caused by the incident subject to litigation — e.g., a party dies of a natural death while waiting for trial.

There has never been a federal Dead Man statute, and only a handful of jurisdictions have retained Dead Man statutes.⁵⁰

Criticisms. While based on a noble aim, these statutes accomplish this goal in a troublesome fashion.⁵¹ They assume that a party-witness's interest in a case will result in fraudulent testimony which, because of death or legal incompetency, cannot be rebutted by the adverse party. This assumption is questionable. In addition, there are numerous other problems with Dead Man statutes. First, the statute is probably ineffective; it will not prevent a dishonest party from introducing false testimony through other witnesses. Second, the statute may be unnecessary; the jury can quickly comprehend the obvious bias of the party-witness and "cross-examination and other safeguards for truth are sufficient guarantee against frequent false decisions."⁵² Third, because of innumerable exceptions and waiver options, these statutes are often difficult to apply.⁵³ Fourth, and most important, the statute works an injustice upon an honest party who is disqualified.

Alternative approaches. Finally, other mechanisms are available to protect the estates of deceased and legally incompetent persons. For example, some jurisdictions require corroboration; others give the trial judge discretion to admit the survivor's testimony.⁵⁴ Still others recognize a hearsay exception for the statements of the deceased or incompetent person.⁵⁵ Such a provision, along with the abolition of the Dead Man's Statute, permits the jury to receive more information, not less, and avoids the injustices of the statute.

--------

Notes:

^[48] See Ray, Dead Man's Statutes, 24 Ohio St. L.J. 89, 91 (1963).

^[49] See Farley v. Collins, 146 So. 2d 366, 370 (Fla. 1962) ("[T]he collision in the instant case...