Colorado Dead Man's Statute: Time for Repeal or Reform?

• Publication year: 2000
• Pages: 45
• Citation: Vol. 29 No. 1 Pg. 45

29 Colo.Law. 45 Colorado Lawyer 2000.

2000, January, Pg. 45. Colorado Dead Man's Statute: Time for Repeal or Reform?

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45

Vol. 29, No. 1, Pg. 45

The Colorado Lawyer
January 2000
Vol. 29, No. 1 [Page 45]

Specialty Law Columns
Estate and Trust Forum
Colorado Dead Man's Statute: Time for Repeal or Reform?
by Herbert E. Tucker

The Colorado Dead Man’s Statute frustrates some judges and lawyers, and juries may be confused by it. It is thought by many to be the most difficult rule of evidence to understand and apply. This evidentiary statute continues to mystify judges and lawyers alike in complexities of interpretation and application. The vagaries and inconsistencies found in the volumes of decided Colorado cases have built one of the most complex and hazardous rules of evidence. The nine exceptions to Colorado’s rule appear at times to have swallowed the rule. As one commentator has stated

A legal beginner, as well as a veteran, well knows that, at its best, the Deadman’s Statute is full of snares traps, and pitfalls, and that we have a rule by a wilderness of uncertain cases as well as rule by an uncertain statute.1

In 1999, House Bill ("H.B.") 99-1236, which called for the repeal of the statute,2 was defeated on the Senate floor. The Trust and Estate Law Section of the Colorado Bar Association has formed a subcommittee3 to study the statute and submit recommendations regarding its modification for the next legislative session. In an effort to assist the subcommittee, this author has surveyed state Dead Man’s Statutes across the country. In an effort to determine whether the Colorado statute should be scrapped entirely or simply overhauled, this article surveys the national trend to repeal or reform this evidentiary rule

History

For many years, English scholars wrestled with the injustices that might be created in sealing the lips of honest litigants to avoid perjured testimony of dishonest litigants. The potential harm in the Dead Man’s Statute is that it may impede the proof of valid claims. The benefit of the statute is that it tends to eliminate or reduce the number of invalid or otherwise unprovable claims.4

The genesis of the Dead Man’s Statute dates back to the sixteenth century English common law. At common law, a party could not testify on his or her own behalf, nor be compelled to testify by an adversary. During the mid-nineteenth century, there was a movement to abolish the common law rule disqualifying parties to a lawsuit as witnesses. In 1843, the English Parliament abolished the disqualification of testimony by interested parties.5

America followed suit, and when the common rule was changed so that a party to litigation could testify, it became apparent that, if the other party to the litigation were dead, the living party had an opportunity to slant the evidence in his or her own favor. In order to reduce the risk of perjury, Dead Man’s Statutes were enacted by the majority of states to balance the scales by barring the testimony of all parties to a suit having a direct pecuniary or proprietary interest in its outcome. The rationale for this rule was that it was the best method of securing the truth to disqualify certain classes of witnesses who were apt to speak falsely from giving testimony. It was said to balance the scales: death had sealed the lips of the decedent and the statute would seal the lips of the witnesses who would testify regarding conversations or transactions with the decedent.6

By the end of the 1960s, thirty-four of the fifty states had enacted some form of the Dead Man’s Statute.7 Since then, thirty-one states and the District of Columbia have repealed or amended their Dead Man’s Statutes and instead have addressed its subject matter in their rules of evidence as a competency rule or as an exception to the hearsay rule.8 However, many of the states that have either repealed or amended their Dead Man’s Statutes still require corroboration or require that there at least be some indicia of truthfulness as a prerequisite to the admission of otherwise incompetent evidence.

The Appendix to this article contains a summary by state of statutes that govern evidence concerning conversations or transactions with a decedent. Among the states that have retained a Dead Man’s Statute, there is no uniformity. Each statute is unique.

The Colorado Statute

Colorado first codified the Dead Man’s Statute in 1870.9 Colorado’s first Dead Man’s Statute was taken directly from an Illinois statute.10 The early Colorado cases reflect that, even in its infancy, the Colorado Dead Man’s Statute contained numerous exceptions to the rule otherwise barring testimony concerning conversations or transactions with the decedent.11

There are currently more than eighty published Colorado cases interpreting the Colorado Dead Man’s Statute,12 which provides in part:

No party to a civil action who is directly interested in the event thererof shall be allowed to testify on his own motion in a suit in which the opposing party is trustee, a conservator, executor, administrator or guardian of an estate of a person living or dead.13

The current Colorado statute is not a model of clarity. In fact, when compared to other states’ Dead Man’s Statutes, Colorado’s is one of the longest and contains more exceptions to the rule than most. Many of its terms also are not well-defined. The volume of reported Colorado cases reflects over 100 years of court interpretation and application of the statute to a wide spectrum of factual situations.14 This has led to a maze of decisions that often have brought confusion. For example, excluding those cases that address the exceptions to the rule, there are approximately forty-seven reported cases defining who is "directly interested" in terms of witness disqualification because of direct gain or loss under the statute.

The Exceptions to the Rule

The major criticism of the Colorado statute is that the number of exceptions to the rule makes it difficult to interpret and apply. Under Colorado’s current version of the Dead Man’s Statute, there are nine exceptions to the general rule that a party directly interested in the outcome of the litigation is incompetent to testify regarding "conversations" or "transactions" with a decedent.15 These exceptions can be divided into two categories, the first of which addresses "conversations" or "transactions" prior to or after the decedent’s death in the presence or outside the presence of the decedent, his agent, family member, heir, or devisee.16 The other exceptions involve "waiver or rebuttal" testimony.17 Unless one of the nine exceptions applies, any person with a direct interest in the outcome of the litigation is rendered incompetent to testify.

The five exceptions that address "conversations" or "transactions" include the following:

1) any person may testify to transactions that occur after the decedent’s death (such as reports of pain and suffering caused by the decedent’s negligent conduct prior to death);18

2) testimony concerning conversations or transactions in the presence of the decedent is permitted where someone aligned with the decedent (such as a family member or legatee or devisee) is present or available at trial;19

3) parties in interest are permitted to testify to conversations or transactions with the decedent where an agent for the decedent first testifies;20

4) an adverse party is permitted to testify where any witness not a party to the lawsuit testifies to a conversation or admission by an adverse party or party in interest occurring before the death in the absence of the decedent;21 and

5) parties in interest are permitted to testify to facts occurring prior to the death of the decedent that occur outside his or her presence.22

The second category of "waiver" exceptions to the...