Section 16.20 Dead Man’s Statute

• Library: Evidence 2017

F. (§16.20) Dead Man’s Statute

When one of the parties to a transaction—or the party’s agent—is dead or incompetent to testify, the estate or other party is at an obvious disadvantage if statements by the deceased or incompetent person cannot be admitted. Statements of these persons offered for their truth would obviously be hearsay because the declarant is, by definition, not around to testify in court. The legislature addressed this obvious unfairness in § 491.010.2, RSMo 2016, which provides:

2. In any such suit, proceeding or probate matter, where one of the parties to the contract, transaction, occurrence or cause of action, or his agent in such matter, is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay, provided that in trials before a jury, the trial judge shall first determine by voir dire examination out of the hearing of the jury that the declarant would have been a competent witness and that his alleged statement or statements would have...