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 been admissible in evidence if he were available to testify.

The essential prerequisite to admission of the hearsay statements under this statute is that the adverse party or the adverse party’s agent testify with respect to the matters at issue. Coon v. Am. Compressed Steel, Inc., 207 S.W.3d 629, 635–36 (Mo. App. W.D. 2006) (the purpose of the Dead Man’s Statute was not to exclude evidence that qualifies as a “firmly rooted” exception to the hearsay rule—in this case, the “state of mind” exception).

American Family Mutual Insurance Co. v. Millers Mutual Insurance Ass’n, 971 S.W.2d 940 (Mo. App. E.D. 1998), shows how the statute works. In this case, the issue was whether the insured had given the driver of his car permission to drive it. The defendant offered the deposition testimony of a person—neither the insured nor an agent of the insured—who said that the insured gave her the keys to his car so that the driver could take her home. After the accident, the plaintiff’s insurance company obtained a recorded statement from the insured in which he denied giving the driver permission to use the car. The insured later died.

The insured’s carrier offered the recorded statement as proof of lack of permission on the basis that the offer of the deposition allowed the insured’s hearsay statement to be...