Dead Man Talking
Here is a peculiar feature of Virginia evidence law that might seem counterintuitive to some attorneys, or even downright baffling to others. Sometimes a Dead Man can tell tales, but a survivor cannot.
Let’s take an example.
I.M. Oldman, is preparing to check his mailbox which is next to the street. C. Les Driver comes along in his light blue Toyota pickup truck, driving too fast and distracted by a text message on his cell phone. His truck veers slightly off the road and brushes the side of Mr. Oldman, just enough to spin Mr. Oldman around and knock him to the ground, where he strikes his head hard on the pavement. Driver gets about halfway down the block, glances in his review mirror, and sees Mr. Oldman lying on the ground. By the time he goes around the block and gets back to Mr. Oldman lying by his mailbox, several minutes have passed, and he sees Mrs. Oldman and her next-door neighbor bending down and talking to Mr. Oldman. When Driver pulls up and gets out of his Toyota truck, Mr. Oldman’s neighbor says to Driver, “Oldman just told us a light blue Toyota truck suddenly swerved off the road and hit him, and then he hit his head.”
Driver doesn’t say anything, but turns to Mr. Oldman to question him, to ask if he’s sure about what happened, but Mr. Oldman is now unresponsive. The rescue squad arrives and rushes Mr. Oldman to the hospital, but he dies on the way there without regaining consciousness. About 20 minutes later, as the police are taking statements at the scene, Driver tells the police that he didn’t do anything wrong, that he was traveling normally in his lane of travel, and that Mr. Oldman just suddenly stepped into the side of his truck without any warning, and that’s how he ended up injured at the side of the road.
The Administrator of Mr. Oldman’s Estate later files a civil case against Driver alleging that Driver wrongfully caused Mr. Oldman’s death by driving in a negligent manner. At trial of that action, Mr. Oldman’s (the Dead Man’s) side of the story can come into evidence (through the hearsay testimony of Mr. Oldman’s neighbor), but Driver (the person who survived the pedestrian-truck encounter) most likely will not be able to tell his side of the story to the jury. This comes about through the operation of a Virginia statute (appropriately referred to as Virginia’s Dead Man’s Statute), Virginia Code Section 8.01-397, which provides in two pertinent parts:
[1] In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. [2] In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party. Va. Code § 8.01-397 (bracketed numbers added). See also Va. R. Evid. 2:804(b)(5) (hearsay exception for statements made by person no longer capable of testifying). In this instance, Mr. Oldman (the Dead Man) is the person or party who is “incapable of testifying” at trial regarding what happened at the mailbox that day – because he is dead.
At trial, Driver wants to testify about his version of events. Driver wants to tell the jury: “Here is what actually happened. I saw this elderly man near his mailbox as I was approaching the area. I was driving within the speed limit and carefully. I even beeped my horn to make sure the old guy stayed out of the road. But at the last instant the man suddenly turned towards the mailbox. Without paying any attention he suddenly backed out into the road and into the side of my truck. There was not enough time for me to avoid him.”
Driver’s testimony, if believed, would defeat the Administrator’s claim since it would show that Driver was not at fault and instead Mr. Oldman’s death was caused by his own contributory negligence. But there is no physical evidence and no other eyewitness testimony which corroborates Driver’s version of events.
Driver is the defendant in the lawsuit by Mr. Oldman’s administrator, and is thus an adverse or interested party. Due to the provisions of the first part of the statute, “no judgment or decree shall be rendered in favor of an adverse or interested party [Driver] founded on his uncorroborated testimony.” If there is no eyewitness testimony (other than Driver’s testimony) or physical evidence to corroborate Driver’s testimony about what happened when he drove by Mr. Oldman’s mailbox then, under the first part of the Dead Man’s Statute, Driver must not be allowed to obtain a judgment in his favor based on his uncorroborated description of the incident – that Mr. Oldman just stepped suddenly into the side of his truck, and that he (Driver) did nothing wrong. The uncorroborated testimony by Driver (the survivor of the mailbox encounter) should not be admitted into evidence to be considered by the jury in the case. See Shumate v. Mitchell, 296 Va. 532, 548, 822 S.E.2d 9, 16-17 (2018); and Johnson v. Raviotta, 264 Va. 27, 36, 563 S.E.2d 727 (2002) (“Corroboration for purposes of the dead man’s statute cannot come ‘from the mouth of the witness sought to be corroborated’”) (citing and applying Varner’s Ex’rs v. White, 149 Va. 177, 185, 140 S.E. 128 (1927); and Ratliff v. Jewell, 153 Va. 315, 326, 149 S.E. 409 (1929)).
Under the second part of the Dead Man’s Statute, however, even though Mr. Oldman is no longer around to testify about what happened at the mailbox that day, and even though the out-of-court statements he made to his wife and neighbor about the light blue Toyota truck veering off the road, hitting him and knocking him to the pavement might otherwise be considered to be inadmissible hearsay,1 Mr. Oldman’s neighbor (but maybe not his widow, since she is an “interested” party) should be allowed to testify about what he heard Mr. Oldman say: that the light blue Toyota suddenly veered off the road and knocked him down. It should be noted that the hearsay exception in the Dead Man’s Statute applies to statements made by the Dead Man whether his estate is the plaintiff or the defendant in the lawsuit. See Shumate, 296 Va. at 548, 822 S.E.2d at 16-17 (the circuit court did not err in admitting the testimony of a decedent’s son recounting the defendant decedent’s description of a collision because the Dead Man’s Statute applied, and the decedent’s hearsay statements were admissible into evidence; also, the son had no pecuniary interest in the case).
Thus, under Virginia statutes and the Virginia Rules of Evidence, sometimes a Dead Man can tell tales that will later be admissible into evidence in litigation involving an encounter with a Live Man, but the Live Man will not be able to tell a tale about what happened without other evidence corroborating the survivor’s side of the story. To some, this might seem counterintuitive or unfair, but as the Shumate Court pointed out, that is, in essence, what the Dead Man’s Statute provides. 296 Va. at 548, 822 S.E.2d at 16-17. Regardless of whether “the party asserting the Dead Man’s Rule could bring in a plethora of out of court, unreliable hearsay of what the decedent said to others to bolster unfairly the decedent’s case” – that “is actually an accurate statement of the statute.” Id. The Court also stated: “Regardless of whether the rule is just or even justified, ‘we have long concluded that it is the role of the General Assembly, not the courts, to change a rule of law that has been relied upon by the bench and bar for many years.’ Van Dam v. Gay, 280 Va. 457, 463, 699 S.E.2d 480 (2010). In this case, ‘many years’ is a century.” Id. Several years ago, a proposal was made at Virginia’s Boyd-Graves Conference to “amend” the Dead Man’s Statute. The proponents argued the statute is unfair and is based on an old principle that has no logical support and has been rejected by other states. The opponents of the proposal argued that there clearly was a just and fair reason for the statute, which had stood the test of time for over 100 years. They argued that a person who has negligently caused the death of another person should not be able to avoid responsibility by relying on his own uncorroborated, self-serving version of events since his own wrongful conduct has prevented the other person from disputing that version at trial. See Hereford v. Paytes, 226 Va. 604, 610, 311 S.E.2d 790, 793 (1984) (stating that the salient purpose of Virginia Code Section § 8.01-397 is “to prevent [] an opportunity for the survivor to prevail by relying on his own unsupported credibility, while the opponent, who might alone have contradicted him, is silenced by death”). The opponents also argued that the statutory amendments which were proposed would not merely “amend” the Dead Man’s Statute but would virtually abolish it. The proposal failed to win approval by the Boyd-Graves Conference and the statute has remained largely unchanged.
1“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid. 2:801(c). In this particular scenario, Mr. Oldman’s statements made immediately after the incident (before the dust had settled, so to speak), and while the wings of the Angel of Death were beating about his head (anticipating his own death), could be considered statements that come within exceptions to the rule against hearsay. Therefore, the statement about the blue Toyota truck hitting him might come into evidence even without the hearsay exception contained in the Dead Man’s Statute, i.e., under (1) the exception for res gestae or an excited utterance [Va. R. Evid. 2:803(2)], or (2) the exception for a statement made in anticipation of impending death [Va. R. Evid. 2:804(b)(2)]. Even if one of these exceptions weren’t applicable, though, the hearsay exception built into the Dead Man’s statute (see § 8.01-397; and Va. R. Evid. 2:804(b)(5)) would allow the neighbor to testify about what Mr. Oldman told them about the blue truck hitting him, as long as the evidence is considered relevant. See Shumate, 296 Va. at 546, 822 S.E.2d at 15-16.
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