REPORT TO THE BOYD-GRAVES CONFERENCE
FROM: Committee to Study the Deadman's Statute
The Conference chair appointed a committee composed of Glenn Pulley (chair), Elaine Bredehoft, Robert Calhoun, Frank Hilton, Charles Sickels and Kent Sinclair. The Committee was asked to review the current version of the Virginia "deadman's" statute, which is codified as Code § 8.01-397. That statute CURRENTLY reads:
§ 8.01-397. Corroboration required and evidence receivable when one party incapable of testifying
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. 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. The phrase "from any cause" as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.
The Committee considered numerous recent decisions construing the statute, as well as voluminous background materials, including legislative history materials going back to the late 1800s and other records provided by the Division of Legislative Services. It conducted independent legal research into the law of Virginia, statutory and in case decisions, and the law of a number of other states. National and Virginia law review and treatise decisions were reviewed. The Committee met several times in conference telephone sessions. It had the benefit of prior research by Conference member Bob Calhoun, and work performed on this project by Professor Sinclair and by a law student, Laura A. Williams, under his direction.
Preview. The following report is unanimous in proposing revisions of Code § 8.01-397 to: (1) spell out the fact that the statute does not apply if an interested witness testifies on behalf of the decedent/disabled person; (2) replace the present corroboration requirement with a required assessment of the credibility of all evidence presented (live and hearsay), and (3) clarify that the balnket hearsay exception now in the statute will apply only when the survivor offers testimony about the transactions.
Medieval times - up to the mid-1800s.
As trial by combat gave way to court-based decisions about parties' rights in the late Middle Ages, evidence in the form of sworn testimony by interested parties was forbidden out of fear that an interested witness would necessarily commit perjury. This was true from the 1600s to the early 1800s in Great Britain.
American law prior to 1850 was the same: interested parties were not allowed to testify in their own cases for fear of perjury. In cases involving one deceased or incapacitated party, this meant that the "interested" survivor could not testify at all.
In the mid-1800s reforms in England abolished (by statute) the common law disqualification of interested witnesses.
American jurisdictions started almost immediately to abolish the disqualification of interested witnesses. Virginia first did so in a statute passed in 1866. By an act approved March 2, 1866 (Acts 1865-6, ch. 21, sec. 1, pp. 87-88), the common law disqualification of witnesses for "interest" was abolished.
In the Supreme Court of Virginia's scholarly review of the grand sweep of this history in Epes' Administrator v. Hardaway 135 Va. 80, 115 S.E. 712 (1923), Judge Burks noted that the overall drift has been consistently over time to allow more and more testimony to be heard by the trier of the facts, and to eliminate disqualifications in whatever format they are found.
It will be observed that the act, while radically changing the common law rule, contained many qualifications and exceptions. It was far from perfect, and had to be changed or amended from time to time to meet the hardships of different cases as developed by the decisions of this court. It would be impracticable within reasonable limits to discuss all the cases construing the statute and the consequent legislative changes.... All of them, however, will be found to be in the extension of the competency of witnesses to testifv.
Ld. at 85, 115 S.E. at 714 (emphasis added). The goal of the plenary revisions of the Code with respect to deadman's issues in 1919 was to remove "practically all disqualifications," and permit the courts to hear "all evidence bearing on the question at issue" just as is usual "in the business affairs of life." Id. at 88, 115 S.E. at 715.
In a prophetic summary of the long flow of case law developments, the Supreme Court of Virginia commented in 1923 that "fnlearly all of the difficulties that have arisen in practice have grown out of the exceptions to the rule that interest should not disqualify a witness." Id. at 90, 115 S.E. at 715 (emphasis added). In other words, administering the barriers to testimony had already proven to be problematic in Virginia as early as 1923.
First Key Factor in Allowing Testimony: Cross-Examination
All American jurisdictions concluded in the late 1800s and the early 1900s that the availability of cross-examination by trained attorneys was an important factor in reducing the risks of perjury by the survivor in litigations involving dead or incapacitated persons. Judge Burks referred to the key role of cross-examination in Epes, writing of "the great safeguard of cross-examination."
In the late 1800s and early 1900s most states considered cross-examination a satisfactory safeguard: they simply passed statutes declaring all witnesses with knowledge to be qualified to testify. Some states made exceptions for cases involving decedents or incapacitated persons, which became known as "deadman's" statutes. These statutes were created in about half of the States during the early years of the 20th Century, but they have proven unnecessary and problematic, and most states that created such laws have abolished them decades ago. By the 1950s deadman's statutes were declared "archaic relic[s) of the past."1 Today "deadman's acts" are found in only a handful of jurisdictions.2
Cross-Examination "Plus." In Virginia, the General Assembly evidently concluded in the late 1800s that cross-examination plus the presence of a live witness who can testify about the events on behalf of the dead or incapacitated party was an adequate balance to safeguard against perjurious claims by the survivor. Thus, in the Virginia Codes of 1887 and 1893 provisions were included that confirmed and continued the 1866 abolition of the former incapacity for interested witnesses. However, the abolition of incapacity was accompanied by a sister section dealing with deadman situations. Under the 1887 and 1893 versions, where one party to a transaction was dead or incapacitated, the interested survivor witness could only testifying if. (1) called by the decedent/incapacitated party's side, (2) some interested witness had testified on behalf of the decedent/incapacitated party, or (3) an agent of the dead or incapacitated person was available to testify. The availability of an interested witness to testify on behalf of the side of the decedent or incapacitated person remains -- in case law -- an important exception to the deadman's principles even under the current statute. If such a witness testifies, the ban of the statute is totally inapplicable. Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002), approving the holding of the federal district court in Paul v. Gomez,118 F. Supp. 2d 694, 696 (W.D. Va. 2000). See generally Merchants Supply Co., Inc. v. Ex'rs of the Estate of John Hughes, 139 Va. 212, 216,123 S. E. 355, 356 (1924); Wrenn v. Daniels 200 Va. 419 (1958) (contract dispute).
In the 1919 Virginia Code the Legislature again continued and confirmed the abolition of general disqualification for interested party witnesses, stating again that all witnesses are competent. But an adjacent Code section (the "deadman's" section) contained two provisions: (1) that, in cases involving a survivor and a decedent/incapacitated person, corroboration is required for a judgment based on the survivor's testimony, and (2) if the survivor testifies, out-of-court statements of the decedent/incapacitated person could be received in response. Thus by 1919 the disqualification of the survivor was replaced by a requirement of corroboration coupled with permission for the decedent/disabled person to offer out-of-court statements of the decedent/disabled person to oppose the live testimony of the survivor. Epes, 135 Va. at 90, 115 S.E. 715.
Then, about 35 years ago, the deadman's section of the Code was amended to provide that regardless of whether the survivor testifies, in any case by or against a decedent/incapacitated person, the hearsay out-of-court statements of the decedent/incapacitated person are generally admissible. That provision remains in Code § 8.01-397 today. Thus the right to offer out-of-court statements of the decedent/incapacitated person exists under the present version of the statute from the outset of such a case, and is not dependent upon the survivor testifying. No reason for the creation of this sweeping abolition of hearsay principles is apparent in the Revisors' Notes to the Code, and no Supreme Court case has ever commented on any justification for it.
Lopsided and Problematic Provisions
The present "double whammy." Present Virginia law is lopsided: it imposes upon living party witnesses a stringent (and ill-defined) requirement that testimony be "corroborated" and, on the other side, it gives an open-ended permission for the decedent/disabled person's side to offer out-of-court statements by the decedent/disabled person that do not meet any exception to the hearsay rule. The hearsay can be offered -- under the current version of the law -- whether or not the survivor offers live testimony about the disputed events. So far as the Committee's review of the law of other jurisdictions reveals, this tilting of the tables is more extreme than any other American jurisdiction ever had, and is worse than an anachronism today. No other jurisdiction has such a rule today, and no other jurisdiction ever had a combination of provisions that is as slanted against live testimony as the present Virginia statute.
The "corroboration problem." The 1919 version of the Virginia Code placed lawyers and judges of the Commonwealth in the position of having to assess corroboration for the survivor's testimony, since the incremental relaxation of the medieval limits on the admissibility of party testimony had -- as of 1919 -- reached the point that the General Assembly thought, in essence:
Cross-Examination + some corroboration = it is safe to allow survivor's testimony 3
Corroboration for purposes of the deadman's statute requires testimony or other evidence that tends to support some issue or allegation advanced by the party able to testify which is essential to sustain a judgment in such party's favor. Rice v. Charles, 260 Va. 157, 166, 532 S.E. 2d 318, 323 (2000). Corroboration can come from any source, need not be presented by the plaintiff, and may be by documentary or physical evidence. See Hereford v. Paytes, 226 Va. 604, 608, 311 S.E. 2d 790, 792 (1984). Unofrtunately, neither the statute — nor case law — has been able to define the requisite corroboration, other than on a case-by-case basis. The requirement to search the record for corroboration is continued in the present version of Code § 8.01-397. The Supreme Court has often sought to provide generic guidance about the role that corroboration plays,4 while continuing to recognize that in any individual case the facts will lead to an ad hoc determination whether the requirement is met.
What has happened as a result in an inordinate amount of appellate resources being expended reviewing ad hoc corroboration issues, without any dependable guidance to lawyers, parties and the lower courts because the nature of corroboration inevitably is seen as being different from case to case. Examples of the inconsistent and expressly "ad hoc" or "case-by-case" rulings that have been made are set forth in the Appendix to this report to illustrate the amount of appellate court energies the problem of corroboration has consumed, and the necessarily variable outcomes a case-by-case doctrine produces. See Hereford v. Paytes, 226 Va. at 608, 311 S.E. 2d at 792 ("it is impossible to formulate a fixed rule as to the corroboration necessary in every situation because each case must be decided on its particular facts").
The expenditure of judicial resources has been enormous. Since the 1920s alone, there have been over 80 (eighty!!) decisions by the Supreme Court construing aspects of the corroboration requirement. The annexed Appendix to this Report is an attempted typology of some of the more prominent of these cases. Suffice it to say that in some two-car traffic accident cases the survivor can testify, and in others he/she cannot; in some doctor-patient circumstances the doctor can testify to what transpired, and in others he/she cannot; in some contract or services claims against an estate the survivor can testify, in others he/she cannot.
Recent decisions have allowed some testimony by the survivor and found other testimony impermissible, and a 2003 decision suggests that testimony by an adverse party about her version of the events may be "corroboration" in some contexts. Compare Johnson v. Raviotta, 264 Va. 27, 34-35, 563 S.E. 2d 727, 732-33 (2002), with Williams v. Condit, 265 Va. 49, 574 S.E. 2d 241 (2003) (four-to-three decision).
Heightened corroboration and heightened uncertainty. In addition to the case-by-case feature of current law, requiring parties to guess and requiring the Supreme Court frequently to determine the merits of a deadman's issue on specific or unique facts, there is the problem of "heightened corroboration." The Court has held that owing to the confidential or fiduciary relationship between some professionals and the decedent/incapacitated person, allowing testimony by the survivor requires especially powerful corroboration. This standard is not explainable other than by stating that it must be "more" than is normally required to corroborate the living witness's testimony. See, e.g., Diehl v. Butts, 255 Va. 482, 499 S.E. 2d 833 (1998). It applies to some client-professional relationships and some family situations as well, but not parent-child relationships, unless one family member provides financial advice or handles the affairs of another, in which case the higher standard does apply.5 Some "principal-agent" relationships trigger the application of the heightened requirement.6 Confusingly, some reported cases say only that a higher standard "may" be applied, without specifying whether and when application of the higher burden would be appropriate or necessary.7
This "higher" standard is not "clear and convincing proof" but it is more than "ordinary" corroboration. Since the circumstances that would amount to "ordinary" corroboration are uncertain and vary from case to case, the standards and outcomes in cases involving doctors, lawyers, and other professionals, fiduciaries and family members to whom the "extra" or "higher degree" corroboration requirement applies are even less objectively defined or predictable. Many reported decisions appear to simply announce that the required "higher degree" of corroboration is absent without providing guidance on the forms of proof required or the measures for satisfying the standard. 8
Overall workability of the corroboration requirement. Evidence experts and commentators for many decades have argued that a corroboration requirement "has serious defects" in making an utterly unwarranted "assumption that uncorroborated claims are of such doubtful validity that all must be rejected."9 Moreover, no court in the Nation has succeeded in defining the application of a corroboration requirement in a fashion that helps lower courts and the practicing bar.
As a major Law Review study of deadman's statutes concluded a number of years ago, one principal "objection to the corroboration requirement is the difficulty in administering such a rule. How can corroboration be defined in a way so that the test can be applied in individual cases without resulting in substantial litigation? [T]he requirement is unsound, [and] the courts should not be burdened with its administration." 10 Wigmore declared statutes with this requirement "misguided." 11
In 1953 a Virginia Law Review article proposed that the corroboration aspect of the statute be abolished in order to "insure to the survivor of a transactions, or any other interested or adverse witness, an equal status with that of the decedent or any other person incapable of testifying." i.e., the proposal was to abolish the corroboration requirement while retaining the hearsay exception in favor of the decedent/incapacitated party's side. Note, Corroboration in Virginia under Section 8-286, 39 Va. L. Rev. 395, 404 (1953).
As of 1953, only two other states had the corroboration requirement. While several states maintained special disqualifications for certain cases involving decedents, all states but Virginia and two others had abolished the interested-party disqualification of the 1800s without imposing the special corroboration burden on survivors in those states. As of 1953, Virginia was in a minority of three states.
Since 1953 both of the other "corroboration-requiring" states -- New Mexico and Oregon -- have ABOLISHED the corroboration requirement. From about 1980 onward, both of these states have had "Rule 601 -style" competency rules, which are provisions stating generally that any witness with knowledge is competent. Thus for over 20 years Virginia appears to have been alone in continuing to require corroboration from a live person about a transaction with a decedent. Academic 12 and judicial criticism of restrictions on the survivor's testimony are long-standing,13 and Professor McCormick, author of the leading one-volume treatise on Evidence, reports that "commentators agree that ... the expedient of refusing altogether to listen to the survivor is, in the words of Bentham, a 'blind and brainless' technique. In seeking to avoid injustice to one side, the statute-makers have ignored the equal possibility of injustice to the other."14 One nationwide academic study found over six fundamental flaws in statutes excluding testimony from the surviving witness, 15 concluding that "the vagaries and inconsistencies pointed out are sufficient to demonstrate that the thousands and thousands of decided cases have built here one of the most complex and hazardous fields of the law of evidence." 16
Waste of Appellate Resources. Other jurisdictions have also experienced the phenomenon that the deadman's statute generates an ocean of litigation which provides very little guidance to the bar or the trial courts. 17 An experienced trial lawyer in another state indicted the statute in his jurisdiction barring testimony from the survivor in certain circumstances on grounds of unfairness and on the ground that continued efforts to construe the exceptions lead to a tangled mass of appellate decisions:
The time consumed in applying and interpreting the statute is out of all proportion to the doubtful good it does. A statute so difficult of definite limitation should be one of undoubted desirability before it is justified. The statute cannot meet this test. It has so befogged our decisions that the Courts and the bar do not yet know the limitations of the rule. 18
The Blunderbuss Hearsay Exception. The Committee has not located a single other state that maintains the additional feature of the present Virginia statute, a blunderbuss exception for all manner of written and oral hearsay from the decedent/disabled persows side of the case. Under the present Code provision, ANY hearsay statement of the decedent will be received in evidence, whether it is reliable or not, and whether the decedent had any personal knowledge of the subject or not.
McCormick's treatise reports that a very small number ofjurisdictions adopted a "balancing" or "rebuttal" hearsay provision by the late 1940s, based on an ABA report in 1938 that suggested it. 19 The idea was that IF the survivor gave live oral testimony, the opportunity for the decedent/disabled person's side to offer prior out-of-court statements provided some opportunity to respond to the live witness. The proposal endorsed by the ABA report, however, suggested that only the decedent's statements "made in good faith and upon personal knowledge" be received where the live witness has testified and the decedent/incapacitated person cannot otherwise respond. Virginia law is much less balanced than the ABA proposal of 1938: it allows use of any and all hearsay, regardless of circumstances or whether the declarant had personal knowledge of the topics opined upon, and it applies whether or not the survivor offers live testimony about the disputed events or transactions. It appears, therefore, that about 50 years ago the General Assembly enacted the hearsay portions of the 1938 ABA report, but omitted the protections that the authors of that very proposal recommended!
Worse, in connection with the recodification of the procedure code in 1977, portions of the language were dropped, such that the hearsay exemption is available to the decedent/disabled person's side, whether or not the surviving witness testifies.
The Committee's review of other jurisdictions disclosed no other state with the unrestricted freedom to offer hearsay currently found in the Virginia deadman's statute. 20
Proper Balance of Protections: the Advent of Discovery
Mostjurisdictions abandoned concerns over live witness testimony by parties 100 years ago, relying on cross-examination as the protection against perjurious testimony by a party.
In the last 50 years, however, there has been one other major development in the litigation of cases that affects the balance of concerns when an interested witness gives live testimony in our courts: the availability of pretrial discovery.
Discovery had not been invented in 1919 when the Virginia statute was cast in essentially its current form, and thus could not have been considered in assessing the protections needed in the courts of the Commonwealth to deal with the risk of perjury by a party.
Today, however, Virginia provides the right to conduct depositions, propound interrogatories, engage in the discovery and inspection of property and documents, utilize requests for admissions and arrange for the physical examinations of parties by independent examiners. The creation and implementation of these tools are among the most important developments in civil litigation in the last 200 years. 21 They are surely among the most important features of modern litigation, and they were totally absent when the Virginia deadman statute was created in essentially its present form in 1919.
Today, therefore, the equation is:
Discovery + cross-examination by skilled counsel = safeguards against perjury
In 1919, "trial by surprise" was the norm: litigants did not pre-disclose their expected testimony, and even a good lawyer would need to scramble during cross- examination of a witness who might make up dramatic proof at the last moment. Today discovery and pretrial practice in Virginia ward off these risks to a great extent, and both common law and statutory provisions for impeachment, including use of prior inconsistent statements, bolster the ability of counsel to rein in a witness who attempts to prevaricate.
Thus the present Boyd-Graves Conference Committee came to the view that the need to restrict the availability of live testimony is far less today than it might have been in 1866, or even 1919. The loss of live testimony by an interested witness, and the enforcement of artificial and ill-defined "corroboration" requirements (regular, and "heightened") is no longer necessary. Nor does a blanket hearsay exception making admissible anything and everything the decedent may have uttered, regardless of the circumstances, seem fair or appropriate.
Today the trier of fact can - and should - assess the credibility of the survivor's self-serving live testimony as an interested party in the litigation. The precipitous remedy of completely foreclosing a claim by a survivor is no longer necessary to assure careful and fair assessment of claims in cases involving decedents or incapacitated person.
Most members of the Committee felt that total abolition of the deadman's statute would not be a dangerous or unwarranted step. However, the Committee considered at some length whether there could conceivably be a "pro-plaintiff" or "pro-defendant" aspect of changing or eliminating the deadman's statute for any possible subject area of the Virginia litigation landscape. We did not think there was a serious risk in any subject matter. Nonetheless, it was recognized that allowing more live-witness testimony under a revamped statute could slightly increase the number of oral contract/services claims that would be viable against an estate, and may allow some doctors to testify as to events during treatment that would not be permitted presently absent "high level" corroboration.
Proposal. To make sure that both sides have fair protections, the Committee resolved to recommend to the Conference that the statute be retained insofar as it allows the decedent/incapacitated party's side to offer proof that would otherwise be excludable as hearsay in those cases where the deadman's act applies (basically: where no interested witness has testified for the decedent or incapacitated person's side) in those instances where the living witness has been allowed to testify about the disputed events or transactions. In that core situation, the mouth of the decedent/incapacitated person has been silenced and the survivor has been able to give his/her version of the events.
The Committee proposal adds one further provision as protection for the parties: an express provision requiring that the trier of fact consider the interests and motives of the parties in weighing the evidence received. This will protect the decedent/incapacitated party's side by encouraging the judge or jury to consider the motivation of the live witness in testifying to what happened. It will also protect the surviving party by encouraging the jury to consider the motives and circumstances of the hearsay statements from the decedent/incapacitated person in those cases where the provision allowing out-of-court statements is triggered. The changes the Committee proposes would therefore accomplish three important improvements:
1. Interested Witness Rule to be Codified (Again). The Committee's proposed revisions would codify the law of the last 100 years in Virginia that the deadman's statute does not apply where an interested witness testifies for the decedent/incapacitated party. A clear statement of this provision was in the Virginia Code as early as 1887 and, while it is not expressly stated in the current version of the statute, this black-letter rule has been embodied in numerous decisions from the Supreme Court of Virginia over several decades and repeatedly emphasized in the last 18 months. Having this provision back in the statute will assist both lawyers and judges in knowing when provisions of the revised statute are applicable.
2. Corroboration Requirement Replaced by Credibility Assessment. The proposed revision would eliminate the requirement of corroboration in A cases, and replace it with a requirement that the trier of fact be directed to assess the motivation and interest of witnesses and hearsay declarants whose evidence is received in cases where one participant is incapable of live testimony.
3. Hearsay Exception to Apply Only After Live Testimony by the Adversary. Finally, the proposed revision restates the hearsay exception portion of the statute so that it will provide (as was the case in the 1919 version of the Code) that it is the testimony of a survivor about the disputed events or transactions that triggers the option of the decedent/disabled person's side to offer hearsay in response. This is coupled with the requirement that in a jury case the judge instruct the jury to consider the interests and motivations of the persons whose evidence has been received. Under this proposed revision, if no survivor testifies, the special hearsay provision of the deadman's statute is not applicable (and thus the decedent/disabled person's statements can be offered if they meet one of the 25 recognized hearsay exceptions, but the blanket permission to use hearsay under the deadman's statute would not apply).
All of these changes will improve the quality of fact-finding in Virginia courts by increasing the amount of testimony from living witnesses with knowledge that may be used by judges and juries in deciding cases, while balancing the credibility concerns that arise when competing live testimony and hearsay declarations are received.
These changes also reflect the wisdom of Judge Burks' observation in the 1927 Epes decision that, as other protections for the integrity of the trial process are evolved, restrictions on the use of testimony from live witnesses with knowledge should be eliminated. 135 Va. at 84, 115 S.E. at 714.
TEXT OF THE STATURE SHOWING PROPOSED REVISIONS, WITH FOOTNOTES EXPLAINING VARIOUS PROVISIONS 22
§ 8.01-397. Corroboration required and Credibility
assessment and evidence receivable when one party is
incapable of testifying.
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. :
If an interested witness 23 has testified on behalf of the person incapable of testifying about disputed events or transactions between the person incapable of testifying and another party to the litigation, or an agent of the person incapable of testifying has given evidence about such disputed events or transactions 24, (i) no witness with knowledge shall be disqualified from testifying about the disputed events or transactions solely because one participant therein is incapable of testifying 25, and (ii) the credibility of all witnesses in the case, including their interests and motivations in testifying, shall be considered by the trier of fact 26, and (iii) subdivision B of this section shall be inapplicable. 27
B. If no interested witness or agent has testified
on behalf of the person incapable of testifying about disputed events or transactions
between the person incapable of testifying and another party to the litigation,
and if a party adverse to the person incapable of testifying has given testimony,
not elicited by the representative of the party incapable of testifying 28,
about disputed events or transactions between
such adverse partly and the person incapable of testifying, (i) all
entries, memoranda, and declarations by the party so incapable of testifying
made while he or she was capable, relevant
to the matter in issue, may be received as evidence,
29 in all proceedings including without limitation
those to which a person under a disability is a party. and (ii)
the credibility of all witnesses and the weight to be given to all evidence
heard in the case shall be considered by the trier of fact in light of the interests
and motivations of the persons whose evidence is received.
C. The phrase "from any cause" as used in this section shall not include situations in which the party who is incapable of testifying has been rendered himself unable to testify by an intentional self-inflicted injury. 30
D. In all cases to which subdivision B of this section applies that are tried to a jury, the court shall expressly instruct the jury that in decide the case and assessing the weight of the proof, it shall consider the interests and motivations of the persons whose evidence has been received in the case.
NOTES
1. Mason Ladd, "Witnesses," 10 Rutgers
L. Rev. 523,526 (1956).
2. Some states still maintain a form of deadman statute (without
a corroboration requirement), but the raw numbers and the proportion of states
adhering to this form of disqualification of live witnesses declined dramatically
during the 20th century, approximately as follows:
1850 - All states and territories (the English model)
1919 - one-half of the states
1953 - one-third of the states
1980 - one-quarter of the states
2003 - fewer than a dozen states
3. This was the understanding of the General
Assembly's calculus given by Judge Burks in Epes, 135 Va. at 90,115 S.E. at
715.
4. See, e.g., Rice v. Charles, 260 Va.
157, 532 S.E. 2d 318 (2000), where the Court said:
[T]he critical inquiry is whether his testimony presented an essential issue that, if not corroborated, would defeat his contributory negligence defense. See Hereford v. Paytes, 226 Va. 604, 608, 311 S.E. 2d 790, 792 (1984). ... [W]e have stated some general principles that are pertinent here. "It is not necessary that the corroborative evidence should of itself be sufficient to support a verdict, for then there would be no need for the adverse or interested party's testimony to be corroborated." Brooks, Adm'r v. Worthington, 206 Va. 352, 357, 143 S.E. 2d 841, 845 (1965) (citing Burton's Ex'er v. Manson, 142 Va. 500, 509, 129 S.E. 356, 359 (1925); Davies v. Silvey, Adm'x, 148 Va. 132, 137, 138 S.E. 513, 514 (1927); Clay v. Clay, 196 Va. 997, 1002 86 S.E. 2d 812, 815 (1955)). "Corroborating evidence tends to confirm and strengthen the testimony of the witness[,]" and it may come from other witnesses as well as from circumstantial evidence. Hereford, 226 Va. at 608, 311 S.E. 2d at 792. It is not essential that a survivor's testimony be corroborated on all material points. Id.; Brooks, 206 Va. at 357, 143 S.E. 2d at 845.
The corroboration, to be sufficient under the statute, however, must at least tend, "in some degree, of its own strength and independently, to support some essential allegation or issue raised by the pleadings [and] testified to by the [surviving] witness... which allegation or issue, if unsupported, would be fatal to the case." Hereford, 226 Va. at 608, 311 S.E. 2d at 792 (quoting Burton's Ex'r, 142 Va. at 508, 129 S.E. at 359). Accord Diehl v. Butts, 255 Va. 482, 489, 499 S.E. 2d 833, 838 (1998).
5. Compare Nuckols v. Nuckols, 228 Va. 25,
36-37, 320 S.E. 2d 734,740 (1984); Carter v. Carter, 223 Va. 505, 509, 291 S.E.
2d 218, 221 (1982) with Jackson v. Seymour, 193 Va. 735, 740-41, 71 S.E. 2d
181, 184-85 (1952).
6. Creasy v. Henderson, 210 Va. 744,
749-50, 173 S.E. 2d 823, 828 (1970).
7. In a case involving parties between
whom a confidential relationship existed at the time of the transaction relied
on, a higher degree of corroboration may be required than in other transactions.
Everton v. Askew, 199 Va. 778, 782, 102 S.E. 2d 156, 158 (1958) (emphasis added).
8. See Everton v. Askew, 199 Va. 778,
782, 102 S.E. 2d 156, 158 (1958) ; Seaboard Citizens Nat'l Bank of Norfolk v.
Revere, 209 Va. 684, 690, 166 S.E. 2d 258, 263 (1969).
9. Roy Ray, DEAD MAN'S STATUTES, 24 Ohio
St. Law Journal 89, 111 (1963).
10. Roy Ray, DEAD MAN'S STATUTES, 24
Ohio St. Law Journal 89, 112 (1963).
11. 7 Wigmore on Evidence § 2065. Dean Wigmore, perhaps
the most famous evidence scholar in American history, denounced statutes that
preclude use of a survivor's testimony: "As a matter of policy, this survival
of the now discarded interest disqualification is deplorable in every respect;
for it is based upon a fallacious and exploded principle, it leads to as much
or more false decision than it prevents, and it encumbers the profession with
a profuse mass of barren quibbles over the interpretation of mere words."
12. Professor Morgan, one of the great evidence scholars of
the 20th Century and Reporter for the Model Code of Evidence, spoke of the shortcomings
of the statutes in these terms:
All are based upon the delusion that perjury can be prevented by making interested persons incompetent or by excluding certain classes of testimony. They persist in spite of experience which demonstrates that they defeat the honest litigant and rarely, if ever, prevent the dishonest from introducing the desired evidence; if the dishonest party is prevented from committing perjury, he is not prevented from suboming it. If the statutes protect the estates of the dead from false claims, they damage the estates of the living to a much greater extent. And frequently their application prevents proof of a valid claim by the representative of decedent's estate.
Edmund Morgan, Some Problems of Proof Under the Anglo-American
System of Litigation, 187 (1956).
13. See, e.g., St. John v. Lofland, 64 N.W. 930 (N.D. 1895),
in which a justice of the North Dakota Supreme Court concluded:
Statutes which exclude testimony on this ground are of doubtful expediency. There are more honest claims defeated by them by destroying the evidence to prove such claims than there would be fictitious claims established if all such enactments were swept away, and all persons rendered competent witnesses. To assume that in that event many false claims would be established by perjury is to place an extremely low estimate on human nature, and a very high estimate on human ingenuity and adroitness. He who possesses no evidence to prove his case save that which such a statute declares incompetent is remediless. But those against whom a dishonest demand is made are not left utterly unprotected because death has sealed the lips of the only person who can contradict the survivor, who supports his claim with his oath. In the legal armory, there is a weapon whose repeated thrusts he will find is difficult, and in many cases impossible, to parry if his testimony is a tissue of falsehoods - the sword of cross-examinations;
14. McCormick EVIDENCE § 65.
15. Roy Ray, DEAD MAN'S STATUTES, 24 Ohio St. Law Journal
89,108 (1963):
(1) The statutes are based upon the fallacy that the number of dishonest persons
is greater than the number of honest ones; and that self-interest makes it probable
that people will commit perjury.
(2) The statutes themselves cause injustice by preventing proof of honest claims
and defenses. In seeking to avoid the possibility of injustice to one side,
they work a certain injustice to the other. "It is difficult to understand
why all the concern is for the possibility of unfounded claims against the estate.
Why is there no concern for loss by the survivor who finds himself unable to
prove his valid claim against decedent's estate? Surely a litigant should not
be deprived of his claim merely because his adversary dies. It cannot be more
important to save dead men's estates from false claims than it is to save living
men's estates from loss by lack of proof."
(3) The statutes fail to accomplish their purported purpose since they suppress
only a small part of the opportunities for perjured testimony. They block the
testimony of the witness only as to certain subjects, leaving him free to testify
falsely as to other matters if he sees fit to do so. Furthermore, a witness
who will not stick at perjury will not hesitate to suborn perjury by getting
a third person to testify as to those matters as to which his own testimony
is barred.
(4) The statutes impede the search for truth. The real hazard in shaping any
exclusionary rule is that the jury cannot be expected to make sensible findings
when it is deprived of substantial parts of available evidence bearing on the
issue in dispute. The great danger thus ties in the suppression of truth.
(5) The statutes underestimate the efficacy of cross-examination in exposing
falsehood, and the abilities of the judge and jury to separate the false from
the true. These safeguards have proved adequate in other situations involving
the testimony of parties and interested persons. Why not here?
(6) The statutes burden the parties with uncertainties and appeals. For a hundred
years or more, our courts have been struggling with the interpretation of these
statutes. The result is a labyrinth of decisions which have often brought confusion
rather than clarity. The statutes continue to mystify able judges and lawyers
in endless complexities of interpretation and application.
16. Id.
17. At a time when the Texas statute
was similar to the Virginia Code provision, a prominent trial judge in that
state said: "A legal beginner, as well as a veteran, knows well that, at
its best, the Dead Man's Statute is full of snares, traps, and pitfalls, and
that we have a rule by a wilderness of cases as well as a rule by an uncertain
statute. Stout, "Should the Dead Man's Statute Apply to Automobile Collisions?,"
38 Texas L. Rev. 14, 23 (1959).
18. Cheek, "Testimony
as to Transactions with Decedents," 5 Texas L. Rev. 149, 172 (1927).
19. See 63 A.B.A.R. 597 (1938).
20. A law review article in 1963 reported
that only two states had such an unrestricted charter for offering statements
of a decedent, Massachusetts and Rhode Island. Roy Ray, DEAD MAN'S STATUTES,
24 Ohio St. Law Journal 89, 112-13 (1963). Neither of those two states still
has the cited provisions.
21. See Nathan Glazer, PRETRIAL DISCOVERY
AND THE ADVERSARY SYSTEM (1963).
22. Stricken material is shown lined-through and new material
is green in this HTML version.
23. The Code does not — at present
— define "interested witness" and this proposed revision does
not attempt to do so. The intention of the present revision is to clarify that
the statute is not applicable if an interested witness testifies for the decedent/disabled
person, and to make no change in the existing body of law defining the forms
of pecuniary interest that render a witness an "interested witness"
for purposes of the deadman's section.
24. The fact that an agent of the decedent/incapacitated
party can be the provider of interested testimony was first recognized by the
General Assembly in the deadman's act provisions over 100 years ago.
25. This provision implements longstanding
Virginia law that testimony for the decedent/disabled person by an interested
witness ends the applicability of the deadman's act. See Johnson v. Raviotta,
264 Va. 27, 563 S.E. 2d 727 (2002). See generally Merchants Supply Co., Inc.
v. Ex'ers of the Estate of John Hughes, 139 Va. 212, 216, 123 S.E. 355, 356
(1924); Wrenn v. Daniels, 200 Va. 419 (1958) (contract dispute).
26. The Committee felt that directing
the attention of the trial judge to the credibility issue in cases where conflicting
testimony of party and interested witnesses was presented was natural and helpful.
27. Clause (iii) is included to make
it clear that the blanket hearsay exception does not apply to support admission
of the decedent/disabled person's statements unless there has been oral testimony
by the opposing survivor. Other hearsay exceptions, recognized in the Virginia
law of evidence, could be used to offer the decedent/disabled person's prior
statements, and if the normal hearsay exception requirements are met the statements
could be received on that basis.
28. This phrase implements a well-documented
exception to the application of the statute that applies where an adverse party
is called by the representative of the incapacitated party and testifies regarding
the facts in dispute and that testimony is uncontradicted
and not inherently improbable. Brown v. Metz, 240 Va. 127, 131-32, 393 S.E.2d
402, 404 (1990); Balderson v. Robertson, 203 Va. 484, 488, 125 S.E.2d 180, 184
(1962).
29. This provision makes the blanket hearsay exception for
statements of a decedent/disabled person applicable only where there has been
oral testimony by the adverse survivor.
30. This provision has been in the deadman section since 1988,
and its basic effect is to make the statute inapplicable to cases of suicide.
The effect of this provision is that the representatives of decedents who died
by suicide do not have the right to demand special corroboration from the survivor,
and do not have the right to offer hearsay without meeting one of the recognized
hearsay exceptions. The Committee discussed this provision, and decided that
the moral judgment of the General Assembly, along with concerns about the unfairness
to the survivor of being placed at an evidentiary disadvantage due to another
person's suicide, was not obviously wrong. Moreover, this provision has not
presented the management problems that the general corroboration and hearsay
provisions of the present statute cause. Nor is there any ambiguity about the
applicable rule in suicide cases under this provision. The general section,
Code § 8.01-396, makes all witnesses competent, and under this suicide
provision the deadman section does not apply, so the party opposing the decedent
would be competent to testify. In suicide cases, the representative of the decedent
does not have any special hearsay exceptions (as provided when -397 applies)
either. However, that situation is not inherently unfair to the decedent's side.
There are about 25 Evidence law exceptions to the hearsay rule that could be
used by the decedent's side to offer prior statements. Thus if the prior statements
of the decedent are reliable enough to fit one of the regular hearsay exceptions,
they will be admissible. In the absence of problems in Virginia practice in
applying the suicide provision, the Committee resolved unanimously to refrain
from proposing that this provision be substantively changed. Only a gender-neutralizing
word change is proposed.
APPENDIX
NOTES ON THE DIVERSITY OF
CASE-BY-CASE CORROBORATION DECISIONS
under the Virginia Deadman's Statute
Example cases prior to 1950 decided under Code §6209 (originally written in 1919), from 1950-1976 under Code § 8-286, and from 1977 to present under Code § & 01-397.
Traffic Accident Cases
• Collisions between two parties after which one party is deceased or incompetent, and for which there exist no other living witnesses. Survivor has been precluded from testifying in the following cases due to LACK OF CORROBORATION:
• Kimberlin v. PM Transport, 254 Va. 261 (2002) (evidence of habit must be sufficiently numerous and regular in order to qualify as corroboration; testimony alone as to habit is not sufficient).
• Rice v. Charles, 260 Va. 157 (2000) (recorded blood alcohol level and testimony of other witnesses that decedent saw survivor drinking beer was not sufficient to corroborate survivor's testimony that decedent appeared drunk and thus was contributorily negligent in her own death).
• Hereford v. Paytes, 226 Va. 604 (1984) (credibility of surviving witness alone was not sufficient to corroborate the testimony).
• Survivor has been allowed to testify in the following cases due to CORROBORATION:
• Williams v. Condit, 265 Va. 49 (2003) (defendant's interested spouse's testimony, which was offered after plaintiffs evidence).
• Penn v. Manns, 221 Va. 88 (1980) (medical evidence and attendant circumstances show that complications from gun shot wound were likely both cause of car accident and cause of death of wounded passenger).
• Whitmer v. Marcum, 214 Va. 64 (1973) (skid marks observed by state trooper corroborate survivor's testimony as to circumstances of accident).
• CORROBORATION NOT NECESSARY in these car accident cases:
• Statute deemed inapplicable. Sturman v. Johnson, 209 Va. 227 (1968) (defendant's amnesia did not render him incompetent), John Doe v. Faulkner, 293 Va. 522 (1962) (hit and run driver is unavailable, not incapable).
• Gray v. Graham, 231 Va. I (I 986) (statements of decedent may be received as evidence in any action by or against the estate, even if not offered by the estate).
• Carter v. Nelms, 204 Va. 338 (1963) (plaintiffs testimony was later stricken, so it did not require corroboration).
• Hoge v. Anderson, 200 Va. 364 (1958) (when corroborated testimony offered by surviving party, decedent's statements regarding those issues made while capable may be received as evidence).
Medical Malpractice Cases
• Doctor's statements as a matter of law have been ruled NOT CORROBORATED in the following cases:
• Johnson v. Raviotta, 264 Va. 27 (2002) (nurse's notes indicating "units of care," but not recording vital signs, not sufficient to corroborate either doctor's testimony that he instructed nurse to perform checks of vital signs every half hour or hour, or nurse's testimony that she did check decedent's vital signs; doctor's statement as to usual habits during physical examinations not sufficient to corroborate his testimony that he checked decedent's blood pressure twice at the examination prior to her hospitalization, that her blood pressure had dropped, and that this drop meant that he could not have diagnosed at that time the condition which killed the patient).
• Diehl v. Butts, 255 Va. 482 (1998) (testimony of neighbor and brother that decedent or his wife related to them that doctor had told decedent not to work was not sufficient to corroborate doctor's testimony as to the same given higher degree of corroboration required in confidential relationships).
• Taylor v. Mobil Corp., 248 Va. 101 (1994) (nurse's statement that decedent did not complain of chest pain during stress test does not corroborate as a matter of law doctor's statement that decedent did not complain to him of chest pain either, given her possible bias and conflicting evidence from the stress test).
Gift Cases
• Corroboration NOT ESTABLISHED for oral promise to make a gift when testimony of others was not sufficiently detailed. Vaughn v. Shank, 248 Va. 224 (1994), Grace v. Virginia Trust Co., 150 Va. 56 (1928) (possession of key to lock box in addition to vague testimony also insufficient to corroborate gift of bond in box), Nicholson v. Shockey, 192 Va. 270 (1951)(signature of alleged donor on form account agreement did not corroborate gift of joint accounts to son).
• Corroboration was ESTABLISHED as to gift of bond by both grantees' possession of bbond and testimony of others as to close relationship between grantor and grantees and to grantees' long service to grantor. Shenandoah Valley Nat'l Bank v. Lineburg, 179 Va. 734 (1942).
Deed Cases
• Corroboration deemed NOT SUFFICIENT:
• Recitals in written deed determine type of interest granted; oral testimony alone cannot alter these when grantor or grantee deceased. Muth v. Gamble, 216 Va. 436 (1975), Roane v. Roane, 193 Va. 18 (1951), Crump v. Gilliam, 190 Va. 935 (1950).
• Corroboration SUFFICIENT:
• Deed including acknowledgment of conditions or intended possessor. Hackett v. Emmett, 215 Va. 726 (1975) (despite the fact that deed was not recorded, decedent's signature on copy of deed granting remainder interest to recipient and delivery to recipient of original through the mail sufficient), Grimes v. People's Nat'l Bank of Pulaski, 191 Va. 505 (1950) (text of deed and surrounding circumstances corroborate survivor's
Will Cases
• Testimony was NOT CORROBORATED as to changes in a will when corresponding circumstantial evidence was ambiguos or nonexistent. Clay v. Clay, 196 Va. 997 (1955), Truslow v. Ball, 166 Va. 608 (1936).
• Testimony of non-interested parties was SUFFICIENT TO CORROBORATE changes to a will, or existence of extra-testatory parol contracts. Everton v. Askew, 199 Va. 778 (1958), Clark v. Atkins, 188 Va. 668 (1949), Simpson v. Scott, 189 Va. 392 (1949), McNelis v. Colonial-American Nat'l Bank, 163 Va. 284 (1934) (testimony of others plus possession of property).
Contract Disputes
• NO CORROBORATION was established in the following circumstances:
• Written evidence supporting general concepts at issue did not corroborate specific terms of contract in dispute. Wiltshire v. Pollard, 220 Va. 678 (1980) (memoranda), Seabord Citizens Nat'l Bank v. Revere, 209 Va. 684 (1969) (account books), Trevillian v. Bullock, 185 Va. 958 (1947) (evidence of other debts not at issue), Noland Co., Inc. v. Wagner, 153 Va. 254 (1929) (receipts including information about other projects as well), Ratliff v. Jewell, 153 Va. 315 (1929) (account book).
• When testimony offered as corroboration was too vague to establish specifics, it was not sufficient. Taylor v. Hopkins, 196 Va. 571 (1954), Kurtz v. Dickson, 194 Va. 957 (1953), Ingles v. Greear, 181 Va. 838 (1943), White v. Pacific Mutual Life Ins. Co, 150 Va. 849 (1928).
• Testimony of other witnesses was not sufficiently corroborative when named party's testimony itself is uneven and contradictory. Burton's Ex'er v. Manson, 142 Va. 500 (1925).
• CORROBORATION was established in the following cases:
• Testimony of other, non-interested parties. Brooks v. Worthington, 206 Va. 352 (1965), Rorer v. Taylor, 182 Va. 49 (1943) Cannon v. Cannon, 1158 Va. 12 (1932) (contract for care also corroborated by plaintiffs' taking defendant's decedent into home), Timberlake's Administrator v. Pugh, 158 Va. 397 (1932) (circumstances and payment of property taxes also corroborated contract for property in return for care).
• Written documentation or instruments. Morris v. United Virginia Bank, 237 Va. 331 (1989) (document signed by decedent in presence of non-interested witnesses), Batleman v. Rubin, 199 Va. 156 (1957) (small consideration paid by wife in return for antenuptial agreement), Bickers v. Pinnell, 199 Va. 444 (1957) (letter, notations on cancelled checks, and testimony to others), Leckie v. Lynchburg Trust and Savings Bank, 191 Va. 360 (1950) (account statement and testimony from uninterested parties), Southern Materials Co. v. Marks, 196 Va. 295 (invoice which laid out standard terms for contracts), Purcell v. Purcell, 188 Va. 91 (1948) (letter and statements to others), Kirkorian v. Dailey, 171 Va. 16 (1938) (record of sales and rent charges, contract for lease), Southwest Motor Co. v. Kendrick, 157 Va. 251 (1931) (reduction of rent and supplemental lease corroborate testimony of tenant as to promise of landlord to remedy poor condition of leased property), Epes' Administrator v. Hardaway, 135 Va. 80 (1923) (written instrument and status of son as mother's official agent).
• INTERESTED PARTIES may not provide corroboration in contract disputes.
• Third party is still deemed interested if his sale of stock or other assets in a company which is a named party in the case at issue was for the sole reason of enabling that third party to introduce testimony without corroboration as an uninterested individual. Atlantic Coast Realty Co. v. Robertson's Ex'er, 135 Va. 247 (1923).
• Individual with similar claims who has not joined as a party in present action is not "interested" and may corroborate party's testimony. Arwood v. Hill's Administrator, 135 Va. 235 (1923).
• EXPERT WITNESS CAN CORROBORATE statement of a party who hired him, if an adverse party testifies first. Haynes v. Glenn, 197 Va. 746 (1956) (expert testimony to value of items stolen which party had contracted with other party to keep safe).
Loans
Corroboration was ESTABLISHED in:
• Morrison v. Morrison, 174 Va. 58 (1939) (cancelled checks corroborated existence of a loan, testimony established existence of will directing debts to be paid).
• Davies v. Lucy, 148 Va. 132 (1927) (evidence of cancelled checks for repayment of another obligation corroborated non-payment of the contested loan).
Other Cases
Corroboration was NOT established in:
• Gillespie v. Somers, 177 Va. 231 (1941) (letters contradicted the survivor's testimony).
• Heath v. Valentine, 177 Va. 731 (1941) (notes directly contradicted testimony).
• Wills v. Chesapeake Western Rwy. Co., 178 Va. 314 (1941) (testimony of bond holder that he did not order trustee to sell property held by trustee to secure bond payments, and that he was not aware that property had been sold, was not corroborated by the fact that the trustee paid bond holder interest due on the bond).
Corroboration not necessary when:
• Officer of corporate party who engaged in transaction was the deceased. Union Trust Corp. v. Fugate, 172 Va. 82 (1939).
• Testimony was offered by opposing party, if not inherently improbable. Balderson v. Robertson, 203 Va. 484 (1962) (car accident), Brown v. Metz, 240 Va. 127 (1990) (promise to make gift), Enright v. Bannister, 195 Va. 76 (1953) (delivery of deed), Economopoulos v. Kolaitis, 259 Va. 806 (2000) (testimony by survivor regarding validity of new will elicited by adverse parties during their portion of the case; despite fact that survivor was beneficiary to will ahd had previously had a business relationship with decedent, which, had it continued, would have given rise to a presumption of fraud, his testimony does not need to be corroborated).
• An interested party testifies on behalf of decedent. Paul v. Gomez, 118 F.Supp. 2d 604 (2000) (car accident), Wrenn v. Daniels, 200 Va. 419 (1958) (contract dispute).
• Living parties are disputing validity of a will. Croft v. Snidow, 183 Va. 649 (1945).
• Witnesses are not interested parties (contract disputes). Scholz v. Standard Accident Ins. Co., 145 Va. 694 (1926) (witness was merely agent of an interested party). Nor is it necessary if general corroboration as to item at issue is established. Downing v. Huston, Darbee, Co., 149 Va. 1 (1927) (only have to corroborate payment of debt at issue), Doughty v. Thornton, 151 Va. 785 (1928) (do not have to corroborate specific amount of payment, if can corroborate general contract for care).
Other corroboration issues:
• Adams v. Adams, 233 Va. 422 (1987) (decedent's statements made while alive were admissible under the statute).
• Ricks v. Sumler, 179 Va. 571 (1942) (case remanded for proof of corroboration which was not at issue in prior trial).
• Mapp v. Byrd, 169 Va. 519 (1938) (court may decide case on other evidence if it is sufficient after eliminating all contradictory and non-corroborated testimony).