The Dead Man’s Statute

Virginia’s “Dead Man’s Statute,” found at Va. Code § 8.01-397, does two things: (1) it provides a hearsay exception allowing certain statements to come into evidence when the person who made them is dead or otherwise incapable of testifying; and (2) it prohibits an adverse party in litigation from winning a judgment based solely on uncorroborated testimony that can’t be rebutted due to the other party’s incapacity. The statute makes it more difficult to win a case against someone who has died. If key testimony will relate to conversations between the decedent and the adverse party, or to events that took place in the decedent’s presence, the law does not permit the surviving party to win a judgment based solely on his own uncorroborated testimony when the decedent is not available to challenge that testimony.

The Dead Man’s Statute provides in material part:

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 purpose of the statute is to prevent a litigant from having the benefit of his own testimony when, because of death or incapacity, the other party isn’t around to speak for himself. See Hereford v. Pates, 226 Va. 605 (1984) (“[T]he statute was designed to prevent…an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death.”) The statute is less harsh than the old common-law rule, which disqualified the surviving party from testifying at all. (It used to be that every witness with an interest in the outcome of a case was disqualified from testifying. See Epes v. Hardaway, 135 Va. 80, 84 (1923)). The statute now allows the surviving party to testify but adds a corroboration requirement.

Corroborating evidence is evidence that tends to confirm and strengthen or to show the truth or probability of the testimony of the witness who must be corroborated. Corroborating evidence can come from another witness, or can be established through other evidence such as documents. Corroboration may be furnished simply by surrounding circumstances. (See Brooks v. Worthington, 206 Va. 352 (1965)). What’s important is that the corroboration emanate from sources outside the surviving party’s own testimony or from circumstances beyond the surviving party’s control. (See Virginia Home for Boys & Girls v. Phillips, 279 Va. 279 (2010)). In the absence of any corroboration, the jury will be instructed to disregard the uncorroborated testimony. (See Virginia Model Civil Jury Instruction 2.240). If, however, the court finds more than a “scintilla” of corroborating evidence, the jury should be allowed to resolve the factual issue of whether that evidence sufficiently corroborated the testimony. (See Johnson v. Raviotta, 264 Va. 27, 33, 39 (2002)).

The degree and quality of corroboration will vary with the case. A higher degree of corroboration is required in cases involving parties between whom a confidential relationship existed. For example, because doctors and their patients enjoy a confidential relationship, if the patient dies and his estate brings a malpractice action against the doctor, the doctor’s testimony concerning advice given to the patient must be corroborated to a high degree before it can be the basis for a verdict in his favor. (See Diehl v. Butts, 255 Va. 482 (1998); Lohman v. Reston Hospital Center, LLC (Fairfax Cir. Ct. Sept. 21, 2022)).

Without the benefit of the statute, out-of-court statements such as those made by the decedent while he was alive would be barred from evidence by the hearsay rule if offered to prove the truth of the matter asserted. The Dead Man’s Statute eliminates hearsay as a concern under these circumstances. (See Virginia Supreme Court Rule 2:804(b)(5)). The hearsay exception applies to “all entries, memoranda, and declarations” by the decedent, which has been interpreted to include all of the decedent’s statements, regardless of whether they were made contemporaneously with the transaction at issue. (See Gelber v. Glock, 293 Va. 497 (2017)). If the declarant is dead or incapacitated, applying the hearsay rule would result in all testimony from that person being excluded from the case. Apparently the thinking is that hearsay evidence is better than no evidence at all.

You don’t have to be dead to be entitled to protection under the Dead Man’s Statute. The statute also protects individuals who are legally incompetent for other reasons, such as mental incapacity. Corporations, however, are not protected. The word “person” in the context of the statute means natural persons, so corporations are not entitled to rely on the statute even if the employee who made the contract in question is deceased. (See Union Trust Corp. v. Fugate, 172 Va. 82 (1939)).

For more on the ins and outs of Virginia’s Dead Man’s Statute, as well as a detailed recounting of its history, see Shumate v. Mitchell, 296 Va. 532 (2018) and the recent Fairfax Circuit Court opinion in Lohman v. Reston Hospital Center, LLC.