The Dead Man’s Rule

It is said that dead men tell no tales.  But in Texas, sometimes they do.  It all depends on whether the Dead Man’s Rule applies.

Although reference to the Dead Man’s Statute is still fairly common in legal practice, the former Article 3716 Dead Man’s Statute, which was enacted in the 1870’s was actually repealed by the Texas Legislature in the early 1980’s.  The current law is found in Texas Rules of Evidence 601(b), and is now called the Dead Man’s Rule:

“Dead Man Rule” in Civil Actions: In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement…

Although the Dead Man’s Rule is similar to the former Dead Man’s Statute, it is less restrictive.  Thus, much of the case law decided prior to 1983 dealing with the admissibility of statements made by decedents is inapplicable because the language of the statute interpreted by those cases was considerably broader in scope.  The statute applied to all testimony, not just testimony at trial, and it applied to all transactions with a decedent, not just transactions based on oral statements made by a decedent.  

The purpose of the doctrine remains the same, however, and that is to prevent a party in litigation from offering testimony attributed to a deceased person when that person is no longer available to refute it.  Once death has sealed the decedent’s lips, the rule works to seal the lips of any other party who might benefit from fabricating conversations or statements.  Without such a rule, it is feared that a fraud could be more easily perpetrated either on behalf of or against a decedent’s estate.

While the former Dead Man’s Statute barred evidence of a decedent’s oral statements as to any transactions involving the decedent, the Dead Man’s Rule applies only to civil actions[1] when one party to the lawsuit is the executor, administrator, heir or legal representative of the decedent’s estate[2].  Unless the oral statement can be corroborated by a disinterested witness, it is excluded from evidence under the rule.  The Rule applies only in cases involving parties in their representative capacity, and does not apply when a party is suing in his own individual capacity.  For that reason, while the Dead Man’s Rule would apply to survival actions, it would have no applicability in a wrongful death action.[3]

Corroboration.  If any disinterested witness offers testimony as to prior statements made by a decedent, then such testimony will corroborate the testimony of the executor, administrator, heir or legal representative as to those same statements.  In that event, the executor, administrator, heir or legal representative is no longer barred from providing testimony about the statements.  Generally speaking, for purposes of this Rule, a disinterested witness is any person who is not an executor, administrator, heir or legal representative.  This may include relatives and close friends, as long as they do not have a financial interest in the decedent’s estate or the outcome of the lawsuit.  The corroboration may also come in the form of a document.

It is not necessary that the corroborating witness provide direct testimony about the decedent’s oral statement, so the corroborating witness need not actually have heard the words spoken.  All that is required is that the corroborating witness provide testimony that tends to prove the truthfulness of the testimony that would otherwise be barred.  For example, proof that a decedent subsequently acted in conformity with the decedent’s alleged oral statement would suffice as corroboration and render an executor’s testimony as to the statement admissible.

Waiver.  The applicability of the Dead Man’s Rule can be waived by calling the adverse party to the stand and eliciting testimony about statements which would otherwise be barred under the rule.  Unlike the Dead Man’s Statute, however, there is no waiver in the eliciting of these statements during discovery.  As with virtually all evidence that may be offered at trial, waiver can also occur by failing to object when testimony is offered in violation of the Dead Man’s Rule.

Jury Instruction.  In cases where a witness’s testimony has been excluded under the Dead Man’s Rule, the trial court is required to instruct the jury as to the application of the rule.  The last sentence of Rule 601(b) provides that a trial court shall “instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.”  The purpose of this instruction is to prevent one party from improperly suggesting to the jury that because there is no evidence at trial about decedent’s statements, the decedent must not have made any.

So, the bottom line is that dead men do tell tales inTexas.  Was there ever really any doubt?

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[1] The Dead Man’s statute never applies in criminal cases.

[2] The rule also applies to guardians of estates.  In this circumstance, prior oral statements by a person later declared incompetent are treated the same as prior oral statements made by a decedent.

[3] But where the two causes of action are intertwined, the Rule would be applicable unless the claims are severable. 

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