The Dead Man’s Rule

April 11, 2012

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common in legal practice, the former Article 3716 Dead Man’s Statute, which was enacted in the 1870’s was actually repealed by the Texas Legislature in the early 1980’s.  The current law is found in Texas Rules of Evidence 601(b), and is now called the Dead Man’s Rule: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


Witness Competency

October 22, 2011

Long before Robinson and Daubert subjected expert witnesses to a judicial pre-screening process, Texas judges were acting as gate-keepers as to fact witnesses on the basis of competency. In fact, legal history inTexas is replete with many grounds to exclude witnesses due to incompetency, most of which have long-since been abandoned or repealed, such as religion, race and criminal convictions. Two exclusionary grounds remain, however, in the current rules of evidence – witnesses who are mentally incompetent and children.

According to Rule 601(a) of the Texas Rules of Evidence, the following witnesses shall be incompetent to testify in any proceeding: (1) persons “in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify,” and (2) children “who appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”   

The Burden of Proof:  The mandatory prohibitory language of the rule would suggest that before a party may offer a child or mentally challenged adult as a witness, testimonial competency must first be proven.  This approach would be consistent with the burden of proof required in expert witness gate-keeping, i.e., that the burden lies with the party proffering the witness. However, with regard to witness competency, the rule has been applied in quite the opposite manner. With one exception, the burden of proof belongs to the objecting party, not the offering party, to prove incompetency to testify at trial. The only exception occurs when the witness has previously been declared insane or incompetent. In that situation, a presumption against competency exists, which may be rebutted with evidence of competency (but the mere fact that a witness has previously been declared insane or incompetent will not automatically render the witness’ testimony incompetent).

The Standard:  The three elements to consider when determining testimonial competency are:  (1) the competence of the witness to observe intelligently the events in question at the time of the occurrence; (2) the capacity of the witness to recollect the events, and (3) the capacity of the witness to narrate the facts.  With regard to the third element, a witness must be able: (1) to understand the questions that are asked, (2) to frame intelligent answers to those questions, and (3) to understand the moral responsibility to tell the truth. 

Notably missing from this analysis is any requirement that the testimony be consistent, and it is important to keep that in mind.  Inconsistencies in testimony will not render a witness incompetent.  For example, in Rodriguez v. State, even though the witness, an Alzheimer’s patient, couldn’t remember her own age, the day of the week she was testifying, or that she had been attacked with a knife instead of a pistol, she was still held competent to testify because in other ways her testimony provided a “lucid and purposeful” account of the events surrounding the robbery and assault. Furthermore, all of the witness’s testimony was independently corroborated by either circumstantial or direct evidence. Most frequently, this issue arises in the context of young child witnesses whose testimony can often be inconsistent and confusing. The fact that a child’s testimony is confusing and inconsistent may make it less credible, but it does not render the testimony incompetent. 

Child witnesses are also frequently scrutinized for their ability to understand the moral responsibility to tell the truth.  Because there is no absolute cut-off as to the age in which a child is deemed incompetent to testify as a matter of law, many child witnesses may be too young to articulate or even understand the meaning of a legal oath. Nevertheless, a child may demonstrate competency if he or she has an understanding that it is wrong to lie and is impressed with the need to be truthful. (In those circumstances, a child witness would not be required to take a formal oath prior to testifying.)

Applicability of the Rule:  While at first blush, TRE 601(a) may seem to apply only to the mentally disabled and youngsters, the rule actually has a broad range of applicability, including the physically disabled, the elderly and those suffering from chemical dependency. For example, the capacity of a witness to narrate the facts, including the ability to frame “intelligent answers” to questions, may form the basis of challenge to the testimony of a stroke victim. In one such case, the testimony from the witness who seemingly understood the questions but could respond only with the expression “uh-huh,” which, according to his caretaker/interpreter, meant both “yes” and “no,” depending upon other gestures used at the time he uttered the phrase, was excluded on competency grounds. 

While the capacity to “recollect events” could form the basis of a competency challenge to an elderly witness, infirm memory is not an absolute bar.  For example, one court has held an 80-year old witness with memory deficits competent to testify even though he could not recall the current month or any current events in the news.  In that case, the court held that the witness’s failure to recall certain events should not preclude him from testifying about matters that he could recall.

Finally, while alcoholism or drug dependency does not automatically render a witness incompetent, intoxication may give rise to two grounds for a competency challenge:  (1) a challenge based upon the witness’s inability to observe, recollect or narrate the events at the time of the occurrence due to the witness’s intoxication at the time the events occurred, or (2) a challenge based upon the witness’s inability to observe, recollect or narrate the events in court due to the witness’s intoxication at the time the testimony is offered. Either situation would provide sufficient grounds to exclude testimony on the basis of incompetency.

Texas has come a long way from the days when a witness would be considered legally incompetent based on his or her race, gender, ethnicity or religious beliefs.  Nevertheless, modern day concerns, such as the aging population (and medical issues associated therewith) and society’s struggle with problems of chemical dependency and addiction, raise new questions regarding witness competency at trial.

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


Proof of Jury Misconduct During Deliberations

September 20, 2011

Texas jury verdicts are a lot like Las Vegas. Even the law recognizes that what happens in the jury room needs to stay in the jury room. 

With one exception (the “outside influence” exception), Texas Rules of Evidence 606 expressly prohibits jurors from testifying, either live or by affidavit, as to any matters that occurred during deliberations. In practical terms, this rule means that after the last argument is made and the door closes behind the twelfth juror entering the jury room, most anything that jurors say or do from that point until the verdict is returned to the courtroom is protected from disclosure. Whether jurors speculated as to liability insurance, tossed coins, drew straws, or conducted themselves in any other manner prohibited by law during deliberations, the only eye-witnesses who could testify about it are expressly prohibited from doing so.

Though two decades old, Daniels v. Melton Truck Lines, Inc. perhaps still provides the best example of the incredible reach of this rule. In that case, the trial court struck a motion for new trial’s supporting affidavits which outlined the following jury misconduct: 

(Juror Hamilton) kept repeating that she was a police officer…and her duties included patrolling, investigating … and issuing tickets…  She left the distinct impression that if we did not answer the questions as she thought they should be answered, that we would see her later and could suffer the consequences…  (S)he was angry and shouted down those who disagreed with her… She never directly threatened anyone but … indicated those disagreeing with her could see her later in the patrol car…  It is my opinion that the emphasis on her right to make arrests… had an influence on some of the jurors changing and siding with her…

Five other jurors came forward with similar testimony regarding Hamilton’s conduct during deliberations.  Nevertheless, the Court of Appeals agreed that the testimony fell squarely within the prohibition of Rule 606 and the trial court did not err in disregarding it.  704 S.W.2d 142 (Tex. App. — Eastland 1986), explaining:

Rule 606(b) bars testimony by any juror as to all matters or statements occurring during the course of their deliberations, except for testimony that “any outside influence was improperly brought to bear upon any juror.” As we read this rule, the statements by Juror Hamilton do not come within the exception and, consequently, proof of her statements and their effect is barred by the rule.

The Texas Supreme Court has upheld strict application of the rule, enunciating four public policy reasons which justify the prohibition against a losing party “putting the jury on trial.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). They are: 

  1. The need for jurors to be able to candidly discuss the evidence and issues without fear that their deliberations will be held up to public scrutiny; 
  2. The need to protect jurors from post-trial harassment or tampering;
  3. The need to protect proper verdicts from disgruntled jurors who might seek an avenue of vindication by attempting to overturn them, and
  4. The need for finality to promote public confidence in judgments.   

Given the huge evidentiary hurdle, what is an attorney to do when faced with allegations of jury misconduct which occurred during the deliberative phase of trial? 

  • Look to the exception in the rule:  Jurors are permitted to testify whether “any outside influence was improperly brought to bear upon any juror.”  (Note that this exception will also permit one juror to speculate as to influences on other jurors, not just on themselves.)  Although the Texas Supreme Court has never defined what kind of “outside influence” a juror may testify about, they have indicated that they consider an outside influence as something that must “originate from sources other than the jurors themselves.”  24 S.W.3d at 370.
  • Consider the obvious:  Judges, bailiffs and any other member of the court staff who have access and contact with members of the jury can be “outside influences” for the purpose of this rule.
  • Know what “deliberation” is (and isn’t):  While older cases defined deliberation as “any conversation regarding the case occurring between or among jurors … regardless of the time and place where it occurs,” the Supreme Court has expressly refused to accept such a broad definition.  Informal discussions among jurors during breaks are not part of deliberations, the Court has held, especially since jurors are specifically admonished not to engage in informal discussions.  In many charges, the jury is instructed only to deliberate “in the jury room when all members of the jury are present.”  If an attorney learns of misconduct which occurred in the jury room, a further inquiry as to how many jurors were present at the time could prove fruitful.  If jurors were missing from the room when the misconduct occurred, then the jury should not have been “deliberating” under the instructions of the judge.  Perhaps, then, the misconduct didn’t occur during “deliberations,” rendering Rule 606 inapplicable.
  • Look for other sources of evidence:  Sometimes competent evidence of juror misconduct can be proved using sources other than the jurors themselves.  Mayo v. State, 708 S.W.2d 854 (Tex. Crim. App. 1986) (testimony from a witness contacted by a juror).
  • Whatever you do, though, act quickly:  Assuming the evidentiary hurdles can be overcome, time is of the essence.  Complaints of jury misconduct must be raised by motion for new trial, giving an attorney a narrow window of opportunity to preserve error.  Thirty days after the judgment is signed, any right to raise a complaint of jury misconduct on appeal is lost. 

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


The Non-Responsive Objection

June 14, 2011

One of the most common trial objections is “Objection, non-responsive,” an objection which is often followed up by a motion to strike or to instruct the jury to disregard.  Yet, conspicuously absent from the Texas Rules of Evidence is any rule providing that non-responsive answers are inadmissible or subject to exclusion. 

The fact is, many non-responsive answers may be properly received into evidence, and when a court declines to exclude or strike a non-responsive answer, oftentimes no error is committed.  Because there is no wholesale bar to admissibility of non-responsive answers, one must look to other rules for guidance to determine admissibility in specific circumstances.

Texas Evidence Rule 402 provides that relevant evidence is generally admissible.  Rule 103(a)(1) provides that if the ground for objection is not apparent from the context, an attorney has the duty to enlighten the court as to why it is inadmissible.  Reading the two rules together suggests that a court may allow non-responsive testimony into evidence if it is relevant and no other objection is lodged or apparent from the context.  However, TRE 611(a) confers authority to the court to exclude that evidence as well:

“The court shall exercise reasonable control over the mode and order of interrogating a witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

Provided the court’s exercise of control is “reasonable,” in the quest for truth, efficiency and fairness, whether to admit or exclude non-responsive answers is left to the discretion of the trial court when no other ground of objection is lodged or apparent from the context.

In practical terms, when an attorney makes a “non-responsive” objection to evidence which otherwise appears to be admissible, the trial court has several permissible options.  If an answer is completely non-responsive to the question posed, then a judge is very likely to sustain the objection.  After all, attorneys are entitled to receive answers to questions properly propounded. 

However, the outcome becomes less predictable if, after responding to the question, the testimony takes a non-responsive turn.  In that situation, a judge might sustain a non-responsive objection on the basis that the additional testimony is repetitious.  An objection might also be sustained to avoid a rabbit trail which the judge believes would result in ineffective presentation of the evidence.  But a judge might also overrule the objection, especially if the testimony, albeit non-responsive, serves to clarify, explain or provide further details about the responsive portion of the answer in an effective and efficient manner.  Finally, there is nothing to prevent a judge from applying a very rigid approach, requiring strict adherence to responsive answers in Q & A form at all times, sustaining all valid non-responsive objections raised.  All of these approaches are well within the discretion of the trial court.

For that reason, a trial attorney should not rely on a “non-responsive” objection, especially when considering the preservation of error.  Instead, attorneys should focus on whether non-responsive answers are objectionable on other grounds.  Assuming other grounds exist to exclude the evidence, then the trial court’s discretion to admit or exclude the non-responsive answer can be substantially limited by combining another valid objection with the non-responsive objection. 

If a non-responsive answer contains hearsay, for example, then a hearsay objection should be included, e.g., “Objection — non-responsive, hearsay,” or simply “Objection — hearsay.”  Either objection will apprise the court of the true reason why the answer should not be admitted into evidence, i.e., that it is objectionable hearsay.  By so doing, the court’s attention is focused toward a particular rule which would require, as opposed to simply permit, exclusion under the circumstances. 

What does this mean for trial testimony?  There is nothing inappropriate about making a non-responsive objection.  It’s a great objection when an attorney wants the court to rein in a witness who is either evading questions or simply won’t shut up.  But the court is not bound to do so.  If the real problem is what is being said, as opposed to when it is being said, then the objection needs to identify that ground of objection, e.g., “Objection — irrelevant,”  “Objection — hearsay,” “Objection — best evidence,” etc.  By so doing, the court is forced to make an evidentiary ruling which carries with it far less discretion on review.

What does this mean for deposition testimony?  Ironically, the only objection permitted to deposition answers under Texas Rules of Civil Procedure 199.5(3)(e) is “Objection, non-responsive.”  Nonetheless, since non-responsive deposition answers, if otherwise admissible, may be received into evidence, an attorney cannot rely on the “non-responsive” objection alone as a basis for exclusion of the testimony at the time of trial.  At the time of challenge to the admissibility of deposition testimony for use at trial, the attorney should focus on the substantive objection.  As with live testimony, such an objection will serve to both apprise the court as to why the evidence needs to be excluded and preserve error for later review.

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


The Limitations on Admissibility of Prior Consistent Statements

June 7, 2011

There are few pieces of evidence that attorneys love to lay their hands on more than an opponent’s prior inconsistent statement. Admissibility of these statements is rarely in doubt, and they provide attorneys with a golden opportunity to ask the ever-popular cross-examination question: Were you lying then, or are you lying now?

More troublesome, however, are those pesky prior consistent statements. What should be done when a witness keeps telling the same story, the same way, over and over again?

Offered for the truth of the matter asserted, a prior consistent statement is blatantly inadmissible hearsay. It’s an out-of-court statement offered for the truth of the matter asserted, and no matter how many times a witness has said it before, frequency will not change that basic analysis.

Setting aside the hearsay problem for a moment, most prior consistent statements won’t even meet a threshold test of relevancy, because most prior consistent statements do not tend to prove or disprove a material fact in issue. This is because at best, the probative value of a prior consistent statement requires a leap of faith. In order for a prior consistent statement to be relevant, one must believe that if a person has said something enough times, it’s probably true. Common sense and experience tells us that just because grandpa’s been spinning that same yarn for the last fifty years, doesn’t make the tale any less dubious. Luckily, the Texas Rules of Evidence reflect that basic reality. Otherwise, that’s-my-story-and-I’m-sticking-to-it would become the test for admissibility under the rules.

So, for reasons of relevancy and hearsay, the general rule is that a prior consistent statement is inadmissible:

TRE 613 (c): A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).

However, there may be circumstances when a prior consistent statement may become admissible, providing an exception to the general rule:

TRE 801(e)(1)(B): A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Some may argue that Rule 801(e)(1)(B) opens the barn door to admission of virtually all prior consistent statements. It does no such thing. Rule 801(e)(1)(B) narrowly tailors an exception unique to particular factual circumstances. In order to be admissible, there must be: (1) an express or implied charge, (2) against the declarant, (3) of recent fabrication or improper influence or motive. If the other side doesn’t open the door to this testimony by making such a charge, then Rule 801(e)(1)(B) never comes into play, and the statement remains inadmissible.

The language of the rule is highly restrictive. For example, merely impeaching a witness or calling into question a witness’s veracity will not in and of itself invoke the Rule 801(e)(1)(B) exception. Furthermore, a prior consistent statement will remain inadmissible, even under a charge of recent fabrication, if the statement was made shortly before trial, in anticipation of trial, or after a motive to fabricate existed. Beaver v. State, 736 S.W.2d 212 (Tex. App. – Corpus Christi 1987).

Even when there has been an express or implied charge against the declarant of improper influence or motive, a predicate must be laid for the admission of the prior consistent statement. As a general rule, appellate courts will not require a trial judge to be a mind-reader. Unless it is painfully obvious from the context, rules of procedure and evidence require that an attorney, when faced with an objection, articulate to the judge the purpose of any offer of evidence. Under Rule 801(e)(1)(B), an attorney seeking the admission of a prior consistent statement over objection should be prepared to educate the judge as to the reason why the exceptions embraced in Rule 801(e)(1)(B) apply. It is not the judge’s burden to read between the lines and figure out that the statement would rebut the opponent’s charge. The statement must be “offered” into evidence for that purpose. If the attorney fails to lay the proper predicate for the prior consistent statement’s admissibility, then the judge may rightfully reject it.

Likewise, when challenging an opponent’s attempt to offer a prior consistent statement into evidence, an attorney needs to clearly articulate the basis for the objection. Simply saying, “Rule 801, hearsay” in opposition to a prior consistent statement has been held insufficient to put the trial court on notice as to the particular objection being lodged. Meyers v. State, 865 S.W.2d 523 (Tex. App. – Houston [14th] 1993). A concise statement that (1) the statement offered is a prior consistent statement, (2) which does not fall within the exceptions of Rule 801(e)(1)(B), should be adequate both to make clear your objection and to preserve error on the point, if necessary.

I’ve said all of this before, and now I’m saying it again. It’s just got to be true. And admissible. Well, maybe not.

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


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