The Dead Man's Statute. It's Really Not Something Out of A Pirate Movie

Posted By Michael R. Varble || 13-Apr-2014

In today's blog post, I discuss the dead man's statute. It's really not something out of a pirate movie even though it sounds like it. The dead man's statute deals with a common law rule that a witness or party to a transaction that survives cannot prove an event through testimony about what the dead person said or did without there being some other form of evidence in the record.

The Dead Man statute in New York is contained in CPLR § 4519 for the attorneys out there that are reading this. The essential parts of the statute are that (1) any person interested in the event or a predecessor of such person may not testify may not testify in his or her own behalf against (2) certain protected persons with a specified relationship to a deceased person or mentally ill person (3) concerning a transaction or communication with the deceased or mentally ill person. You can't testify against a dead person about what the dead person said while they were alive is probably the most basic way to state this rule. As with every rule in the law, there are, of course, exceptions.

Our readers should keep in mind that the statute applies only to witnesses and not documents. As a result, an adverse party can use documentary evidence during the course of a trial against a deceased person or a mentally ill person. However, there are normally foundational questions that need to be answered to place a document into evidence and, if those questions cannot be answered by a witness other than the deceased person, you are going to have a problem getting that document into evidence during a trial.

In addition, a witness can testify about statements or transactions with a deceased witness if the witness is not an interested in the subject event. What does this mean ? An interested person is someone who will stand to gain or lose by the direct legal operation and effect of a judgment or a record int he proceeding will be evidence either for or against the witness in another proceeding. One of the routine examples of an interested party is are contestants in a probate dispute. Beneficiaries to a will are not permitted to testify about their dealings with the deceased party for the purpose of declaring the will invalid. I am sure you can understand why. If the Courts permitted this to happen, it would be impossible to tests statements claimed to have been made by the deceased person under cross-examination and, as a result, it would seriously undermine the Court's truth seeking function.

Some additional exceptions to the Dead Man's statute are that witnesses are not prohibited from testifying about the facts of an accident or the results therefrom where the claims involve negligence or contributory negligence in an action is based on the operation of a motor vehicle, an air craft, or a boat. Witnesses are not permitted to testify about what the deceased person said, but they can report what happened in an accident. Sooo, a witness can testify that he or she saw a person run a red light but the witness cannot testify that the deceased party admitted to running the red light.

The protections offered by this statute can also be waived by th protected party by not objecting at the time of trial. The protected party can also waive his or her rights under this statute if the protected party testifies about the event during the course of the hearing. You can't have your cake and eat it too in other words. There can also be a waiver if the attorney for the protected party asks questions of the witness prohibited from testifying about under this statute. Lastly, the protection of this statute can be waived if there was a deposition of the deceased party in pre-trial proceedings and the deposition of the deceased party is introduced into evidence at the time of trial.

So what does all of this mean to our readers and clients ? We can't use statements of deceased persons at the time of trial to help our client's case or discredit our adversary's case unless we have disinterested witnesses who can testify about these matters or we have documentary evidence that recorded the statements. It also means that with complicated evidentiary issues like this, you are going to want the assistance of experienced litigators and trial lawyers.

So in closing, I will say what I often say which is I sincerely hope that our readers do not need to use our services. Unfortunately, I know that accidents will happen and insurance companies will continue to operate along with police, Courts and attorneys. So if you have issues relevant to the issues contained in this blog topic and you need to discuss them in more detail, feel free to give us a call and schedule a free consultation. Best wishes and may you and your family never need to be called the plaintiff.

Categories: Personal Injury

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