The Virginia Dead Man’s Statute is misnamed. It really doesn’t apply just to dead men. Rather it applies to cases where a person is not able testify. Being unable to testify may be a result of injury, amnesia, treatment, medication or other causes.
The Dead Man’s Statute has two parts. One of them requires corroboration of what the available party presents in order to prevail against the dead man. The other allows the presentation of any statements made by the dead man while he was capable of testifying.
Corroboration
The corroboration requirement is intended to make sure that one party does not have the benefit of testifying when the other party is not able to. Therefore if the available party testifies then he must present some additional proof of what he has said.
This evidence must confirm and strengthen the initial testimony of the party. This added proof may be slight. It may be shown by circumstantial evidence, expert testimony or physical evidence. In cases of a confidential relationship there is a higher degree of proof required. This type of relationship exists in regards to physician-patient or attorney-client. In those cases the doctor or lawyer has a higher burden. That is their additional proof must be even better than what is required of a layperson.
Interested Person
However this requirement cannot be met by an interested person nor by that party’s own testimony as to habit or routine. Who is an interested person? Anyone with a money interest in the outcome. The available party testifying and her husband testifying on the same issue is not enough. The husband is an interested person.
In Johnson v. Raviotta, 264 Va. 27, 563 S.E.2d 727 (2002) the court held that it was an error to allow this evidence when the issue was a reading of the decedent’s blood pressure. The doctor stated that the blood pressure of the decedent was normal when he left the office because he always re-checked blood pressure before sending the patient home. However this was not confirmed by anything in the chart. If there had been something in the chart then that would have been enough. The statute allows corroboration by business records. In this case the doctor was offering the additional proof in the form of his own habit. That was not enough.
In looking at this issue, you must be wary of evidence that is consistent with some alternative theory. If the evidence simply falls into this class then it may not be enough.
See also the case of Shumate v. Mitchell, 296 Va. 532, 546 (2018) for a good summary of both aspects of the Dead Man’s Statute.
Waiver
The requirement however does not apply where an interested person testifies for the dead man.
Where the dead man presents evidence from such a person then the need for additional proof is waived. The logic being that the dead man, having offered proof from a person with a money interest in the case, does not need to have the field leveled. He leveled it himself.
Statements of the Dead Man
The other part of the law that is more often used is the feature that allows for statements of the dead man to be used for any purpose. This applies to any statement that tends to prove or disprove any issue in the case. This can be a powerful weapon.
Call, or contact us for a free consult. Also for more info on dead man’s statute see the Wikipedia pages. Also see the post on this site dealing with wrongful death issues.
