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The Dead Man’s Rule in Virginia

On Behalf of | Nov 9, 2022 | Personal Injury, Wrongful Death

The rules of evidence, generally, prohibit hearsay—a statement made out of court admitted for its truth. Of course, the application of the rule and its numerous exceptions is often a more difficult task, but the basic rule against hearsay is a longstanding fixture of law in the United States, including Virginia. There is another rule of evidence, however, embodied in laws commonly known as Dead Man’s Statutes, that is also widespread throughout the United States. The name is, at least today, something of a misnomer: it applies to people of all genders and does not apply strictly to dead persons, but to any person “incapable of testifying”—for instance, due to mental incapacity.

Generally speaking, these laws prohibit or limit testimony regarding communications or transactions with a person incapable of testifying. The purpose of the rule is one of fairness, evening the playing field between the party capable of testifying and the party not. Otherwise, the party capable of testifying would have an advantage, as the opposing party, if incapable of testifying, would often lack the means to counter the testifying party’s evidence. Virginia’s Dead Man’s Statute follows this general principle, but is also unique in that it contains another rule, allowing the relevant statements of a person incapable of testifying to be admitted into evidence, notwithstanding the general rule against hearsay.

The Supreme Court of Virginia examined this rule in the case of Shumate v. Mitchell. The plaintiff, Debra Shumate, was injured in an automobile collision. The driver who was at fault, William Earl Thompson, later died from unrelated causes. Thus, Ms. Shumate sued Mr. Thompson through his personal representative, Terri Mitchell. At trial, the decedent’s son, Billy, testified as to his father’s description of the collision and its attendant circumstances. Ultimately, the jury returned a verdict for Ms. Shumate (the estate had conceded liability), but awarded her no damages.

Ms. Shumate appealed the trial court’s admission of Billy’s testimony regarding his father’s statements. Ms. Shumate argued that this testimony constituted inadmissible hearsay, and that the Dead Man’s Statute did not apply because (1) a live witness was available to testify, (2) the statute does not apply to issues of nonliability, and (3) that the testimony was not corroborated by any other evidence. The Supreme Court of Virginia, however, rejected all of Ms. Shumate’s arguments, holding that (1) the availability of a live witness does not implicate the second part of the Dead Man’s Statute; (2) the Dead Man’s Statute applies to all relevant testimony; and (3) testimony admitted under the second part of the Dead Man’s Statute does not require corroboration.

Ms. Shumate cautioned that, under the Court’s interpretation of the statute, “the party asserting the Dead Man’s Rule could bring in a plethora of out of court, unreliable hearsay of what the decedent said to others to bolster unfairly the decedent’s case” The Supreme Court remained unconvinced, however, describing the plaintiff’s “collection of misgivings” as “actually an accurate statement of the statute.”

Shumate confirmed that Virginia’s Dead Man’s Statute is a powerful and unequivocal rule. Thus, if you believe you have a legal claim on behalf of a loved one who is incapable of testifying, you may nevertheless have evidence to support the claim with Virginia’s Dead Man’s Rule.

Fishwick & Associates Represents Personal Injury Victims Virginia

If a loved one suffered injuries and is now deceased or lacks mental capacity, Fishwick & Associates can help you understand your legal options. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.

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Va. Code § 8.01-397.

Shumate v. Mitchell, 822 S.E.2d 9 (Va. 2018).

Va. Sup. Ct. R. 2:803 and 2:804.