Dead Man Talking

I.   Introduction

Dead Man's statutes are a vestige of the common law disqualification of an interested party as a witness. The statutes prohibit the admission of a decedent's statement as evidence in certain circumstances. The purpose of the statutes is to prevent the surviving party to a transaction from having the advantage of his own testimony when the decedent's representative is deprived of the decedent's version of events. The result is often that otherwise relevant evidence is withheld from the trier of fact.

Dead Man's statutes are often criticized for their underlying assumption that an interested witness might perjure himself in order to advance his interest in a lawsuit. Despite wide criticism for the statutes, Tennessee is among a dozen or so states that retain a version of the Dead Man's statute. This article briefly explores the history of Dead Man's statutes generally and examines Tennessee's Dead Man's statute specifically.

II.   History and Diversity of Dead Man's Statutes

In seventeenth century England, a defendant was commonly tried by a jury. At that time, interested witnesses, including the defendant, were prohibited from testifying on the theory that juries were incapable of properly weighing testimony. In the nineteenth century, however, England abolished evidentiary rules requiring disinterested witnesses and soon thereafter amended its laws of evidence to allow competent witnesses, interested or not, to testify.

In the United States, many states followed England's example and abolished statutory disqualifications for interest. In the wake of eliminating disinterested witness rules, states began enacting Dead Man's statutes in order to protect estates of decedents.

There is no federal Dead Man's statute, nor do the Federal Rules of Evidence specify any federal grounds of disqualification of a witness for interest. However, the Federal Rules of Evidence respect various states' Dead Man's statutes. Specifically, Rule 601 of the Federal Rules of Evidence provides that, "the competency of a witness shall be determined in accordance with state law."

Dead Man's statutes vary greatly from state to state. Typically, the statutes work as a rule of competence to render a witness who is a party to the litigation incompetent to testify regarding conversations with the deceased. But beyond that, states' statutes differ considerably on everything from the type of proceeding that is required to invoke the statute to which witnesses are prohibited from testifying and what testimony is restricted. An examination of Tennessee's Dead Man's statute follows.

III.    Tennessee's Dead Man's Statute in Operation

Evidence of the alleged statements of a decedent and evidence of the proponent's transactions with the decedent are inadmissible pursuant to Tennessee Code Annotated § 24-1-203 (2008), the Tennessee Dead Man's statute. Tennessee's Dead Man's statute generally provides that in actions involving executors, administrators, or guardians, neither party may testify against the other as to any transaction with or statement by the testator.

A. The Language and Purpose of the Statute

Rule 601 of the Tennessee Rules of Evidence, which is parallel to Rule 601 of the Federal Rules of Evidence, provides that "[e]very person is presumed competent to be a witness except as otherwise provided in these rules or by statute." The primary statutory exception to Rule 601 is the Dead Man's statute. Tennessee's statute provides as follows:

In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. If a corporation is a party, this disqualification shall extend to its officers of every grade and its directors.

Tenn. Code. Ann. § 24-1-203. The purpose of the statute is to prevent the surviving party from having the benefit of his own testimony, when his adversary (the decedent's representative) is deprived by death of the decedent's version of the transaction or statement. Burke v. Arnold, 836 S.W.2d 99, 101 (Tenn. Ct. App. 1991). The statute is designed to guard against self-interested testimony, and to that end, "[a]s death has closed the lips of one party, the law interpose[s] to close the lips of the other." Trubue, Davis & Co. v. Turner, 57 Tenn. 447 (Tenn. 1873).

B. Review of Statutory Elements

Three things must occur to exclude evidence by the Tennessee's Dead Man's statute: (1) an executor must be a party for or against whom judgment may be rendered; (2) the proposed witness must be a party to the lawsuit; and (3) the subject matter of the testimony must concern a transaction with or statement by a decedent. Atchley v. Rimmer, 255 S.W. 366, 369 (Tenn. 1974). If each of these elements is met, evidence of the decedent's alleged statements should be excluded by operation of the statute. Tennessee's Dead Man's statute is strictly construed by courts. Savage v. Savage, 4 Tenn. App. 277, 283 (1927).

The first element required to exclude evidence under the Tennessee Dead Man's statute is that the decedent's estate or duly appointed personal representative must be a party for whom judgment may be rendered. Witnesses are not prohibited from testifying about their interactions with a decedent if the decedent's estate is not a party to the lawsuit. Additionally, if there are multiple parties to a lawsuit, one of whom is a personal representative of an estate, party-witnesses may testify as to the statements by or transactions with a decedent as to each of the parties in the lawsuit other than the estate. Carman v. Huff, 227 S.W.2d 780, 785 (Tenn. Ct. App. 1949).

With regard to the first element, Tennessee courts also require that the testimony at issue concern a transaction that necessarily increases or diminishes the decedent's estate; it cannot merely concern the distribution of assets of the estate. Baker v. Baker, 142 S.W.2d 737, 744 (Tenn. Ct. App. 1940); Cantrell v. Estate of Cantrell, 19 S.W.3d 842, 846 (Tenn. Ct. App. 1999). For example, the statute would not come into play if a beneficiary sued the representative of a decedent's estate seeking to be included in the distribution of a finite pool of the estate's assets.

Second, Tennessee's Dead Man's statute only excludes testimony of parties to a suit. Id. On this element, Tennessee breaks with the more exclusionary Dead Man's statutes of other states. Some states' statutes prohibit statements by non-parties, even where the non-party does not have an interest in the litigation.

A common issue with regard to the second element of the statute concerns the degree to which the testimony of a company's agent is excluded if a company is a party to the lawsuit. The statute provides that "[i]f a corporation is a party, this disqualification [from testifying as to transactions with or statements by a decedent] shall extend to its officers of every grade and its directors." Tenn. Code. Ann. § 24-1-203. This provision should be read expansively not restrictively. In re Veal, 2004 Tenn. App. LEXIS 684 (Tenn. Ct. App. 2004). While the statute clearly extends to a corporation's officers and directors, Tennessee courts have refused to extend the statute's reach beyond the statutorily specified forms of agency. Estate of Pritchard v. McDonald, 735 S.W.2d 446, 448 (Tenn. Ct. App. 1986).

The third element requires that the subject matter of the expected testimony concern a transaction with or statement by the decedent. There is no controversy concerning the meaning of the word "statement" within the Dead Man's statute. It clearly encompasses personal communications between the surviving and deceased parties. Watts v. Rayman, 462 S.W.2d 520, 522 (Tenn. Ct. App. 1970). Accordingly, testimony by the proponent or any of its officers or directors concerning any alleged statements by the decedent is barred.

Within the meaning of the statute, a "transaction" may be either oral or written, and the term "encompasses a large range of excludable testimony on things done in the decedent's presence. 'Transactions with the intestate refer to things done in his presence, to which he might testify of his personal knowledge, were he alive.'" Burke, 836 S.W.2d at 101 (quoting in part Waggoner v. Dorris, 68 S.W.2d 142, 145 (Tenn. Ct. App. 1933).

C. Waiver of the Statute

Tennessee's Dead Man's statute is subject to waiver. The statute does not operate to exclude testimony elicited by the opposing party. Tenn. Code. Ann. § 24-1-203. In order to avoid waiver, one must be vigilant about objecting to testimony offered in contravention of the statute. Then, one must be mindful of the extent to which one later cross-examines the witness whose testimony he is seeking to exclude. If cross-examination after objection on direct is limited to matters covered on direct, the adverse party has not called the witness for purposes of the Dead Man's statute. Leffew v. Mayes, 685 S.W.2d 288, 293 (Tenn. Ct. App. 1984). But if further prohibited testimony is drawn out on cross-examination, the adverse party may be deemed to have called the witness, thereby waiving the protection of the statute. In re Estate of Russell, 52 Tenn. App. 320, 337 (Tenn. 1961).

Parties need not be concerned about waiving the Dead Man's statute through discovery. Eliciting deposition testimony otherwise excluded by the statute does not waive the protection of the statute. Ingram v. Phillips, 684 S.W.2d 954, 958-59 (Tenn. Ct. App. 1984).

If, however, a witness gives his deposition and later dies, the testimony of the deponent (now the deceased) is not excluded by the statute. Bernard v. Reaves, 178 S.W.2d 224, 227-28 (Tenn. Ct. App. 1943). In such a case, Tennessee courts have ruled that both parties have the benefit of their own testimony, so the purpose of the Dead Man's statute is not implicated.

IV.   Conclusion

Though Dead Man's statutes remain widely criticized for assuming that people are more dishonest than honest, create injustice for honest witnesses who have a legitimate claim against a decedent, and the general confusion caused by the variety of statutes across a dozen or so states, the Dead Man's statute remains an available tool or impediment, depending on your view, for Tennessee practitioners.