Articles Posted in Evidence

Virginia’s “Dead Man’s Statute,” found at Va. Code § 8.01-397, does two things: (1) it provides a hearsay exception allowing certain statements to come into evidence when the person who made them is dead or otherwise incapable of testifying; and (2) it prohibits an adverse party in litigation from winning a judgment based solely on uncorroborated testimony that can’t be rebutted due to the other party’s incapacity. The statute makes it more difficult to win a case against someone who has died. If key testimony will relate to conversations between the decedent and the adverse party, or to events that took place in the decedent’s presence, the law does not permit the surviving party to win a judgment based solely on his own uncorroborated testimony when the decedent is not available to challenge that testimony.

The Dead Man’s Statute provides in material part:

In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party.

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