3.1 The Statutory Reformation of the Traditional Dead Man’s Statute in Washington, D.C. and Virginia
The dead man’s statute in Washington, D.C. and Virginia is different from the historical dead man’s statute in important respects. The Virginia formulation is as follows:
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 of 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. The phrase “from any cause” as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.
The provision “is designed to prevent a litigant from having the benefit of his own testimony when, because of death or incapacity, the personal representative of another litigant has been deprived of the testimony of the decedent or incapacitated person. The statute substitutes a requirement that testimony be corroborated in place of the harsher Common Law rule which disqualified the surviving witnesses for intent.” Diehl v. Butts, 255 V. 482, 488, 499 S.E. 2d 833, 887 (1998) (A case holding that a confidential relationship increases the degree of corroboration needed.) Additionally, the corroboration must be from a disinterested party. An interested person is one who is in some way financially interested in the outcome of the case. Stephens v. Caruthers, 97 F.Supp. 2d 698 (E.D. Va. 2000). Thus, it would not permit the spouse of a party from corroborating the testimony.
The D.C. formulation is as follows:
(a) In a civil action against:
(1) a person who, from any cause, is legally incapable of testifying, or
(2) the committee, trustee, executor, administrator, heir, legatee, devisee, assignee, or other representative of a deceased person or of a person so incapable of testifying, a judgment or decree may not be rendered in favor of the plaintiff founded on the uncorroborated testimony of the plaintiff or of the agent, servant, or employee of the plaintiff as to any transaction with, or action, declaration or admission of, the deceased or incapable person.
(b) In an action by subsection (a) of this section, if the plaintiff or his agent, servant, or employee, testifies as to any transaction with, or action, declaration, or admission of, the deceased or incapable person, any entry, memorandum, or declaration, oral or written, by the deceased or incapable person, made while he was capable and upon his personal knowledge, may not be excluded as hearsay.
One difference between Virginia and D.C. is that D.C. limits the dead man’s material from being admissible to only where the plaintiff or his/her agent testifies to the transaction. This is more of a “level playing field” approach.