3.2.1 Dead Man’s Statute is Strictly Construed

The dead man’s statute may have the purpose of equalizing the playing field but it is narrowly construed because it is an exception to the general rule permitting evidence to be heard:   “The statute is an exception to the general rule that all witnesses are competent to testify … and is strictly construed ‘in order to disclose as much evidence as possible’ without ignoring the purpose of the statute. … In close cases involving the dead man’s statute, Maryland precedent consistently has favored the admission of testimony.”   Walton v. Davy, 86 Md.App. 275, 285, 586 A.2d 760, 765 (1991).

One example of the narrow construction of the dead man’s statute is reflected by the case Reddy v. Mody.   Reddy involved three causes of action in a medical malpractice case that resulted in death.   The first cause of action was an action by the decedent’s estate and the other two causes of action were by the decedent’s husband and the decedent’s child for wrongful death.   The court held that the dead man’s statute did not apply as to the wrongful death actions because those actions were not brought by or against the personal representative.   The estate case, on the other hand, fell directly into the statute.   In Reddy, the testimony of a nurse (an employee of the defendant hospital) and the testimony of the attending physician (one of the defendants) were admitted.   On appeal, the court held that the testimony of the nurse was admissible but not that of the doctor:

The first two issues raised by the appellants attack the trial court’s ruling that Nurse Nella Williams was a competent witness.   It is the appellants’ position that the working relationship of the appellee, Dr. Mody, and Nurse Williams was such as to render her a “party” for the purposes of the Dead Man’s Statute and, therefore, she was rendered incompetent to testify.   We disagree.

The purpose of the Statute, as was pointed out above, is to prevent the surviving party from having the benefit of his own testimony where, by reason of the death of his adversary, his representative is deprived of the decedent’s version of the transaction or statement.   Ortel v. Gettig, 207 Md. 594, 116 A.2d 145 (1955).   This disability, while protecting the deceased’s estate, can create a great injustice to the survivor. As was stated in C. McCormick, Evidence, § 65 (2d ed. 1972):

“Most commentators agree that the expedient of refusing (to) listen to the survivor is, in the words of Bentham, a ‘blind and brainless’ technique.   In seeking to avoid injustice to one side, the statute-makers have ignored the equal possibility of creating injustice to the other.   The temptation to the survivor to fabricate a claim or defense is obvious enough, so obvious indeed that any jury will realize that his story must be cautiously heard.”

Faced with the uncertainty and injustice created by the Dead Man’s Statute, the Maryland courts have sought to construe strictly the Statute in an effort to disclose as much evidence as the rule will allow.[1]