8.5 Opening the Door to Excluded Evidence

The dead man’s statute explicitly permits otherwise excludable evidence to be admitted if the door is opened.   The statute holds that such testimony is excluded “unless (the party is) called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement.”   Thus, if a party is cross-examined by an adverse party in regard to the transaction with the decedent then the protection of the dead man’s statute has been waived.[1]   Additionally, the Maryland dead man’s statute applies only to “testimony of a party to a cause which would tend to increase or diminish the estate of the decedent.”[2]   Thus it should not apply in any suit among various legatees as to what is to be distributed to them.