Understanding Virginia’s “Dead Man’s Act”

The Virginia Rules of Evidence contain a detailed set of requirements that govern what kind of information may be considered by the jury when a personal injury case is tried in court.  One such rule, derived from a statute commonly referred to as the “Dead Man’s Act,” applies when one of the parties to the lawsuit has died prior to the trial.[1] It is important to understand how the Dead Man’s Act works in such cases because it can change the type of evidence that the jury will be allowed to hear and consider.

At common law (prior to the enactment of Virginia Code § 8.01-397), in a case in which either the plaintiff or the defendant died prior to trial, the surviving party was not permitted to testify in court. The reasoning behind this rule was that it would be unfair for the surviving party to have the benefit of his own testimony when the deceased party is deprived of the opportunity to tell his or her version of the events.[2]  With the enactment of the Dead Man’s Act, the General Assembly did away with the prohibition against receiving the testimony of the surviving party into evidence but in its place established two added requirements designed to ensure fairness to the deceased party.

The first rule is that no judgment can be awarded against a deceased party based on the uncorroborated testimony of an adverse party or another interested party.[3]  The Virginia Supreme Court has explained that the level of corroboration required varies depending on the facts of each particular case.

In general, corroborative evidence is evidence which tends to independently confirm and strengthen the testimony of the surviving party as to some material issue.[4] Corroborative evidence may be circumstantial, and it need not itself be sufficient to support a verdict for the surviving party.[5] If the judge at trial determines that the surviving party has not presented even a scintilla of corroborative evidence during the trial, the judge may instruct the jury not to consider the surviving’s witness’ testimony.[6]

Note that in cases in which there was a “confidential relationship” between the surviving witness and deceased party, a heightened degree of corroboration is required to support the testimony of the surviving witness.[7]  For example, in a medical malpractice case in which the physician-patient relationship existed between the deceased patient and the defendant physician, the court will require an added degree of corroboration of the testimony of the defendant physician due to the confidential relationship that existed between the parties at the time of the medical treatment at issue in the case.[8]

The second component of the Dead Man’s Act provides that, regardless of whether the surviving witness testifies, prior statements or writings made by the deceased party may be admitted into evidence.[9] This rule is significant because, in the absence of the Dead Man’s Act, such evidence would be subject to exclusion under the hearsay rule, which generally prevents out-of-court statements from being admitted into evidence at trial.[10]  In this way, the Dead Man’s Act creates an exception to the normal rules of evidence in an effort to ensure that both sides of the story can be told where one party to the case is deceased.

Types of civil lawsuits in which the Dead Man’s Act might be applied  include personal injury suits in which the defendant driver has passed away before trial, or wrongful death actions in which the beneficiaries of a deceased individual seek to recover against the negligent defendant who caused the death.  It is important for an attorney to understand the special evidentiary rules that apply under the Dead Man’s Act in these types of cases. 

About the Author: David M. Irvine is an experienced trial attorney focusing his practice on personal injury law working in the firm’s Charlottesville, Virginia office. He has handled cases involving car accidents, catastrophic injuries and wrongful death and has litigated cases across the Commonwealth on behalf of deserving clients. David has published on topics related to litigation in wrongful death cases and trial procedure and regularly speaks on litigation topics.

[1] See Va. Code § 8.01-397; Va. S. Ct. R. 2:804(b)(5).

[2] See Diehl v. Butts, 255 Va. 482 (1998).

[3] See Va. Code § 8.01-397; Va. S. Ct. R. 2:804(b)(5).

[4] See Rice v. Charles, 260 Va. 157 (2000).

[5] Keith v. Lulofs, 283 Va. 768 (2012); Penn v. Manns, 221 Va. 88 (1980).

[6] Johnson v. Raviotta, 264 Va. 27 (2002).

[7] See Vaughn v. Shank, 248 Va. 224 (1994).

[8] See Diehl, 255 Va. at 489.

[9] See Va. Code § 8.01-397; Va. S. Ct. R. 2:804(b)(5).

[10] See Va. S. Ct. R. 2:802.