Dead Men Still Tell Tales
The old saying goes "Dead men tell no tales," but when it comes to litigation in Connecticut, the dead keep talking. Indeed, after the recent Supreme Court decision of Dinan v. Marchand,[1] there is little to stop them.
The so-called "dead man's statute,"[2] C.G.S. § 52‑172, creates an exception to the well-known prohibition against hearsay. First enacted by the Connecticut legislature in 1850, first interpreted by the Connecticut Supreme Court in 1857,[3] and most recently explained by the Court last year in Dinan, the statute creates a hearsay exception permitting the declarations of the deceased to be offered into evidence.[4] Connecticut is believed to be the first state to have enacted such an evidentiary exception.[5]
Although the statute is old and has been revisited many times by Connecticut courts, not always has there been clarity and consistency on its interpretation. Most recently, the Supreme Court in Dinan overruled a 2000 Appellate Court decision that seemingly attempted to reign in the broad applicability that had inured to the statute through years of interpretation.[6]
This article provides a brief historical background of dead man's statute, discusses its elements and driving policy considerations, and reviews the recent corrections and clarifications set forth by the Supreme Court in Dinan.
History and Scope
The dead man's statute, as it was first enacted, provided as follows: [I]n suits by or against the representatives of deceased persons, the entries and written memoranda of the deceased relevant to the matter in issue, may be received as evidence; subject in regard to weight and credit, to the rules under which the testimony of parties and other interested evidence is received.[7]
The original statute was passed in response to a statute enacted two years earlier that "allowed parties and other persons interested in suits to be witnesses."[8] The concept expressed in that earlier statute is now a fundamental part of the law of evidence, but shortly after the statute was passed it was recognized to give "living parties a very great advantage over representatives of the dead,"[9] since the living could testify, but the deceased were forever silent. The dead man's statute obviated this mortal advantage[10] by permitting the deceased the right to "speak … from beyond the grave."[11]
During the past 156 years that Connecticut litigators have used the statute to conjure up the testimony of the dead, the legislature has added to the original bones of the statute, while the courts have added the flesh. The statute, presently short-titled "Declarations and memoranda of deceased persons," provides as follows:
In actions by or against the representatives of deceased persons, and by or against the beneficiaries of any life or accident insurance policy insuring a person who is deceased at the time of the trial, the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence. In actions by or against the representatives of deceased persons, in which any trustee or receiver is an adverse party, the testimony of the deceased, relevant to the matter in issue, given at his examination, upon the application of such trustee or receiver, shall be received in evidence.[12]
Under the dead man's statute, the deceased's right to speak from the grave is limited to only two basic requirements: first, the deceased may speak only in an action by or against the deceased's representative or insurance beneficiary who is acting in the interests of the deceased's estate; and second, the declarations must be relevant to the matter at issue.[13] There is no limitation as to who the medium (or witness) for this communication from the spirit world may be.[14]
Though these two basic requirements for admissibility appear unshrouded and straightforward, what is less certain is when privileges, other evidentiary rules, and the underlying policy will be given effect to prevent admission of a deceased's statements. Provided, however, that the two requirements are met, generally the deceased will be free to speak from beyond their graves, and do so unfettered by the earthly indignity of cross-examination. Although the statute does not actually proscribe cross-examination, as the medium may be questioned as to what the deceased told him or her, as a practical matter the examination is unlikely to effectively test the veracity of the deceased's statements. After all, the witness may have no first-hand knowledge of the facts and circumstances about which the deceased spoke. Instead, the cross-examination is primarily effective to test the medium's knowledge and comprehension of the deceased's statements,[15] and to ferret out any bias that the medium may hold.
The dead man's statute is worded broadly, has been interpreted broadly and, indeed, the case law reveals little more than a specter of limitation on the nature, type or quality of the evidence that may be admitted under it. "The statute has no reference at all to the kind of property to be recovered, or the subject matter of the suit, but simply to the relation of the parties (or one of them) to the deceased."[16] Moreover, the dead man's statute has no temporal limitation, unlike the deceased themselves. "Days, weeks, even years may intervene" and the words of the deceased may be heard.[17]
Virtually any form of communication by the deceased may be entered into evidence under the statute: account books in the decedent's handwriting;[18] endorsements of interest on a note;[19] letters;[20] written statements to counsel;[21] and the representative may simply offer the substance of the deceased's statements when the representative cannot recall the deceased's exact words.[22] The statute even applies to non-verbal communication. In the case of Facey v. Markle, the statute was held to apply to the decedent's nod of the head while on his deathbed.[23] The plaintiff unsuccessfully argued that the statute should not be applied to "monosyllabic responses, whether by speech or sign, to questions propounded by another."[24] In rejecting this proposed limitation, the court held that "[t]he statute is broad enough to include ordinary modes of communication including a nod of the head."[25] It further held that any uncertainty as to the representative's understanding of the communication went to the weight of the testimony, not its admissibility.[26]
The only apparent limitation that the court has put on admissibility of evidence under the statute is that the offered evidence cannot work to thwart the policy of the statute of "putting the decedent on equal footing with the living."[27]
Actions By or Against the Deceased's Estate
The dead man's statute protects the deceased's estate for the "benefit of those who represent the deceased in taking some portion of his estate…."[28] As such, a witness is only permitted to testify as to a deceased's statements in suits in which one of the parties is being sued or is defending in the interest of the deceased's estate.[29] For instance, in an action between parties who both claimed title to land under deeds from the decedent, one of whom was the decedent's son, the statute did not apply because the son was protecting his own interests and not those of the decedent's estate.[30] "The right to bring [the action] and the right to defend, did not result from the death of the declarant."[31]
Also, in Pender v. Matranga, the Appellate Court determined that the statute did not apply, because the action was not prosecuted or defended in the interest of the decedent's estate.[32] The plaintiffs had brought an injunction action to halt the defendants' construction of a roadway on easements over the plaintiffs' property. The plaintiffs conceded the existence of the easements, but disputed their scope. One of the plaintiffs, who had inherited the property from her mother, was asked at trial whether she recalled her late mother telling her the reasons and purposes for the agreement giving rise to the easements. The defendants objected to the late mother's declarations being admitted into evidence. The objection was sustained. The Appellate Court affirmed the trial court, and held that the proposed testimony did "not fall within the bounds of the dead man's statute."[33] The suit was instituted to protect the heir's interest in the property, not the decedent's estate.[34]
Representatives of Deceased Persons
The language "representatives of deceased persons" has long been held to include legal representatives who take some part of the decedent's estate, either as devisees, heirs, distributees, and purchasers by will, as well as personal representatives, such as executors and administrators.[35] For example, in an action seeking the enforcement of a constructive trust and a transfer of title, the defendant who took title to the property as a devisee of her deceased husband was designated a representative.[36] Likewise, in an action against a defendant who died pending suit, the administrator who continued to defend the action was deemed the deceased's representative.[37]
The phrase "representatives of deceased persons," does not encompass purchasers by contract. In the case of O'Brien v. Coburn, the plaintiff and defendant were owners of adjoining property conveyed to them by a common grantor.[38] The plaintiff's property included a shop and garage on the rear of the property, which the grantor had used as a tool shop. The only access to the shop and garage was over a driveway on the defendant's property. Neither the plaintiff's nor the defendant's deed made any mention of the easement. In 1993, the defendant sought to obstruct the plaintiff's use of the driveway. In response, the plaintiff filed a complaint claiming an easement and seeking injunctive relief.
At trial, the plaintiff gave testimony – over the defendant's objection – that the grantor had stated to him that a right-of-way would be provided for in the defendant's deed. On appeal, the Appellate Court held that it was error to admit the statement because the plaintiff was only a purchaser by contract and thus not a representative of the deceased grantor.[39]
Dinan Drives A Stake Through Pender
Although Pender is notable as an example of when the dead man's statute will not apply, it is most notable now for the fact that a portion of its holding has been expressly overruled by the Supreme Court in Dinan v. Marchand.[40] More particularly, in Pender, the Appellate Court grafted a new requirement on admissibility of evidence under the statute, pronouncing that "…the declarant [must] be a representative of the decedent…."[41] This requirement appears to have been an attempt to limit the scope of the statute. Pender, however, was the first case to inject such a requirement onto the dead man's statute, and since the condition seemed to have no source in the statutory language, it caused widespread confusion among practitioners attempting to use it.
In Dinan, the Connecticut Supreme Court expressly overruled the Pender requirement that the declarant be a representative of the decedent, stating, "… we decline to engraft additional requirements onto clear statutory language. This Court will not substitute its own language for that chosen by the legislature."[42]
Dinan also set forth a comprehensive analysis and restatement of the law under the dead man's statute. In so doing, the court reemphasized the statute's remedial nature and primary purpose of creating evidentiary equality between the living and the dead.[43]
Applicability of Privileges and Evidentiary Rules
After Dinan, it is unclear whether and when other evidentiary rules and privileges will apply to the declarations of the deceased. As stated in Dinan, "the court has admitted evidence that satisfies the dead man's statute even when such evidence otherwise may have been barred under other rules of evidence."[44] Yet, later in the opinion, the Court quoted from Doyle v. Reeves, as follows: "[w]hile the statute is entitled to, and has been accorded, a liberal construction having in view its purpose and the mischief it was designed to remedy, it does not follow that the privilege conferred by it is entirely without exceptions or limitations in operation…." [45]
In practice, evidence offered under the dead man's statute has been more often admitted than excluded. The current dead man statute uses the discretionary word "may" in its first (more often used) sentence, and the mandatory language "shall" in its second.[46] Thus, the statute specifically allows for a discretionary application, logically guided by policy. This allowance for discretion explains, in part, what may superficially appear to be an inconsistent application of the statute over the years. The touchstone for admissibility is whether equality between the living and dead is furthered or frustrated by admissibility of the evidence irrespective of otherwise applicable evidentiary rules or privileges. When it is furthered, evidence is admitted; when it is frustrated, evidence is excluded.
For instance, in Rowland v. Philadelphia, Wilmington & Baltimore R. Co., the decedent had given deposition testimony as to his injuries, but he had also previously produced a written memorandum on the same matter.[47] Even though the two basic requirements for admissibility under the statute seemed to have been met, the Supreme Court held that the memorandum should not be admitted because the decedent had already been a witness on his behalf and, thus, admitting the evidence did not further the policy of putting the decedent on equal footing with the living. As the court put it, the "reason" for applicability of the statute was not present.[48]
Similarly, in Doyle v. Reeves, the Supreme Court did not permit evidence offered under the dead man's statute, but in that case the evidence was excluded by the attorney-client privilege.[49] In Doyle, the plaintiff sued the deceased's estate and, over the objection of the defendant, introduced testimony by the deceased's attorney as to the terms of an unexecuted will. On appeal, the plaintiff argued that the testimony introduced was properly admissible under the dead man's statute. The Supreme court disagreed, refusing to strip the decedent of his attorney client privilege, which would have been available to him had be been present to defend himself. Based on Doyle, it appears that statements made to an attorney are one of the few things that a person will take to the grave.
The unifying theme between Rowland and Doyle is that of creating evidentiary equity between the living and the dead. In Rowland, admitting the evidence would have given the deceased an advantage over the living. On the other hand, in Doyle, stripping the deceased of his attorney-client privilege by operation of the dead man's statute would have given the plaintiff an advantage she would not have had if the deceased was present to defend himself.
Careful! Double Hearsay Isn't Dead – Yet
Counsel should be careful not to overstate the power of the dead man's statute. Although The Connecticut Law Reporter's September 25, 2006, brief digest of the Dinan opinion states that, "The Supreme Court Holds that the Dead Man's Statute Permits the Admission into Evidence of Any Statements by a Deceased Person, Even Statements Containing Hearsay Within Hearsay . . . ," the Court did not expressly state that conclusion. Indeed, the Supreme Court's holding in Dinan with regard to the dead man's statute appears to be limited to the second level of hearsay.[50]
Furthermore, the Law Reporter's statement runs directly counter to Brown v. Butler, a double hearsay case that held that the dead man's statute does not solve the double hearsay problem.[51] The fact that Dinan did not expressly overrule Brown, especially since it took the opportunity to overrule Pender, suggests that Butler is still good law.
In Brown, the plaintiff, who was also the administrator of the deceased's estate, commenced suit to compel the defendant to transfer her interest in a schooner named the H.H. Hanscom. At issue was whether a bill of sale for the interest had properly passed to the defendant. At trial, the court received testimony from the plaintiff that the decedent had made certain statements about the transfer. The statements were not made, however, directly to the administrator. Rather, they were made to a third-party who also happened to be deceased at the time of trial. It was the third-party who passed them to the administrator. On appeal, the Supreme Court held that it was improper to admit the decedent's statements. As the Court bluntly put it, "The dead cannot … be made to speak through the dead."[52] Said differently, the administrator's testimony contained improper double hearsay,[53] and the dead man's statute removes only one level.
Dinan involved a similar double hearsay problem. In Dinan, the deceased's widow challenged the deceased's will on the grounds of undue influence alleged to have been exerted by his grown daughter from a prior marriage. The plaintiff sought to introduce (through her own testimony) a statement that the decedent had made to her regarding threats the daughter had made to him. The plaintiff claimed that the statements were admissible on the first level of hearsay because they were offered to show their effect on the testator not for their truth; as to the second level, the statements were claimed admissible under either the state of mind exception or the dead man's statute.[54]
The Appellate Court ruled that on the first level hearsay, the statements were, indeed, properly offered for the nonhearsay purpose of showing the effect on the testator.[55] As to the second level, the Appellate Court summarily rejected application of the dead man's statute, and then rejected the state of mind claim as well.[56] The Supreme Court reached a different conclusion and undertook a different analysis.
As to the first level of hearsay, the Supreme Court held that the "Appellate Court properly concluded that [the statements] had a proper nonhearsay use to show their effect on the testator."[57] It was not until it reached the second level of hearsay that the Supreme Court resolved the matter under the dead man's statute.[58] This was consistent with the certified appeal question of "whether the Appellate Court properly concluded that . . . the testator's recounting of those statements to the plaintiff was inadmissible hearsay."[59] In short, the specific question of whether the dead man's statute resolved a double hearsay problem was not before the Court.
The history of the dead man's statute rests deep in the early, fundamental evidentiary principles of Connecticut jurisprudence. Unlike its beneficiaries, the statute remains alive and, through interpretation, has emerged stronger and with a renewed vitality. There is every indication that, for the future, the dead man's statute will remain a monument to the principle that death will not silence the dead. In Connecticut, dead men still tell tales.
If your goal is to thwart the admission of evidence offered under the dead man's statute, argue that the evidence will not promote evidentiary equity between the deceased and the adverse party. Also, do not overlook other rules of evidence; they may not be dispositive, but they will be persuasive.
[1] 279 Conn. 558 (2006).
[2] Contrary to its familiar name, the statute applies to women as well as to men.
[3] Douglas v. Chapin, 26 Conn. 76, 92 (1857).
[4] 279 Conn. at 573; C. Tait & J. LaPlante, Connecticut Evidence, § 8.47.5-8.47.11 (3d Ed. 2001).
[5] Craft's Appeal from Probate, 42 Conn. 146, 154 (1875) (Quoting from appellant's brief: "Prior to 1850, such memoranda were inadmissible as evidence in this state. Nor are they admissible in any other state of the Union."). In 1875, the date of Craft's Appeal, the United States was comprised of only 38 States (including Colorado which had taken steps to become a State), and 8 Territories.
[6] 279 Conn. at 577.
[7] General Statutes, Ch. 10, Sec. 134 (1854).
[8] Bissell v. Beckwith, 32 Conn. 509, 516 (1865).
[9] Id.; see also Rosales v. Lupien, 50 Conn. App. 405, 408 (1998) ("The dead man's statute was intended to remove the unfair advantage previously possessed by living litigants as against the representatives of deceased persons.").
[10] Bissell, 32 Conn. at 516.
[11] Graybill v. Plant, 138 Conn. 397, 405 (1951).
[12] Conn. Gen. Stat. § 52-172 (2006).
[13] Dinan, 279 Conn. at 576.
[14] See id. at 577 ("In accordance with [the] limited requirements [of the dead man's statute], we have previously recognized that a third party who was not an heir or other representative of the decedent's estate . . .could invoke the statute to testify as to the decedent's statements.").
[15] See Facey v. Merkle, 146 Conn. 129, 134 (1959).
[16] Pixley v. Eddy, 56 Conn. 336, 338‑39 (1888).
[17] Craft's Appeal, 42 Conn. at 154.
[18] Setchel v. Keigwin, 57 Conn. 473, 478-79 (1889).
[19] See Caitlin v. Haddox, 49 Conn. 492, 495 (1882).
[20] See Bissell, 32 Conn. at 519 (holding that the admission of the letters were not squarely before the court, but that they were inclined to agree that the letters were properly admissible).
[21] See Rowland v. Philadelphia, Wilmington & Baltimore Railroad, 63 Conn. 415, 416-418 (1893) (holding that the statements were not admissible, only because the plaintiff had already given testimony on the same matters).
[22] See Bulkeley v. Brotherhood Accident Co., 91 Conn. 727, 730 (1917).
[23] 146 Conn. 129, 133-34 (1959).
[24] Id. at 134.
[25] Id.
[26] See id.
[28] Lockwood v. Lockwood, 56 Conn. 106, 109 (1887).
[29] Doolan v. Heiser, 89 Conn. 321, 323 (1915).
[30] Lockwood, 56 Conn. at 109-10.
[32] 58 Conn. App. 19, 29 (2000), overruled by Dinan, 279 Conn. 558 (2006).
[33] Id. at 29.
[35] Baxter v. Camp, 71 Conn. 245, 252 (1898); Pixley, 56 Conn. at 338-39; Bowen v. Ide, 109 Conn. 307, 311 (1929); O'Brien v. Coburn, 46 Conn. App. 620, 632, cert. denied, 243 Conn. 938 (1997).
[36] Galuck v. Galuck, 30 Conn. App. 305, 317 (1993).
[37] Walter v. Sperry, 86 Conn. 474, 476-77 (1913).
[38] 46 Conn. App. 620, 622, cert. denied, 243 Conn. 938 (1997)
[40] Dinan, 279 Conn. at 577-78.
[41] 58 Conn. App. at 28.
[45] Id. at 576, citing Doyle, 112 Conn. 521, 526 (1931).
[46] Conn. Gen. Stats. § 52-172.
[47] 63 Conn. at 416.
[48] Id. at 417-18.
[49] 112 Conn. at 526.
[50] See Dinan. 279 Conn. at 571 ("we consider whether the Appellate Court properly concluded that . . . the testator's recounting of those statements to the plaintiff was inadmissible hearsay").
[51] See Brown, 71 Conn. 576, 581-82 (1899).
[53] See C. Tait & J. LaPlante, Connecticut Evidence, § 8.47.5.
[54] See Dinan. 279 Conn. at 572, 573 n. 14.
[56] Id. at 573 n.13.
[59] Id. at 570- 71.