Recent Fairfax Circuit Court Opinion Details Breadth of the Dead Man’s Statute Hearsay Exception

The Fairfax Circuit Court recently issued an opinion addressing questions related to Virginia’s Dead Man Statute that arose in two separate cases.[1] Section 8.01-397 of the Virginia Code, referred to as the Dead Man’s Statute, applies when a lawsuit is bought by or against someone who is incapable of testifying, oftentimes a decedent. The statute contains a corroboration requirement which provides that a judgment may not be entered in favor of an adverse or interested party based on their uncorroborated testimony. The statute also contains a hearsay exception permitting the introduction into evidence of entries, memoranda, and declarations by a decedent if they are relevant.

The Fairfax Circuit Court addressed whether a decedent’s statement must also satisfy other evidentiary rules to be admissible under the hearsay exception. For instance, is a decedent’s statement still admissible if it lacks foundation, contains hearsay within hearsay, or is one that the decedent would have been prohibited from offering if alive? The court first noted that the statute only explicitly lists relevance as a requirement to admissibility. The court then looked to the case of Johnson v. Raviotta for additional guidance.[2]

There, the Supreme Court of Virginia addressed whether Section 8.01-397.1 of the Virginia Code—which states that habit evidence is relevant even if not corroborated—eliminates the need for corroboration under the Dead Man’s Statute. The Supreme Court held that an adverse party’s testimony of habit still requires corroboration under the Dead Man’s Statute. The Fairfax Circuit Court noted that because the Dead Man’s Statute corroboration requirement superseded the evidentiary rule of habit in Johnson, the Dead Man’s Statute hearsay exception similarly supersedes other evidentiary rules.

Accordingly, as long as a decedent’s statement is relevant, it is admissible under the Fairfax Circuit Court’s interpretation of the Dead Man’s Statue. The court acknowledged that as a result, testimony from the decedent’s deposition (conducted before her death) without proper notice to opposing counsel was still admissible even though it violated Rule 4:5 of the Rules of the Supreme Court of Virginia. Although troubled by this result, the court noted that when the General Assembly drafted the statute it implicitly balanced the unfairness of introducing “a plethora” of the decedent’s unreliable hearsay statements against the unfairness of a decedent being unable to testify.

While holding the evidence admissible, the court noted that the weight to assign such statements was within the fact finder’s purview. Therefore, applying this court’s analysis, the focus of a party defending against evidence subject to the Dead Man’s Statute should be on the evidence’s credibility rather than the evidence’s admissibility.

[1] Geneva Enterprises, Inc. et. al. v. Bavely, No. CL-2018-18124 (Fairfax Cnty. Sept. 21, 2022); Lohman v. Reston Hospital Center, LLC, et al., CL-2017-14850 (Fairfax Cnty. Sept. 21, 2022).

[2] 264 Va. 27, 563 S.E.2d 727 (2002).