Colorado evidence rule – the “Dead Man’s Statute”

Posted by: Sep 27, 2018By Brian Stutheit

There are many rules of evidence. In general, their purpose is to make the presentation of testimony or records fair, and reliable. One rule of evidence which lawyers often encounter is called the “Dead Man’s Statute.”

Until recently, a party to a case about a decedent’s estate was not allowed to give self-serving testimony about what a now-deceased person (the “dead man”) allegedly said. The objective of the “dead man’s” rule was to protect against perjury by parties who might slant their
testimony in their own favor if they were permitted to testify about a transaction or event,without fear of contradiction by the deceased. In other words, the rule is designed to prevent perjury and foil false claims or defenses.

In recent years, the dead man’s statute has been enlarged. Now, testimony by a party who has something to gain about what a deceased allegedly said is prohibited in any civil case -not just an estate dispute. The prohibition applies not only to supposed conversations with a now dead person, but also to conversations with any person who is not competent to testify. So, for example, a party cannot testify as to what someone in a coma said. The statute also prohibits testimony by any witness “in interest with a party” in the case. In a 2018 decision, a young man brought a malpractice lawsuit against the estate of his dead doctor. His claim was that the doctor did not give him informed consent about risks of a medication the doctor prescribed. The young man’s mother tried to testify about conversations she had with the dead doctor prior to and during her son’s treatment. The mother was not allowed to testify, because she had “the same interest” as her son. In that malpractice case, one might say the dead man’s statute killed the informed consent claim.

There are exceptions to the dead man’s statute. One exception allows testimony about what the dead person or now incompetent person said, where the testimony concerning the oral statement is “corroborated by material evidence of a trustworthy nature.”