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Univ. of South Carolina School of Law

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Monday, July 21, 2008

Dead Man's Drop: North Carolina Case Reveals That It Still Has a Dead Man's Statute

The recent opinion of the Court of Appeals of North Carolina in Smith v. Mauldin, 2008 WL 2736416 (N.C. App. 2008), provides a nice illustration of why most states have repealed their Dead Man's Statutes.  In Mauldin, Thomas Smith executed and delivered to his sister, Sue Page, a $50,000 promissory note secured by a deed of trust on real estate located in Holden Beach.  Following the death of Page, the two documents were discovered by her daughter, Melisa Page Mauldin, who notified Smith that she was executrix of her mother's estate and that, as sole heir, she was also the successor beneficiary to the note.  Smith responded by demanding the return of the documents on the ground that the loan had never been funded.  Smith thereafter filed a complaint seeking damages and possession of the documents.  At the close of Smith's evidence, however, the trial court granted Mauldin's motion to dismiss, finding that Smith failed to present any written or competent oral evidence that there was a failure of consideration for the note and deed of trust, and the Court of Appeals of North Carolina affirmed.

The reason that Smith failed to present any such evidence was not, however, because he lacked it; instead, North Carolina Rule of Evidence 601(c), its Dead Man's Statute, disqualified him from testifying on the matter.  Pursuant to North Carolina Rule of Evidence 601(c),

     "[u]pon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning any oral communication between the witness and the deceased person or lunatic."

In other words, the Rule bars testimony by an interested party in court proceedings concerning any oral communication between the witness and the deceased person. As I have noted before, the theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  As I have also noted, however, most states have abolished their Dead Man's Statutes. See Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007).  And the reasons that they have done so are directly applicable to Mauldin, assuming that Smith was being honest.  According to Page,

     "The main problems with the Dead Man's Statute are that it runs contrary to the philosophy underlying the general rule of witness competency and that it stifles potentially valid claims where an honest claimant has only his own testimony upon which to rely. The Statute operates to level the playing field by 'sealing the lips' of an interested survivor who wishes to testify about a transaction with a person whose 'lips have been sealed' by death.  The problem arises, then, when the claimant is honest, yet has only his own testimony on which to rely. Without his own testimony to prove his claim, the honest claimant is left without a remedy."

Under the common law, courts did the same to categories of individuals through a patchwork of rules deeming certain groups of individuals incompetent to testify at trial, including:  felons (and those convicted of crimes of crimen falsi) under the doctrine of infamy; spouses under the doctrine of coverture; and atheists on the grounds of irreligion.  These rules were meant to ensure that juries would base their verdicts on truthful evidence and to protect the souls of those who might otherwise be tempted to commit the mortal sin of perjury.

Of course, these competency rules have all been taken off the books, with courts and legislatures now generally allowing everyone to testify and then be impeached by opposing counsel.  The only Rules still around which deem certain groups of individuals incompetent to testify at trial are those which deal with the truly incompetent (Federal Rule of Evidence 601), lay witnesses who lack personal knowledge (Federal Rule of Evidence 602), those who refuse to take the oath or a nonreligious alternative (Federal Rule of Evidence 603), presiding judges (Federal Rule of Evidence 605) and seated jurors (Federal Rule of Evidence 606).  In light of these facts, I think that the time has come for North Carolina and the few states which still have Dead Man's Statutes to take them off the books.

-CM

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