EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, October 27, 2008

Dead Man Talking: Story By Fordham Professor Indicates That Court In Old Maryland Case Allowed Witness To Testify About What A Ghost Told Him

As I have noted before,

     "Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.  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.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury."

So, for instance, Maryland has a Dead Man's Statute in Section 9-116 of the Courts and Judicial Proceedings Article of the Maryland Code, which states that:

     "A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement."

But, Maryland's Dead Man's Statute is part of a dying breed.  Most states have repealed their Dead Man's Statutes, see e.g., Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007), which begs the question of whether Maryland will follow suit in the near future.  According to a story by Fordham University History Professor Elaine Forman Crane, however, a case from Maryland's past reveals that the state apparently did not always need this statute.

     The story involved Thomas Harris, a farmer from Queen Anne's County in Maryland, who had four illegitimate children with his lover, Ann Goldsborough. Harris' will said that when he died, his brother was to sell all of Harris' property and give the money to his children, but the brother kept the cash. That's when, according to William Briggs, Harris' best friend, Harris' ghost met with him and told him to tell the brother that the money should go to Harris' children.  Apparently, Briggs then relayed this message to the brother, but the brother died before the money was transferred, and the brother's wife did not want to cough up the money.  A lawsuit ensued, and, according to Crane's story, the court allowed Briggs to testify regarding his encounters with Harris' ghost, whom he claimed spoke in a low, sometimes incoherent voice.

According to the story on Crane's story,

     "[t]he case's depositions, filings and judgment are nowhere to be found, so it's not exactly clear how the courts decided this spooky case. But the story gathered some steam a decade later in the national political scene when the Federalists revived the case to disgrace the opposing Republican party."

Courts who still have their Dead Man's Statutes often defend them on the ground that they protect the deceased, who cannot speak from the grave.  If Crane's story was accurate, however, that is exactly what the Maryland court allowed, which would obviate the need for such a statute.



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