Dead Man’s Statute

By Sally A. Roberts

            It is fundamental in evidentiary law that an out-of-court statement that is offered to establish the truth of the facts contained in the statement is hearsay and is generally inadmissible unless an exception to the general rule applies.[1]  The Dead Man’s Statute is an exception to that rule.[2]  Connecticut’s Dead Man’s Statute, Conn. Gen. Stat. § 52-172 provides in relevant part:

In actions by or against the representatives of deceased persons, and by or against the beneficiaries of any life or accident 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.

            The purpose of the Dead Man’s Statute is to create an equal footing between the living and the dead parties.  Although it is to be interpreted liberally, every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker had died.[3]  Conn. Gen. Stat. § 52-172 is not a carte blanche for the admission of statements by a decedent in an action brought by or against a representative of the decedent.[4]  This is particularly true where its admission would violate another well established rule of evidence.[5]

            “Hearsay” means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.[6]  Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book.[7]  Hearsay within hearsay is admissible only if each part of the combined statements is independently admissible under a hearsay exception.[8]  When a statement is offered that contains hearsay within hearsay, each level of hearsay must itself be supported by an exception to the hearsay rule in order for that level of hearsay to be admissible.[9]

            The Dead Man’s Statute, as an exception to the hearsay rule, evidences a reasoned judgment that in certain situations cross-examination of the decedent is not required for the fair administration of justice.  The rule and all other hearsay exceptions are rooted in the notion that they contain a sufficient guarantee of trustworthiness to serve as a sufficient surrogate for cross-examination of testimony in court.  However, cross-examination is not abolished.

            The very purpose of the rules of evidence is to bar unreliable evidence offered to influence the trier of fact.  Although an ancient doctrine, the hearsay rule is based on the sound principle that all testimony is best considered if subject to cross-examination, our law’s means to arrive at the truth.  For two centuries common law judges and lawyers have regarded the opportunity of cross-examination as an essential safeguard of the accuracy and completeness of testimony.[10]  Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.[11]

            In Rosales v. Lupien, 50 Conn. App. 405 (1998), the plaintiff, a nurse’s aide, provided companionship and light cleaning beginning in December 1993 for the original defendant, David W. Lupien, Jr., who was bedridden.  During this time, the plaintiff stayed at Lupien’s home seven nights a week.  On May 28, 1994, the plaintiff was injured in a fall while moving a washing machine into Lupien’s basement.  She claimed that her fall was caused by defects in the basement staircase.  Lupien died on April 30, 1996, and the defendant, Thomas Foley, administrator of Lupien’s estate, was substituted as the defendant.

            The plaintiff sought to introduce evidence of certain statements made by Lupien before his death.  These included oral statements that Lupien (1) apologized for the condition of the stairs, (2) admitted responsibility for the plaintiff’s injuries, (3) offered to pay the plaintiff’s medical bills, (4) urged her to make a claim against his homeowner’s insurance policy and (5) offered to split the insurance proceeds with her.

            The trial court admitted into evidence Lupien’s apology for the fall and his statements that he knew the steps were bad and intended to have them fixed.  The court, however, did not admit Lupien’s statements concerning offers to pay the plaintiff’s medical bills or his statements regarding the homeowner’s policy and proceeds from it.

            The plaintiff contended that the excluded statements were admissible under the Dead Man’s Statute.  The defendant argued that the statements were properly excluded because they were offers of compromise.  It has long been the law that offers of compromise are not admissible on the issue of liability.[12]  Where it is not clear whether a statement is an offer of compromise or an admission of liability, and the motive of the declarant is subject to speculation and conjecture, the statement must be excluded.  Unlike Lupien’s apology and his statements concerning the poor condition of the stairs, his statements about the homeowner’s policy and paying the plaintiff’s medical bills were not clearly admissions of liability. Rather, they were more accurately characterized as offers of compromise and the Appellate Court concluded that hence were not admissible.

            The Dead Man’s Statute was intended to remove the unfair advantage previously possessed by living litigants as against the representatives of deceased persons.[13]  Because the statute is designed primarily for the benefit of the decedent, to deny the decedent the benefit of an evidentiary rule, such as the exclusion of offers of compromise, to which he would have been entitled had he lived, would defeat the purpose of the statute.[14]

            This interpretation of the statute is further supported by Plisko v. Morgan, 148 Conn. 510 (1961). In Plisko, a negligence action for the death of the plaintiff’s decedent, a statement of the decedent was offered as evidence under the Dead Man’s Statute.  The trial court excluded one sentence of the statement because it gave the decedent’s opinion about what caused him to fall.  The trial court reasoned that such an opinion would not have been admissible had the decedent been alive and able to testify.  The Connecticut Supreme Court reversed the trial court, holding that the Dead Man’s Statute should be liberally construed and the fact that the statement contained an opinion did not make it inadmissible.  Thus, Plisko interpreted the statute liberally so as to benefit the decedent, and not put him at a disadvantage.

            In Lupien, the Appellate Court ruled, in light of Plisko and in view of the purpose of § 52-172 and the rule against admitting offers of compromise on the issue of liability, that the decedent’s statements were properly excluded.[15]