In Virginia, can a defendant in a wrongful death lawsuit testify as to statements made by the decedent at the scene of the car accident?

The below information was written by our personal injury lawyers in Virginia Beach.

Yes. Virginia’s “dead man’s statute” creates an exception to the hearsay rule for statements made by persons incapable of testifying. Click here to learn more about the application of the hearsay rule in Virginia. According to the Virginia Code:

In an action by or against a person who, from any cause, is incapable of testifying, or by or against the committee, trustee, executor, administrator, heir, or other representative of the person so incapable of testifying, no judgment or decree shall be rendered in favor of an adverse or interested party founded on his uncorroborated testimony. In any such action, whether such adverse party testifies or not, all entries, memoranda, and declarations by the party so incapable of testifying made while he was capable, relevant to the matter in issue, may be received as evidence in all proceedings including without limitation those to which a person under a disability is a party. The phrase “from any cause” as used in this section shall not include situations in which the party who is incapable of testifying has rendered himself unable to testify by an intentional self-inflicted injury.

Statements made by a decedent at the scene of a car accident are considered statements of a person incapable of testifying, so a defendant in a wrongful death case can testify as to things said by the decedent at the accident scene. Click here to learn more about wrongful death claims in Virginia. A defendant in a wrongful death lawsuit might want to offer statements made by the decedent, if the decedent made statements at the accident scene that indicate that the decedent was partially responsible for the car accident. In Virginia, a wrongful death claim will fail, if the decedent was contributorily negligent, meaning the decedent committed negligence that proximately contributed to the accident causing the decedent’s death. Click here to learn more about the contributory negligence doctrine in Virginia.

However, the testimony from the above mentioned hypothetical defendant offered into evidence pursuant to the “dead man’s statute” must be corroborated. The Virginia Supreme Court has written that the purpose of the “dead man’s statute” is to prevent “an opportunity for the survivor to prevail by relying on his own unsupported credibility, while his opponent, who alone might have contradicted him, is silenced by death.” Writing on the amount of corroborating evidence required by the “dead man’s statute,” the Virginia Supreme Court has said:

It is not necessary that the corroborative evidence be sufficient by itself to support a verdict. “ ‘Confirmation is not necessary for that removes all doubt, while corroboration only gives more strength than was had before.’ ” Id. at 357, 143 S.E.2d at 845 (quoting from Timberlake’s, Adm’r. v. Pugh, 158 Va. at 397, 402, 163 S.E. at 402, 404 (1932)). Corroborating evidence tends to confirm and strengthen the testimony of the witness. It tends to show the probability of its truth. It need not come from other witnesses, but may be furnished by circumstantial evidence. Finally, if the survivor’s testimony is corroborated to some degree, it is unnecessary that it receive corroboration on all material points. Id. 206 Va. at 357, 143 S.E.2d at 845. The corroboration, to be sufficient under the statute, however, must at least tend, “in some degree, of its own strength and independently, to support some essential allegation or issue raised by the pleadings [and] testified to by the [surviving] witness … which allegation or issue, if unsupported, would be fatal to the case.” Burton’s Ex’r. v. Manson, 142 Va. 500, 508, 129 S.E. 356, 359 (1925) (emphasis added).

Questions regarding the admissibility of statements made by a decedent and other exceptions to the hearsay rule are specific to the individual wrongful death case, and we encourage you to contact one of our personal injury lawyers in Virginia Beach.  We can advise the prospective client as to what testimony a witness can give at trial and what testimony will be prohibited on the basis of hearsay or some other rule of evidence. As in all cases, experienced personal injury lawyers can also advise the prospective client as to the value of the wrongful death claim, can guide the prospective client through the process of making a claim with the applicable insurance company or companies, and can represent the prospective client in the litigation of the wrongful death claim, if a wrongful death lawsuit becomes necessary.

Waiting can hurt your case. To find out how our personal injury lawyers in Virginia Beach can help you, please contact us at (757) 486-2700.

Personal injury lawyers in Virginia Beach serving all of Hampton Roads.

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