No. 11-1265 - State Farm Fire & Casualty Company v. Robin Skinner Prinz, the
Personal Representative of the Estate of Kyle Hoffman, Jr.
                                                                          FILED
                                                                          May 21, 2013

                                                                     RORY L. PERRY II, CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA

Justice Ketchum, concurring:
             Now that this Court has finally abolished the antiquated and unfair Dead

Man’s Statute, we need to modify our Rules of Evidence to deal with this type testimony.

This Court recently appointed a committee to recommend revisions to the Rules of

Evidence.   I am hopeful the committee will recommend changes that give specific

guidelines to our trial judges relating to transactions, communications and/or statements

by or with a decedent. I believe two simple changes to our Rules of Evidence would

accomplish this goal. These changes are:


             1. Rule 601 should be amended to read, “Every person is competent to be a

witness except as otherwise provided in these rules.” There no longer needs to be an

exception for the Dead Man’s Statute.


             2. A new rule should be added to the hearsay exceptions, one similar to

New Hampshire’s Rule of Evidence 804(b)(5) and California’s Evidence Code §1261.

The new hearsay rule would state:


                    In actions, suits or proceedings by or against the
             representatives of deceased persons, including proceedings
             for the probate of wills, any statement of the deceased,
             whether written or oral, shall not be excluded as hearsay
             provided the Trial Judge shall first find as a fact that the
             statement was made by the decedent, that it was made in good
             faith and on the decedent’s personal knowledge, and the

                                           1
             statement was made under circumstances such as to indicate it
             was trustworthy. 1
             In the meantime, judges should assess the admissibility of such evidence

under the above guidelines and the “catch-all” provision of Rule 804(b)(5).2




      1
         See Ed Wallis, An Outdated Form of Evidentiary Law; A Survey of Dead Man’s
Statutes and A Proposal for Change, 53 Clev. St. L. Rev. 75 (2005); Wesley P. Page,
Dead Man Talking: A Historical Analysis of West Virginia’s Dead Man’s Statute and a
Recommendation For Reform, 109 W. Va. L. Rev. 897 (2007); and Roy R. Ray, Dead
Man’s Statutes, 24 Ohio St. L. J. 89 (1963).
      2
          Rule 804(b)(5) covers those situations where a declarant is unavailable – say,
“unable to be present or to testify at the hearing because of death” – and the evidence
sought to be admitted is hearsay but not one of four specific exceptions: former
testimony, a statement made under belief of impending death, a statement against
interest, or a statement of personal or family history. Rule 804(b)(5) states:

                    The following are not excluded by the hearsay rule if
             the declarant is unavailable as a witness: . . .
                     (5) . . . A statement not specifically covered by any of
             the foregoing exceptions but having equivalent circumstantial
             guarantees of trustworthiness, if the court determines that (A)
             the statement is offered as evidence of a material fact; (B) the
             statement is more probative on the point for which it is
             offered than any other evidence which the proponent can
             procure through reasonable efforts; and (C) the general
             purposes of these rules and the interests of justice will best be
             served by admission of the statement into evidence.
             However, a statement may not be admitted under this
             exception unless the proponent of it makes known to the
             adverse party, sufficiently in advance of the trial or hearing to
             provide the adverse party with a fair opportunity to prepare to
             meet it, the proponent's intention to offer the statement and
             the particulars of it, including the name and address of the
             declarant.

                                            2

