COA: Dead Man’s Statute precludes testimony

December 13, 2017

Indiana’s Dead Man’s Statute prohibits the owners of a cattle company from testifying about their dealings with a deceased cattle farmer, the Indiana Court of Appeals has ruled, though one judge questioned whether the Dead Man’s Statute should remain law.

As the sole proprietor of Cain Farms, Roger Cain purchased cattle from Kentucky-based Childress Cattle, LLC. The sales were finalized verbally over the telephone and were recorded through handwritten notations on documents from other purchases that Childress Cattle made.

After Cain died in January 2016, Childress Cattle filed a claim against his estate for nearly $218,000 for cattle Cain had allegedly received before his death. Childress later raised the amount it was allegedly owed to nearly $295,000.

During a subsequent hearing, the estate objected to the testimony of James and Bonnie Childress under Indiana’s Dead Man’s Statute and to the admission of Childress’ invoices to Cain, arguing they required context that could only be provided through testimony barred under the Dead Man’s Statute. The Rush Superior Court agreed on both counts, but did allow the testimony of Childress truck drivers and the admission of trucking invoices and checks from Cain Farms.

The trial court then disallowed the cattle company’s claim, finding it failed to prove the claim had not been paid in full. The company filed two offers of proof and appeal in Childress Cattle, LLC v. The Estate of Roger F. Cain, Christie Cain, Personal Representative, 70A05-1706-EU-1442.

On appeal, Childress Cattle argued the trial court erred in excluding the Childresses’ testimony and invoices as evidence. But in a Wednesday opinion, the Indiana Court of Appeals upheld the trial court’s decisions.

After initially noting that neither party to the appeal filed an appendix, frustrating the appellate review process, Judge John Baker wrote the court had agreed to address the issues in the case. He then noted the subject of Bonnie Childress’ proposed testimony involved oral contracts possibly formed between Childress Cattle and Cain during his lifetime, thus precluding the testimony under the Dead Man’s Statute.

Further, Childress Cattle never specified any other proposed testimony that Bonnie or James would present, Baker said. Without knowledge of the subject of that proposed testimony, the court cannot decide if the testimony would be precluded under the statute, he said.

Similarly, Baker wrote that without “specific facts, the offer of proof, or an appendix to support its claim,” Childress Cattle was asking the court to take it at its word that the excluded invoices would be permissible under the Dead Man’s Statute because they would otherwise be admissible under Indiana Rule of Evidence 803(6).  

“As a result, we find that the circumstances indicate a lack of trustworthiness that precludes the invoices from meeting the hearsay exception for records of a regularly conducted activity,” Baker wrote.

In a separate opinion, Judge James Kirsch wrote he concurred with the appellate panel “with much reluctance” and urged Indiana “to follow the lead of other states and repeal its Dead Man Statute.”

“Dean Wigmore stated that America’s judicial system is based on presuming one is innocent until proven guilty,” Kirsch wrote, “but by their very nature, Dead Man’s statutes prevent an entire class of persons from testifying because of an assumption that all witnesses are bound to lie when the lips of one are sealed due to death.”


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