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 

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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1 See Ed Wallis, An Outdated Form of Evidentiary Law; A Survey of Dead Man’s 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. 

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