M Civ JI 6.02 Failure of Opposite Party to Testify in Case Involving “Dead Man’s Statute” [ Recommend No Instruction ]

Comment

The committee recommends that no instruction be given on the failure of the opposite party to testify in a case involving the “dead man’s statute.”

If heirs, assigns, devisees, legatees, or personal representatives were parties to a suit, the former dead man’s statute, MCL 600.2160, 617.64, prevented testimony by an adverse party as to matters which, if true, must have been equally within the knowledge of the deceased person. The prohibition was absolute if the statutory conditions were met.

The present statute, MCL 600.2166, represents an effort to loosen the strictures of the prior law. It applied originally only to actions against the person “incapable of testifying,” but 1969 PA 63 and GCR 1963, 608 extended it to actions “by” as well as “against.” Under the statute and rule the opposite party’s testimony was admissible if “some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.”

In 1978, GCR 1963, 608 was abolished and MRE 601 was adopted. It provides generally that any person is competent to be a witness. The committee commentary to rule 601 indicates that it changes present law by not requiring exclusion of testimony on grounds covered by the Michigan dead man’s statute. In James v Dixon, 95 Mich App 527; 291 NW2d 106 (1980), the court of appeals held that the dead man’s statute was impliedly abrogated by the adoption of MRE 601.

History

M Civ JI 6.02 was SJI 5.02.