Hoyt, Merrill C.

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A Survey of the Illinois Dead Man\u27s Act

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Chicago-Kent Law Review Volume 45 Issue 1 Article 2 April 1968 A Survey of the Illinois Dead Man's Act Merrill C. Hoyt Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation Merrill C. Hoyt, A Survey of the Illinois Dead Man's Act, 45 Chi.-Kent L. Rev. 36 (1968). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol45/iss1/2 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. NOTES AND COMMENTSA SURVEY OF THE ILLINOIS DEAD MAN'S ACTHISTORICAL BACKGROUNDOur judicial system, with its plethora of pleading technicalities andrules of evidence, is designed to ferret out truth from the mire of humanbehavior. It leans heavily on the jury system to accomplish this goal.Originally, witnesses and jurors were identical. Jurors were the personsin the community who had knowledge of the controversy to be decided.They met, discussed the facts among themselves, and then reached a deci-sion on the merits, acting as jurors. Over a period of time, as populationincreased and concentrated in cities, the two functions became separated.The system went full circle, and the attempt was made to have controversiesdecided by jurors who knew nothing about the dispute, except as it wasrevealed to them by witnesses.'Though purporting to rely on the common sense of the fabled twelvemen, tried and true, the courts guarded those twelve from error by erectingan elaborate wall of evidentiary rules around them. In his work, The LawOf Evidence In Civil Cases, Professor Burr Jones commented that althoughthe common law judges were relentless in their praise of the jury system, therules of evidence they constructed suggest "a profound distrust of the capa-city of jurors to perform their function." 2 The distrust is most evident inthe rules of law surrounding the competency of witnesses to testify.At common law, there were four classes of witnesses who were deemedincompetent 3 to give testimony. The four classes were:1. Those insensible to the obligation of an oath;2. Those wanting in capacity or understanding;3. Those having a pecuniary interest in the issue; and4. Parties to the issue.Constitutional provisions, such as Article II of the Illinois Constitutionof 1870, have provided that no person shall be rendered incompetent to giveevidence because of his opinion concerning religion. To a large extent theseprovisions have obviated incompetency under category 1 above. In addition,the common law disability of convicted felons, who also were placed incategory 1, has been removed in many states.41 Humble, Principles of the Law of Evidence 44 (1934).2 3 Jones, The Law of Evidence in Civil Cases 1598 (1896).3 Id. at 1574; Humble, op. cit. supra note 1, at 52. There is a distinction between thegeneral incompetency of a witness and the privilege of suppressing certain testimony, as,e.g., communications between attorney and client or husband and wife.4 3 Jones on Evidence § 753 (5th ed. 1958); 58 Am. Jur., Witnesses § 140 (1948).NOTES AND COMMENTSCategory 2-those wanting in capacity and understanding-still exists.However, the strict interpretation of the common law has been liberalizedto a great extent. Thus, in most states, small children are not automaticallyand arbitrarily barred from testifying. The determination of a child's capa-city to testify is not based on his age alone, but by the understanding andintelligence of the individual child.5 Likewise, insane or weak minded wit-nesses are not excluded by those facts alone, but are allowed to testify if itappears that their afflictions do not prevent them from understanding thenature and obligation of an oath or from relating the facts of the case.6Those witnesses described in categories 3 and 4 were often lumped to-gether. Both "parties to the issue" and "those having a pecuniary interestin the issue" have a financial concern in the outcome of the case. BaronGilbert, in 1788, stated that as to persons interested in the matter in ques-tion "the General Rule is, that no Man can be a witness for himself, but heis the best Witness that can be against himself." 7 Gilbert explained thatthere is more reason to disbelieve the testimony of one who is interested inthe outcome than there is to trust such testimony. Gilbert noted that byhuman nature man is shortsighted and looks to his immediate benefit ratherthan the long term benefit to the world. For this reason, the law forbadehim to testify in order to prevent his sliding into perjury.What did the common law consider to be an interest? It was said thatan interest existed where the witness would receive either a benefit or a dis-advantage, depending on the outcome of the law suit.8 The witness' interesthad to be a legal and beneficial one. The test applied was whether thewitness would gain or lose by the direct legal operation and effect of thejudgment or whether the record would be legal evidence for or against thewitness in some other action. 9However, the prejudice or bias resulting from friendship or hatred, orfrom consanguinity, or domestic or social relationship, went only to thecredibility of a witness and did not disqualify him. 10 At common law then,though blood was thicker than water, it was thinner than gold.The application of these common law ideas produced some rather un-happy results. Though the jury was shielded from the possible falsehoodsof interested persons, it was also shielded from much light that these same5 3 Jones on Evidence § 757 (5th ed. 1958); 58 Am. Jur., Witnesses § 129 (1948). Evenvery young children have been allowed to testify. See, e.g., Featherstone v. People, 194Ill. 325, 62 N.E. 684 (1901) (6 yr. old); Hill v. Skinner, 81 Ohio App. 375, 79 N.E.2d 787(1947) (4 yr. old).6 3 Jones on Evidence § 760 (5th ed. 1958); 58 Am. Jur., Witnesses §§ 118-119 (1948).The burden of proof rests on the person asserting the incompetency, since the witness ispresumed sane and competent to testify. 3 Jones on Evidence § 760 (1958).7 Gilbert, The Law of Evidence 114 (5th ed. 1788).8 Id. at 120.9 Rapalje, A Treatise on the Law of Witnesses 51 (1887).10 Id. at 56; Humble, Principles of the Law of Evidence 50 (1934).CHICAGO-KENT LAW REVIEWwitnesses could bring to bear on the issues. For example, it was held that aparty could not be a witness to prove that he had already repaid the moneywhich the other party was suing to recover." Also, a plaintiff was not per-mitted to prove an acknowledgment or new promise by a defendant inorder to remove the bar of the Statute of Limitations.'2The inexorable logic of the common law carried the rule to its bitterend. "In all public Prosecutions, the Party injured may be a Witness wherethere is only a Fine to the King, and no private Advantage arising to himselfby such a prosecution; but if there be any Advantage of Private Benefit toaccrue by the Prosecution, the Party is equally excluded as in a private ac-tion." 13 Thus, before the passage of the statute, 3 &c 4 Wm. IV., ch. 42,§§ 26-7, the victim of an assault and battery could not testify, for he had anindirect interest in the record. That statute removed the indirect interest bymaking the verdict in the criminal case inadmissible by the witness or oneclaiming under him in a subsequent suit.14The magnitude of the interest was irrelevant. If the interest was realand of a legal nature, it made no difference how small that interest was.Thus, a guardian ad litem was deemed incompetent to testify, since, if thedecision were against his cause, he would be liable for costs.15In England, Lord Denman's Act 16 abolished the disqualification becauseof interest, except to parties of record and other minor instances. The pro-viso as to parties of record was removed by a later statute.17These statutes were enacted too late to become part of Illinois' commonlaw. As late as 1864, in Illinois, a plaintiff was not allowed to testify in hisown behalf. As was said in Mixell v. Lutz,1" "We are aware of no adjudgedcase which sanctions such a practice, and we have no power, even if soinclined, to change the rule."In 1867, the Illinois Legislature passed an enabling act, the forerunnerof today's chapter 51, §§ 1 et seq.19 In light of the common law backgroundof witness incompetency, it is now easy to see that the statute does not im-pose incompetency upon an interested witness who testifies in his own be-half against a deceased party. Rather, the statute removes the incompetencyimposed by the common law on interested parties, felons, and others. Sec-tion 1 clearly says that "No person shall be disqualified ... by reason of hisor her interest in the event .... or by reason of his or, her conviction of any11 Rapalje, supra note 9, at 32.12 Weed v. Bishop, 7 Conn. 128 (1828).13 Gilbert, The Law of Evidence 123 (5th ed. 1788).14 Rapalje, supra note 9, at 150.15 3 Jones, The Law of Evidence in Civil Cases 1599 (1896).18 6 & 7 Vict. c. 85 (1843).17 Lord Brougham's Act, 14 & 15 Vict. c. 99 (1851).18 34 IU. 382, 388 (1864).19 Ill. Rev. Stat. c. 51, §§ I et seq. (1867), amended in 1951.NOTES AND COMMENTScrime." 20 However, section 2 exempts from this removal of incompetencythe situation where one of the parties is dead, insane, or otherwise not ableto testify for himself.21 Thus, the Illinois statute, known as the Dead Man'sAct, continues, in part only, the policy of the common law by deeming in-terested person incompetent when they attempt to testify in their own be-half and against the interest of the deceased or incapable person.Today, it is recognized that jurors are capable of weighing the testi-mony of convicted felons, interested persons and parties of record. Theweight to be given to the testimony of such individuals is left to the properlyinstructed jury. The general rules of evidence and the always present op-portunity to cross examine are thought to be adequate to prevent unjustverdicts from being reached due to perjured testimony. The policy of thelaw is to allow both the plaintiff and the defendant to testify in their ownbehalf, the feeling being that so much more light is brought to bear uponthe issues this way that preventing the testimony on the grounds of possibleperjury is not justified.The exception to this rule is the Dead Man's Act. When one of theparties cannot testify because of death, insanity or infancy, the law forbidsthe other to testify to certain facts surrounding the case.22 The reason isthat since one interested party cannot testify, the jury will hear only oneside of the case from the lips of an interested person. In that kind of situa-tion, it is felt that cross examination is not an adequate safeguard and thechances of undetected perjury are thus increased. Furthermore, biasedstatements cannot be evaluated properly when equally self-serving adverseevidence cannot be heard. As was said in Louis v. Easton,23 "If death hasclosed the lips of one party, the policy of the law is to close the lips of theother."MERRILL -C. HOYT20 Il. Rev. Stat. c. 51, § I (1967).21 Ill. Rev. Stat. c. 51, § 2 (1967).22 See generally 46 Haxv. L. Rev. 834 (1933).23 50 Ala. 471 (1874).

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A Survey of the Illinois Dead Man\u27s Act

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