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The Common Law Prohibition on Party Testimony and the Development of Tort Liability

Kenneth S. Abraham

University of Virginia School of Law

September 29, 2008

Virginia Law Review, Forthcoming

For two and a half centuries of accident law's history, between about 1600 and 1850, neither the plaintiff nor the defendant in a tort suit could testify in that suit. In fact, during this period the parties could not testify in any civil suit, and the defendant could not testify in a criminal case. These prohibitions were features of a broader common law rule providing that any potential witness who had an "interest" in the outcome of a case was not competent to testify in it. It was not until statutes abolishing this evidentiary prohibition were enacted in England in the 1840s, and in the United States between the late 1840s and the 1890s, that the parties were permitted to testify in tort (and other) suits. This Essay addresses the influence of the prohibition against party testimony on the development of tort liability prior to the middle of the 19th century.

Number of Pages in PDF File: 31

Keywords: Torts, Tort Liability

JEL Classification: K13

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Date posted: September 30, 2008  

Suggested Citation

Abraham, Kenneth S., The Common Law Prohibition on Party Testimony and the Development of Tort Liability (September 29, 2008). Virginia Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1275488

Contact Information

Kenneth S. Abraham (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States
434-924-3616 (Phone)
434-982-2845 (Fax)

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