Florida Statute 90.105 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title VII
EVIDENCE

Chapter 90
EVIDENCE CODE

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F.S. 90.105

90.105 Preliminary questions.—

(1) Except as provided in subsection (2), the court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence.

(2) When the relevancy of evidence depends upon the existence of a preliminary fact, the court shall admit the proffered evidence when there is prima facie evidence sufficient to support a finding of the preliminary fact. If prima facie evidence is not introduced to support a finding of the preliminary fact, the court may admit the proffered evidence subject to the subsequent introduction of prima facie evidence of the preliminary fact.

(3) Hearings on the admissibility of confessions shall be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be similarly conducted when the interests of justice require or when an accused is a witness, if he or she so requests.

History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 471, ch. 95-147.

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Amendments to 90.105

Annotations, Discussions, Cases:

Cases Citing Statute 90.105

Total Results: 44

Terry v. State

668 So. 2d 954, 1996 WL 2056

Supreme Court of Florida | Filed: Jan 4, 1996 | Docket: 1686964

Cited 247 times | Published

determinations must be made by the court under section 90.105. First, the court must determine whether the

Westerheide v. State

767 So. 2d 637, 2000 WL 1434081

District Court of Appeal of Florida | Filed: Sep 29, 2000 | Docket: 1661448

Cited 54 times | Published

matter to be resolved by the trial court. See § 90.105(1), Fla. Stat. (1999). The trial courts have wide

Cox v. State

966 So. 2d 337, 2007 WL 1932134

Supreme Court of Florida | Filed: Jul 5, 2007 | Docket: 505115

Cited 40 times | Published

determinations must be made by the court under section 90.105. First, the court must determine whether the

Anderson v. State

863 So. 2d 169, 2003 WL 22207892

Supreme Court of Florida | Filed: Sep 25, 2003 | Docket: 1728613

Cited 36 times | Published

determinations must be made by the court under section 90.105, Florida Statutes (1999). See Charles W. Ehrhardt

Anderson v. State

863 So. 2d 169, 2003 WL 22207892

Supreme Court of Florida | Filed: Sep 25, 2003 | Docket: 1728613

Cited 36 times | Published

determinations must be made by the court under section 90.105, Florida Statutes (1999). See Charles W. Ehrhardt

American Tobacco Co. v. State

697 So. 2d 1249, 1997 WL 408527

District Court of Appeal of Florida | Filed: Jul 23, 1997 | Docket: 1776645

Cited 31 times | Published

determine the issue in the first instance. See § 90.105(1), Fla. Stat. (1995). However, the statute does

Pierce v. State

718 So. 2d 806, 1997 WL 227452

District Court of Appeal of Florida | Filed: May 7, 1997 | Docket: 466461

Cited 19 times | Published

exhibit only. As a preliminary fact, pursuant to section 90.105, Florida Statutes (1995) (substantively identical

First Union Nat. Bank v. Turney

824 So. 2d 172, 2001 WL 1485659

District Court of Appeal of Florida | Filed: Nov 26, 2001 | Docket: 1729434

Cited 17 times | Published

preponderance of the evidence standard.[10]See § 90.105(1), Fla. Stat. (1999) ("[T]he court shall determine

Boyd v. State

389 So. 2d 642

District Court of Appeal of Florida | Filed: May 14, 1980 | Docket: 1683051

Cited 17 times | Published

Federal Rules of Evidence in many respects; Section 90.105 of the Code is a counterpart of Federal Rule

Perry v. State

675 So. 2d 976, 1996 WL 279211

District Court of Appeal of Florida | Filed: May 29, 1996 | Docket: 1322518

Cited 15 times | Published

determine preliminarily. Jano. See generally, § 90.105, Florida Statutes. We find no error in the denial

Tengbergen v. State

9 So. 3d 729, 2009 Fla. App. LEXIS 3450, 2009 WL 1066016

District Court of Appeal of Florida | Filed: Apr 22, 2009 | Docket: 1221405

Cited 14 times | Published

determinations must be made by the court under section 90.105. First, the court must determine whether the

Dempsey v. Shell Oil Co.

589 So. 2d 373, 1991 WL 231855

District Court of Appeal of Florida | Filed: Nov 13, 1991 | Docket: 1441826

Cited 14 times | Published

admissibility of opinion evidence given by an expert. Section 90.105 states that the trial court shall determine

Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co.

48 So. 3d 976, 2010 Fla. App. LEXIS 18327, 2010 WL 4870149

District Court of Appeal of Florida | Filed: Dec 1, 2010 | Docket: 1927248

Cited 10 times | Published

claims against Du Pont in 1992. Consistent with section 90.105, Florida Statutes (2001), it was the plaintiffs'

Thigpen v. United Parcel Services, Inc.

990 So. 2d 639, 2008 Fla. App. LEXIS 13824, 2008 WL 4146663

District Court of Appeal of Florida | Filed: Sep 10, 2008 | Docket: 1687449

Cited 10 times | Published

that are both legal and factual in nature. See § 90.105, Fla. Stat. It is well settled that "[t]he determination

Mariano v. State

933 So. 2d 111, 2006 WL 1476171

District Court of Appeal of Florida | Filed: May 31, 2006 | Docket: 1712271

Cited 10 times | Published

preliminary fact for the court to determine pursuant to § 90.105, Florida Statutes, and the court's rulings are

Tucker v. State

884 So. 2d 168, 2004 WL 1635615

District Court of Appeal of Florida | Filed: Jul 23, 2004 | Docket: 1683025

Cited 9 times | Published

procedures for preliminary questions outlined in section 90.105(1), Florida Statutes (2002), apply when a party

Phillips v. State

591 So. 2d 987, 1991 WL 265073

District Court of Appeal of Florida | Filed: Dec 13, 1991 | Docket: 1528133

Cited 8 times | Published

issue under Federal Rule 104(b) similar to section 90.105, Florida Statutes as not requiring the determination

Brock v. GD Searle & Co.

530 So. 2d 428, 1988 WL 89036

District Court of Appeal of Florida | Filed: Aug 30, 1988 | Docket: 1267475

Cited 8 times | Published

be inadmissible as a matter of law. Citing section 90.105(2),[2] Florida Statutes, Searle requested the

Saavedra v. State

421 So. 2d 725

District Court of Appeal of Florida | Filed: Nov 10, 1982 | Docket: 1719541

Cited 8 times | Published

find him guilty. (Citation omitted.) Second, section 90.105(1), Florida Statutes (1979), is patterned after

Huck v. State

881 So. 2d 1137, 2004 WL 1584336

District Court of Appeal of Florida | Filed: Jul 16, 2004 | Docket: 1466241

Cited 7 times | Published

jury and were, therefore, admissible under section 90.105, Florida Statutes (2003). The determination

Donaldson v. State

561 So. 2d 648, 1990 WL 58566

District Court of Appeal of Florida | Filed: May 9, 1990 | Docket: 2546015

Cited 7 times | Published

questions concerning the admissibility of evidence. § 90.105 Fla. Stat. (1987). Whether the state has laid

State v. Ellis

723 So. 2d 187, 1998 WL 716702

Supreme Court of Florida | Filed: Oct 15, 1998 | Docket: 1319920

Cited 6 times | Published

State, 52 So.2d 105 (Fla.1951). [3] See, e.g., § 90.105(1), Fla. Stat. (1993) ("[T]he court shall determine

Pierce v. State

671 So. 2d 186, 1996 WL 106372

District Court of Appeal of Florida | Filed: Mar 13, 1996 | Docket: 1248138

Cited 5 times | Published

exhibit only. As a preliminary fact, pursuant to section 90.105, Florida Statutes (1991), the trial court found

Romani v. State

528 So. 2d 15, 1988 WL 50675

District Court of Appeal of Florida | Filed: May 24, 1988 | Docket: 1367920

Cited 5 times | Published

1982), concluded that Florida Evidence Code section 90.105(1)[9] was patterned after Federal *20 Rule

Partin v. State

82 So. 3d 31, 36 Fla. L. Weekly Supp. 705, 2011 Fla. LEXIS 2796, 2011 WL 5984445

Supreme Court of Florida | Filed: Dec 1, 2011 | Docket: 60306206

Cited 4 times | Published

proven by a preponderance of the evidence. See § 90.105(1), Fla. Stat. (2002); Charles W. Ehrhardt, Florida

Georges v. State

723 So. 2d 399, 1999 WL 9790

District Court of Appeal of Florida | Filed: Jan 13, 1999 | Docket: 1319934

Cited 4 times | Published

even assuming that their form was proper. See § 90.105(1), Fla. Stat. (1997). Neither through the testimony

Moncus v. State

69 So. 3d 341, 2011 Fla. App. LEXIS 14062, 2011 WL 3903062

District Court of Appeal of Florida | Filed: Sep 7, 2011 | Docket: 2359126

Cited 3 times | Published

of evidence are determined by the trial court. § 90.105(1), Fla. Stat. (1995). The burden of proof is

Roop v. State

228 So. 3d 633, 2017 WL 4393245

District Court of Appeal of Florida | Filed: Oct 4, 2017 | Docket: 6163423

Cited 2 times | Published

procedures for preliminary questions outlined in section 90.105(1), Florida Statutes (2002), apply when a party

Shorter v. State

98 So. 3d 685, 2012 WL 4511305, 2012 Fla. App. LEXIS 16720

District Court of Appeal of Florida | Filed: Oct 3, 2012 | Docket: 60312524

Cited 2 times | Published

the predicates for admissibility have been met. § 90.105(1), Fla. Stat. (2010). Because the affidavit of

State Farm Florida Insurance Co. v. Buitrago

100 So. 3d 85, 2012 Fla. App. LEXIS 10547, 2012 WL 2471601

District Court of Appeal of Florida | Filed: Jun 29, 2012 | Docket: 60226083

Cited 2 times | Published

admissibility of the recommendation pursuant to section 90.105, and the court may consider possible exclusion

State Farm Florida Insurance Co. v. Buitrago

100 So. 3d 85, 2012 Fla. App. LEXIS 10547, 2012 WL 2471601

District Court of Appeal of Florida | Filed: Jun 29, 2012 | Docket: 60226083

Cited 2 times | Published

admissibility of the recommendation pursuant to section 90.105, and the court may consider possible exclusion

Arnett v. State

843 So. 2d 340, 2003 WL 1913720

District Court of Appeal of Florida | Filed: Apr 23, 2003 | Docket: 2539715

Cited 2 times | Published

admissibility of evidence pursuant *343 to section 90.105(1). Here, the trial court, in its discretion

Van Den Borre v. State

596 So. 2d 687, 1992 Fla. App. LEXIS 548, 1992 WL 12174

District Court of Appeal of Florida | Filed: Jan 29, 1992 | Docket: 1358972

Cited 2 times | Published

preliminary finding that the notes were authentic. See § 90.105(2), Fla. Stat. (1989). The trial judge never doubted

McDade v. State

114 So. 3d 465, 2013 WL 2451347, 2013 Fla. App. LEXIS 8996

District Court of Appeal of Florida | Filed: Jun 7, 2013 | Docket: 60231945

Cited 1 times | Published

hearing that should have been conducted under section 90.105, Florida Statutes (2011), to determine whether

State v. Hampton

44 So. 3d 661, 2010 Fla. App. LEXIS 14538, 2010 WL 3813183

District Court of Appeal of Florida | Filed: Oct 1, 2010 | Docket: 1928023

Cited 1 times | Published

and is governed by the procedure set forth in § 90.105(2) granting the court the power to admit evidence

Bowers v. State

23 So. 3d 767, 2009 Fla. App. LEXIS 17231, 2009 WL 3837251

District Court of Appeal of Florida | Filed: Nov 18, 2009 | Docket: 60282058

Cited 1 times | Published

that approach relies on federal rule 104(a)). Section 90.105(1), Florida Statutes (2008), is similar to

Essex v. State

958 So. 2d 431, 2007 WL 1264004

District Court of Appeal of Florida | Filed: May 2, 2007 | Docket: 1734977

Cited 1 times | Published

. . . the admissibility of evidence" under section 90.105(1), Florida Statutes (2006). "The trial court's

Elizabeth Sentz v. Bonefish Grill, LLC

District Court of Appeal of Florida | Filed: Nov 15, 2023 | Docket: 68008456

Published

concerning “the admissibility of evidence” under section 90.105(1), Florida Statutes (2020). The party seeking

Cynthia L. Jackson v. Household Finance Corporation III

Supreme Court of Florida | Filed: Jul 2, 2020 | Docket: 17317801

Published

(“While the trial judge has the duty under section 90.105(1) to make a factual determination that the

Livingston v. State

219 So. 3d 911, 2017 WL 1202398, 2017 Fla. App. LEXIS 4371

District Court of Appeal of Florida | Filed: Mar 31, 2017 | Docket: 4667149

Published

predicate findings before admitting the evidence. See § 90.105(1), Fla. Stat. (2013); Morrison v. State, 161

Allen v. State

157 So. 3d 540, 2015 Fla. App. LEXIS 2459, 2015 WL 735677

District Court of Appeal of Florida | Filed: Feb 23, 2015 | Docket: 60246102

Published

fact for the court to determine pursuant to Section 90.105, Florida Statutes, and the court’s rulings

Johnson v. State

108 So. 3d 707, 2013 WL 757198, 2013 Fla. App. LEXIS 3301

District Court of Appeal of Florida | Filed: Mar 1, 2013 | Docket: 60229208

Published

preponderance of the evidence, pursuant to section 90.105. Ehrhardt, supra, § 105.1. In this regard,

Leonard Bros. Industrial Contractors v. Burke Co.

529 So. 2d 779, 13 Fla. L. Weekly 1777, 1988 Fla. App. LEXIS 3391, 1988 WL 75979

District Court of Appeal of Florida | Filed: Jul 26, 1988 | Docket: 64636387

Published

M. Corp., 368 So.2d 91, 92 (Fla. 3d DCA 1979); § 90.105(2) law revision council note, Fla.Stat.Ann. (1979);

Alvarez v. La Associacion I.N.E.D., Inc.

524 So. 2d 502, 1988 Fla. App. LEXIS 1853, 1988 WL 45250

District Court of Appeal of Florida | Filed: May 10, 1988 | Docket: 64634541

Published

v. Morris, 143 Fla. 189, 196 So. 472 (1940); § 90.105(1), Fla.Stat. (1987); 4 Fla.Jur.2d *503Evidence