Florida Statute 90.804 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title VII
EVIDENCE

Chapter 90
EVIDENCE CODE

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F.S. 90.804

90.804 Hearsay exceptions; declarant unavailable.—

(1) DEFINITION OF UNAVAILABILITY.—“Unavailability as a witness” means that the declarant:

(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;

(b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;

(c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;

(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or

(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.

(2) HEARSAY EXCEPTIONS.—The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:

(a) Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(b) Statement under belief of impending death.—In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.

(c) Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.

(d) Statement of personal or family history.—A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.

(e) Statement by deceased or ill declarant similar to one previously admitted.—In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.

(f) Statement offered against a party that wrongfully caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

History.—s. 1, ch. 76-237; s. 1, ch. 77-77; s. 22, ch. 78-361; s. 1, ch. 78-379; s. 3, ch. 90-139; s. 4, ch. 90-174; s. 499, ch. 95-147; s. 2, ch. 2005-46; s. 1, ch. 2012-152.

F.S. 90.804 on Google Scholar

F.S. 90.804 on Casetext

Amendments to 90.804

Arrestable Offenses / Crimes under Fla. Stat. 90.804

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 90.804.

Annotations, Discussions, Cases:

Cases Citing Statute 90.804

Total Results: 20

Jose Benito Larioszambrana v. The State of Florida

Court: Fla. Dist. Ct. App. | Date Filed: 2024-03-14T00:00:00-07:00

Snippet: in addition to findings pursuant to s. 90.804(1). (b) In a criminal action, the defendant…harm, in addition to findings pursuant to s. 90.804(1). The trial court conducted a hearing

ROBERT JACKSON, a/k/a ELDWIN GELIN v. THE STATE OF FLORIDA

Court: Fla. Dist. Ct. App. | Date Filed: 2023-01-24T23:53:00-08:00

Snippet: after trial and statute of limitations had run); § 90.804(1)(b), Fla. Stat. (2021) (“‘Unavailability as a…despite an order of the court to do so . . . .”); § 90.804(2)(c), Fla. Stat. (“A statement tending to expose

Billy Jim Sheppard, Jr. v. State of Florida & SC20-422 Billy Jim Sheppard, Jr. v. Ricky D. Dixon, etc.

Court: Fla. | Date Filed: 2022-03-09T23:53:00-08:00

Snippet: for statements against interest found in section 90.804(2)(c), Florida Statutes (2020). This statute states… “trustworthiness” inquiry required by section 90.804(2)(c) to determine whether Roberts’s statement

UNITED AUTOMOBILE INSURANCE COMPANY v. NB SPORTS MASSAGE AND REHAB CORP. A/A/O DAISY DEPAULA

Court: Fla. Dist. Ct. App. | Date Filed: 2021-07-28T00:53:00-07:00

Snippet: the hearsay rule as provided in s. 90.803 or s. 90.804.”). 6

MARCEL ASHLEY v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2020-11-24T23:53:00-08:00

Snippet: in Florida’s Code and Rules of Evidence. See § 90.804(1)(b), Fla. Stat. (2018) (providing in pertinent

SHANTEL KIMBERLY EMMITT v. FIRST TRANSIT, INC. d/b/a TROLLEY 606

Court: Fla. Dist. Ct. App. | Date Filed: 2020-07-22T00:53:00-07:00

Snippet: during trial, the defendant’s counsel cited section 90.804(4), but never cited section 90.803(18). Second

JAMES GENTRY v. STATE OF FLORIDA

Court: Fla. Dist. Ct. App. | Date Filed: 2020-07-22T00:53:00-07:00

Snippet: was not a statement against interest pursuant to 90.804(2)(c), Florida Statutes (2019), because the brother

Cynthia L. Jackson v. Household Finance Corporation III

Court: Fla. | Date Filed: 2020-07-02T00:53:00-07:00

Snippet: of admissible hearsay, see §§ 90.803(1)-(24), 90.804(1)-(2), Fla. Stat. (2014). The business records

Sean Alonzo Bush v. State of Florida

Court: Fla. | Date Filed: 2020-05-14T00:53:00-07:00

Snippet: statement made “under belief of impending death,” § 90.804(2)(b), Fla. Stat. (2017), also known as a dying… circumstances surrounding impending death.” § 90.804(2)(b). “The deceased must have known and ‘appreciated…circumstances surrounding her impending death. § 90.804(2)(b). We agree with the trial court that it did

Johnny Mack Sketo Calhoun v. State of Florida & Johnny Mack Sketo Calhoun v. Mark S. Inch, etc.

Court: Fla. | Date Filed: 2019-11-21T00:00:00-08:00

Snippet: about not knowing the girl on the flyer. See § 90.804(1)(c), Fla. Stat. (2019) (excepting admissions …interest from the hearsay exclusionary rule); § 90.804(18)(a) (excepting statements of a party opponent

James Milton Dailey v. State of Florida

Court: Fla. | Date Filed: 2019-10-03T00:00:00-07:00

Snippet: as a declaration against interest under section 90.804(2)(c), Florida Statutes (2017). But the circuit… . unless he or she believed it to be true.” § 90.804(2)(c), Fla. Stat. (2017). Pearcy had already been

SHERARD ADAMS v. STATE OF FLORIDA

Court: Fla. Dist. Ct. App. | Date Filed: 2019-07-24T00:53:00-07:00

Snippet: against the declarant’s penal interest under section 90.804(2)(c), Florida Statutes (2016). The statements … against penal interest can be found in section 90.804(2)(c), Florida Statutes, which provides: …self-inculpating. Those statements fit within section 90.804(2)(c). But the declarant’s other statements inculpated…omitted). This doctrine is newly codified in section 90.804(2)(f), which allows the admission of “[a] statement…a witness, and did so intending that result.” § 90.804, Fla. Stat. (2016). The trial court did not

CRICKET KATHLEEN TOOLE v. STATE OF FLORIDA

Court: Fla. Dist. Ct. App. | Date Filed: 2019-02-19T23:53:00-08:00

Snippet: favorable to the other party. For example, section 90.804, Florida Statutes, provides that hearsay evidence…hearsay is permissible as the 121 FLA. STAT. § 90.804(f) (2014). 122 State v. Milo, 596 So. 2d 722,

Noack v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2018-12-27T00:00:00-08:00

Citation: 260 So. 3d 1172

Snippet: unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued…not appear any applicable exception under section 90.804(2) exists. The fact that the State introduced

Noack v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2018-12-27T00:00:00-08:00

Citation: 260 So. 3d 1172

Marvin E. Noack v. State of Florida

Court: Fla. Dist. Ct. App. | Date Filed: 2018-12-26T23:53:00-08:00

Snippet: unavailable” due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued…not appear any applicable exception under section 90.804(2) exists. 5 The fact that the State introduced

BRANDON HINCK v. STATE OF FLORIDA

Court: Fla. Dist. Ct. App. | Date Filed: 2018-12-04T23:53:00-08:00

Snippet: exception exists under section 90.803 or section 90.804, Florida Statutes (2017). Section 90.803(2)

Medina v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2018-11-27T23:53:00-08:00

Snippet: statements against penal interest under section 90.804(2)(c), Florida Statutes (2013). However, this basis…testify at the hearing because of death,” see § 90.804(1)(d)—it is subject to the following exception:…preventing the witness from attending or testifying.” § 90.804(1)(e). See State v. Villarreal, 990 So. 2d 1166

Medina v. State

Court: Fla. Dist. Ct. App. | Date Filed: 2018-11-27T23:53:00-08:00

Alden Mitchell Howard v. State of Florida

Court: Fla. Dist. Ct. App. | Date Filed: 2018-10-02T00:53:00-07:00

Snippet: non-admissible hearsay, which don’t qualify under § 90.804(2)(c)’s exception for trustworthy statements against