Florida Statutes

Fla. Stat. § 90.804 (2025)

Hearsay exceptions; declarant unavailable.

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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.

Notes of Decisions

Cited in 263 cases (5 in the last 5 years), 1979–2025 · leading case: Rodriguez v. State, 609 So. 2d 493 (Fla. 1992).

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Rodriguez v. State, 609 So. 2d 493 (Fla. 1992). · cites it 17× “Under the circumstances, the State had no reason to rigorously prepare for or pursue questioning of the witness.”

State v. Townsend, 635 So. 2d 949 (Fla. 1994). · cites it 12× “[1] After the State subsequently filed a notice of intent to introduce the child's statements as hearsay evidence, the trial judge determined that the child was not "unavailable" under section 90.”

Reynolds v. State, 934 So. 2d 1128 (Fla. 2006). · cites it 8× “See § 90.804, Fla. Stat. (2003). Unavailability is defined as meaning 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…”

Carpenter v. State, 785 So. 2d 1182 (Fla. 2001). · cites it 9× “The issue before us primarily involves section 90.804(2)(c), Florida Statutes (2000), [14] which provides that the following are not excluded as hearsay if the declarant is unavailable as a witness: A statement which, at the time of its making, was so far contrary to the…”

Brooks v. State, 787 So. 2d 765 (Fla. 2001). · cites it 9× “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…”

Jones v. State, 709 So. 2d 512 (Fla. 1998). · cites it 7× “Pursuant to section 90.804(2), Florida Statutes (1997), in order for a confession to be admissible as a declaration against penal interest, the declarant must be unavailable as a witness and there must be corroborating circumstances to show the trustworthiness of the statement.”

Leon Davis, Jr. v. State of Florida, 207 So. 3d 142 (Fla. 2016). · cites it 4× “See § 90.804(2)(b), Fla. Stat. (requiring an unavailable declarant’s reasonable belief “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.”

Robinson v. State, 707 So. 2d 688 (Fla. 1998). · cites it 11× “§ 90.804, Fla. Stat. (1991). Therefore, we find that the trial judge did not abuse his discretion in denying Robinson relief on this issue.”

Sims v. State, 754 So. 2d 657 (Fla. 2000). · cites it 8× “804(2) provides several exceptions to the hearsay rule, one of which is for statements against interest: (c) Statement against interestA 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…”

Joseph Eli Bearden v. State of Florida, 161 So. 3d 1257 (Fla. 2015). · cites it 15× “A possible hearsay exception for Tyler’s testimony regarding the statement might have been the exception for a statement against penal interest under section 90.804(2)(c), Florida Statutes. However, section 90.”

Jones v. State, 678 So. 2d 309 (Fla. 1996). · cites it 9× “Lastly, Jones contends that Schofield's statements must be admitted under Chambers irrespective of the unavailability requirement of section 90.804. We have previously recognized that [i]n Chambers , the Court held that "[U]nder the facts and circumstances of this case the…”

Corona v. State, 64 So. 3d 1232 (Fla. 2011). · cites it 8× “2d at 594 (quoting § 90.804(1)(e), Fla. Stat. (2001)). However, a declarant is not unavailable as a witness under the statute "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…”

Show all 263 citing cases →

— 90.804(1) — 37 cases

State v. Townsend, 635 So. 2d 949 (Fla. 1994). “[1] After the State subsequently filed a notice of intent to introduce the child's statements as hearsay evidence, the trial judge determined that the child was not "unavailable" under section 90.”

Wyatt v. State, 71 So. 3d 86 (Fla. 2011).

Franqui v. State, 699 So. 2d 1332 (Fla. 1997).

Lawrence v. State, 691 So. 2d 1068 (Fla. 1997).

Conner v. State, 748 So. 2d 950 (Fla. 1999).

— 90.804(1)(a) — 1 case

Reynolds v. State, 934 So. 2d 1128 (Fla. 2006). “See § 90.804, Fla. Stat. (2003). Unavailability is defined as meaning 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…”

— 90.804(1)(b) — 10 cases

Stano v. State, 473 So. 2d 1282 (Fla. 1985).

Reaves v. State, 826 So. 2d 932 (Fla. 2002).

Happ v. Moore, 784 So. 2d 1091 (Fla. 2001).

Robinson v. State, 707 So. 2d 688 (Fla. 1998). “§ 90.804, Fla. Stat. (1991). Therefore, we find that the trial judge did not abuse his discretion in denying Robinson relief on this issue.”

Reaves v. State, 942 So. 2d 874 (Fla. 2006).

— 90.804(1)(c) — 5 cases

Penalver v. State, 926 So. 2d 1118 (Fla. 2006).

Robinson v. State, 707 So. 2d 688 (Fla. 1998). “§ 90.804, Fla. Stat. (1991). Therefore, we find that the trial judge did not abuse his discretion in denying Robinson relief on this issue.”

Marvin E. Noack v. State of Florida (Fla. 1st DCA 2018).

Noack v. State, 260 So. 3d 1172 (Fla. 1st DCA 2018).

— 90.804(1)(d) — 6 cases

State v. Contreras, 979 So. 2d 896 (Fla. 2008).

McClain v. State, 411 So. 2d 316 (Fla. 3d DCA 1982).

Medina v. State, 260 So. 3d 419 (Fla. 3d DCA 2018).

Di Battisto v. State, 480 So. 2d 169 (Fla. 3d DCA 1985).

— 90.804(1)(e) — 12 cases

Corona v. State, 64 So. 3d 1232 (Fla. 2011). “2d at 594 (quoting § 90.804(1)(e), Fla. Stat. (2001)). However, a declarant is not unavailable as a witness under the statute "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…”

Rodriguez v. State, 609 So. 2d 493 (Fla. 1992). “Under the circumstances, the State had no reason to rigorously prepare for or pursue questioning of the witness.”

Jackson v. State, 575 So. 2d 181 (Fla. 1991).

McClain v. State, 411 So. 2d 316 (Fla. 3d DCA 1982).

Dinter v. Brewer, 420 So. 2d 932 (Fla. 3d DCA 1982).

— 90.804(18)(a) — 1 case

Johnny Mack Sketo Calhoun v. State of Florida & Johnny Mack Sketo Calhoun v. Mark S. Inch, etc. (Fla. 2019).

— 90.804(2) — 23 cases

Jones v. State, 709 So. 2d 512 (Fla. 1998). “Pursuant to section 90.804(2), Florida Statutes (1997), in order for a confession to be admissible as a declaration against penal interest, the declarant must be unavailable as a witness and there must be corroborating circumstances to show the trustworthiness of the statement.”

Jones v. State, 678 So. 2d 309 (Fla. 1996). “Lastly, Jones contends that Schofield's statements must be admitted under Chambers irrespective of the unavailability requirement of section 90.804. We have previously recognized that [i]n Chambers , the Court held that "[U]nder the facts and circumstances of this case the…”

In Re Amendments to the Florida Evidence Code, 144 So. 3d 536 (Fla. 2014).

Randolph v. State, 853 So. 2d 1051 (Fla. 2003).

Curtis v. State, 876 So. 2d 13 (Fla. 1st DCA 2004).

— 90.804(2)(9) — 1 case

Price v. City of Boynton Beach, 847 So. 2d 1051 (Fla. 4th DCA 2003).

— 90.804(2)(a) — 52 cases

Rodriguez v. State, 609 So. 2d 493 (Fla. 1992). “Under the circumstances, the State had no reason to rigorously prepare for or pursue questioning of the witness.”

Leighty v. State, 981 So. 2d 484 (Fla. 4th DCA 2008).

Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992).

State v. Green, 667 So. 2d 756 (Fla. 1995).

Marquard v. State, 850 So. 2d 417 (Fla. 2002).

— 90.804(2)(b) — 21 cases

Leon Davis, Jr. v. State of Florida, 207 So. 3d 142 (Fla. 2016). “See § 90.804(2)(b), Fla. Stat. (requiring an unavailable declarant’s reasonable belief “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.”

Price v. State, 538 So. 2d 486 (Fla. 3d DCA 1989).

Hayward v. State, 24 So. 3d 17 (Fla. 2009).

Leon Davis, Jr. v. State of Florida, 207 So. 3d 177 (Fla. 2016).

Pope v. State, 679 So. 2d 710 (Fla. 1996).

— 90.804(2)(c) — 107 cases

Carpenter v. State, 785 So. 2d 1182 (Fla. 2001). “The issue before us primarily involves section 90.804(2)(c), Florida Statutes (2000), [14] which provides that the following are not excluded as hearsay if the declarant is unavailable as a witness: A statement which, at the time of its making, was so far contrary to the…”

Brooks v. State, 787 So. 2d 765 (Fla. 2001). “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…”

Joseph Eli Bearden v. State of Florida, 161 So. 3d 1257 (Fla. 2015). “A possible hearsay exception for Tyler’s testimony regarding the statement might have been the exception for a statement against penal interest under section 90.804(2)(c), Florida Statutes. However, section 90.”

Sims v. State, 754 So. 2d 657 (Fla. 2000). “804(2) provides several exceptions to the hearsay rule, one of which is for statements against interest: (c) Statement against interestA 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…”

Rigterink v. State, 66 So. 3d 866 (Fla. 2011).

— 90.804(2)(d) — 4 cases

Parker v. State, 873 So. 2d 270 (Fla. 2004).

Brown v. State, 473 So. 2d 1260 (Fla. 1985).

Barnett v. State, 444 So. 2d 967 (Fla. 1st DCA 1983).

Jenkins v. State, 861 So. 2d 1278 (Fla. 5th DCA 2003).

— 90.804(2)(e) — 3 cases

Marek v. State, 14 So. 3d 985 (Fla. 2009).

In Re Amendments to the Fl. Evidence Code, 960 So. 2d 762 (Fla. 2007).

Masaka v. State, 4 So. 3d 1274 (Fla. 2d DCA 2009).

— 90.804(2)(f) — 8 cases

In Re Amendments to the Florida Evidence Code, 144 So. 3d 536 (Fla. 2014).

Mortimer v. State, 100 So. 3d 99 (Fla. 4th DCA 2012).

Kevin Joseph v. State of Florida, 250 So. 3d 113 (Fla. 4th DCA 2018).

Guy Mortimer v. State of Florida (Fla. 4th DCA 2014).

Kevin Joseph v. State of Florida (Fla. 4th DCA 2018).

— 90.804(24) — 1 case

State v. Hosty, 944 So. 2d 255 (Fla. 2006).

— 90.804(4) — 1 case

Shantel Kimberly Emmitt v. First Transit, Inc. d/b/a Trolley 606 (Fla. 4th DCA 2020).

— 90.804(a) — 1 case

Dinter v. Brewer, 420 So. 2d 932 (Fla. 3d DCA 1982).

— 90.804(d) — 1 case

State v. Carter, 4 Fla. Supp. 2d 43 (Fla. Cir. Ct. 1981).

— 90.804(f) — 1 case

Cricket Kathleen Toole v. State of Florida, 270 So. 3d 371 (Fla. 4th DCA 2019).

— 90.804(l)(a) — 1 case

State, Dep't of Health & Rehabilitative Servs. v. Bennett, 416 So. 2d 1223 (Fla. 3d DCA 1982).

— 90.804(l)(b) — 4 cases

To v. Dep't of Child. & Families, 21 So. 3d 173 (Fla. 4th DCA 2009).

State v. Roberts, 174 So. 3d 374 (Fla. 3d DCA 2014).

Stano v. State, 473 So. 2d 1282 (Fla. 1985).

Padilla v. State, 189 So. 3d 986 (Fla. 2d DCA 2016).

— 90.804(l)(c) — 3 cases

To v. Dep't of Child. & Families, 21 So. 3d 173 (Fla. 4th DCA 2009).

L.W. v. State, Dep't of Health & Rehabilitative Servs., 681 So. 2d 1181 (Fla. 2d DCA 1996).

State v. Dunn, 27 Fla. Supp. 2d 94 (Fla. Volusia Cty. Ct. 1988).

— 90.804(l)(d) — 2 cases

Partin v. State, 82 So. 3d 31 (Fla. 2011).

Townsend v. State, 613 So. 2d 534 (Fla. 5th DCA 1993).

— 90.804(l)(e) — 4 cases

State v. Crofoot, 97 So. 3d 866 (Fla. 1st DCA 2012).

Wilson v. State, 45 So. 3d 514 (Fla. 4th DCA 2010).

Pottgen v. State, 616 So. 2d 1125 (Fla. 1st DCA 1993).

Coleman v. State, 592 So. 2d 788 (Fla. 3d DCA 1992).

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