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: District Court of Appeal of Florida | Date Filed: 2024-03-14

Snippet: in addition to findings pursuant to s. 90.804(1). (b) In a criminal action, the defendant

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

Court: District Court of Appeal of Florida | Date Filed: 2023-01-25

Snippet: after trial and statute of limitations had run); § 90.804(1)(b), Fla. Stat. (2021) (“‘Unavailability as a

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

Court: Supreme Court of Florida | Date Filed: 2022-03-10

Snippet: for statements against interest found in section 90.804(2)(c), Florida Statutes (2020). This statute states:

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

Court: District Court of Appeal of Florida | Date Filed: 2021-07-28

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

MARCEL ASHLEY v. State

Court: District Court of Appeal of Florida | Date Filed: 2020-11-25

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

JAMES GENTRY v. STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2020-07-22

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

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

Court: District Court of Appeal of Florida | Date Filed: 2020-07-22

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

Cynthia L. Jackson v. Household Finance Corporation III

Court: Supreme Court of Florida | Date Filed: 2020-07-02

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: Supreme Court of Florida | Date Filed: 2020-05-14

Snippet: statement made “under belief of impending death,” § 90.804(2)(b), Fla. Stat. (2017), also known as a dying

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

Court: Supreme Court of Florida | Date Filed: 2019-11-21

Snippet: about not knowing the girl on the flyer. See § 90.804(1)(c), Fla. Stat. (2019) (excepting admissions

James Milton Dailey v. State of Florida

Court: Supreme Court of Florida | Date Filed: 2019-10-03

Snippet: as a declaration against interest under section 90.804(2)(c), Florida Statutes (2017). But the circuit

SHERARD ADAMS v. STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2019-07-24

Snippet: against the declarant’s penal interest under section 90.804(2)(c), Florida Statutes (2016). The statements

CRICKET KATHLEEN TOOLE v. STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2019-02-20

Citation: 270 So. 3d 371

Snippet: favorable to the other party. For example, section 90.804, Florida Statutes, provides that hearsay evidence

Noack v. State

Court: District Court of Appeal of Florida | Date Filed: 2018-12-27

Citation: 260 So. 3d 1172

Snippet: "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued

Noack v. State

Court: District Court of Appeal of Florida | Date Filed: 2018-12-27

Citation: 260 So. 3d 1172

Snippet: "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued

Marvin E. Noack v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2018-12-27

Snippet: “unavailable” due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State argued

BRANDON HINCK v. STATE OF FLORIDA

Court: District Court of Appeal of Florida | Date Filed: 2018-12-05

Citation: 260 So. 3d 325

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

Medina v. State

Court: District Court of Appeal of Florida | Date Filed: 2018-11-28

Snippet: statements against penal interest under section 90.804(2)(c), Florida Statutes (2013). However, this basis

Medina v. State

Court: District Court of Appeal of Florida | Date Filed: 2018-11-28

Citation: 260 So. 3d 419

Snippet: statements against penal interest under section 90.804(2)(c), Florida Statutes (2013). However, this basis

Alden Mitchell Howard v. State of Florida

Court: District Court of Appeal of Florida | Date Filed: 2018-10-02

Citation: 254 So. 3d 1188

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