Annotations, Discussions, Cases:
Cases Citing Statute 90.804
Total Results: 249
709 So. 2d 512, 1998 WL 114500
Supreme Court of Florida | Filed: Mar 17, 1998 | Docket: 1682150
Cited 297 times | Published
...Jones claims that the trial court erred in not admitting the statements as substantive evidence and in failing to address their impeachment value. We first consider whether these statements should have been admitted as substantive evidence. 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....
...The requirement of unavailability parallels Federal Rule of Evidence 804(b)(3), as well as the evidence rules of the vast majority of state court jurisdictions. See McCormick on Evidence § 320 (John Strong ed., 4th ed.1992). Because Schofield was available and in fact testified at the most recent proceeding, section 90.804(2) precludes a consideration of the hearsay testimony as substantive evidence. [10] Jones does not attack the constitutionality of section 90.804(2). He concedes that section 90.804(2) applies but asserts that due process considerations set forth in Chambers v....
...since his last evidentiary hearing. He claims that because of this additional evidence Schofield's confessions now bear sufficient indicia of reliability. We disagree. None of the additional evidence requires that we disregard the plain language of section 90.804(2). The issue of whether or not the confessions bear sufficient indicia of reliability affects the admissibility as substantive evidence only if the declarant is unavailable as a witness. See § 90.804(2)....
754 So. 2d 657, 2000 WL 193226
Supreme Court of Florida | Filed: Feb 16, 2000 | Docket: 1523509
Cited 128 times | Published
...1038, 35 L.Ed.2d 297 (1973), despite its hearsay nature. We reject Sims' first ground (an admission by party opponent) and fourth ground ( Chambers v. Mississippi argument) as being without merit. [6] His remaining two bases for admission, however, deserve analysis. Section 90.804(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 prop...
...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. § 90.804(2)(c), Fla....
...Accordingly, even though Baldree is unavailable and his statements appear to be against his interest, we find no error in the trial court's determination that they have not been sufficiently corroborated by any other evidence and thus lack the indicia of trustworthiness to be admitted as substantive evidence under section 90.804(2)(c)....
...3d DCA 1982) (finding no error in exclusion of hearsay testimony that another person had admitted committing crime of which Jackson was accused because defense *662 did not proffer "corroborating circumstances [to] show the trustworthiness of the statement" as is required to justify admissibility under section 90.804(2)(c)); cf. Ards v. State, 458 So.2d 379, 380 (Fla. 5th DCA 1984) (holding that evidence that another person admitted to committing the crime for which Ards was charged was inadmissible under section 90.804(2)(c) because the corroborating circumstances "were ambiguous, unreliable and not trustworthy")....
...[4] Gray's affidavit was signed October 24, 1999, but it was not considered by the trial court during the postconviction proceedings at that time because defense counsel did not receive a copy of the affidavit until after the hearing had ended. [5] In so concluding, the trial court cited to section 90.804(2)(c), Florida Statutes, which discusses the admissibility of statements against penal interest....
575 So. 2d 181, 1991 WL 6535
Supreme Court of Florida | Filed: Jan 18, 1991 | Docket: 1731140
Cited 117 times | Published
...estimony because the state did not make a diligent effort to locate him before offering that testimony as evidence. Alternatively, Jackson argues that he should have been granted a continuance to find Jones himself. We find no merit in these claims. Section 90.804(1)(e) of the Florida Statutes (1983), provides that a witness may be declared unavailable if he "[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or othe...
...iscretion clearly appears. Outlaw v. State, 269 So.2d 403, 404 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla. 1973); see also Stano v. State, 473 So.2d 1282, 1286 (Fla. 1985), cert. denied, 474 U.S. 1093, 106 S.Ct. 869, 88 L.Ed.2d 907 (1986). Section 90.804(1)(e) required the state to exercise due diligence in making a good faith effort to locate Jones....
911 F.2d 1494, 1990 U.S. App. LEXIS 15509, 1990 WL 126225
Court of Appeals for the Eleventh Circuit | Filed: Sep 4, 1990 | Docket: 827224
Cited 108 times | Published
...And we would have been able to argue they got — you know, there is a reasonable doubt because of that. If that fails, then, you know, it would be raised on appellate review as to whether or not it was admissible as hearsay, which it was. 10 .Florida Evidence Code § 90.804(2)(c) provides: (2) Hearsay Exceptions....
524 So. 2d 403, 1988 WL 26245
Supreme Court of Florida | Filed: Mar 24, 1988 | Docket: 2514587
Cited 91 times | Published
...nformation which was not reasonably pertinent in medical treatment. The state maintains that even if portions of the statement to Dr. Mallea were not admissible under section 90.803(4) the entire statement was admissible as a dying declaration under section 90.804(2)....
635 So. 2d 949, 1994 WL 137938
Supreme Court of Florida | Filed: Apr 21, 1994 | Docket: 368823
Cited 82 times | Published
...[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 90.803(23)(a)(2) because the child's incompetency met none of the definitions of unavailability contained in section 90.804, Florida Statutes (1987) (incorporated by reference into section 90.803(23))....
...The district court, relying in part on this Court's decision in Perez v. State, 536 So.2d 206 (Fla. 1988), cert. denied, 492 U.S. 923, 109 S.Ct. 3253, 106 L.Ed.2d 599 (1989), ruled that the child was in fact "unavailable" under the "existing physical or mental illness or infirmity" exception contained in section 90.804(1) because of the child's age and lack of understanding as to the duty or obligation to tell the truth....
...r the child's statements were reliable. In rendering its decision, the district court certified the aforementioned question to this Court, seeking to determine whether the two-year-old child in this case was "unavailable," as that term is defined in section 90.804, for purposes of admitting the child's hearsay statements under section 90.803(23)....
...4 of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1)....
...d absent clear indications of reliability. As discussed later in this opinion, the reliability requirements of this statute are essential in assuring the constitutionality of this exception. The Unavailability Requirements of Sections 90.803(23) and 90.804(1) In addition to these strict reliability requirements, the hearsay statement of a child victim is considered admissible under section 90.803(23) only if the child testifies or is judicially found to be unavailable as a witness....
...A child is "unavailable" as a witness if the court finds, based on expert testimony, that a substantial likelihood exists that the child will suffer severe emotional or mental harm if the child testifies or finds that the child falls within one of the definitions for unavailability set forth in section 90.804(1). Section 90.804(1) provides that a witness is unavailable for purposes of admitting a hearsay statement if the witness: (a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement; (...
...endance or testimony by process or other reasonable means. (Emphasis added.) As previously indicated, the child's hearsay statements in this case were admitted based on the district court's ruling in Townsend I that the child was "unavailable" under section 90.804(1)(d) due to incompetency....
...ability for purposes of admitting the child's statements under *955 section 90.803(23), and, as such, that the child's statements should not have been admitted at trial. The district court reached this conclusion by determining that the reference in section 90.804(1) to "` then existing ......
...mental ... infirmity'" requires that the mental condition of the declarant must have arisen after the purported hearsay statement was made. The district court also noted that incompetency is not a specifically enumerated definition for unavailability under section 90.804(1)....
...ating the necessity that the child understand the duty of a witness to tell the truth. Perez, 536 So.2d at 211. In Perez, however, we did not specifically address whether incompetency fell within any of the definitions of unavailability set forth in section 90.804(1). It was on that issue that the district court distinguished Perez from the instant case. Consequently, we now address that issue. As noted by the district court, section 90.804(1)(d) provides that a declarant is unavailable if the declarant cannot testify because of a "then existing physical or mental illness or infirmity." Although the "then existing" language of the statute does refer to an infirmity existi...
...Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984) (unavailability and incompetence are not the same because they serve different purposes; if a declarant is incompetent, then the statement is too unreliable). We agree with the majority position and find that an incompetent witness is an unavailable witness within the meaning of section 90.804(1)(d)'s existing mental infirmity requirement....
699 So. 2d 1312, 1997 WL 348838
Supreme Court of Florida | Filed: Jun 26, 1997 | Docket: 468369
Cited 81 times | Published
...ity of the circumstances in which San Martin's confession was made makes the statement inherently trustworthy and renders the declarant particularly worthy of belief. While a statement against penal interest is an exception to the hearsay rule under section 90.804(2)(c), Florida Statutes (1995), we cannot say that it is a firmly rooted exception. Prior to the adoption of the Evidence Code, this Court first recognized the statement-against-penal-interest exception in Baker v. State, 336 So.2d 364 (Fla.1976). [1] The exception was thereafter codified as section 90.804(2)(c), and included the following sentence: "A statement or confession which is offered against the accused in a criminal action, and which is made by a co-defendant or other person implicating both himself and the accused, is not within this exception." See also Nelson v....
679 So. 2d 710, 1996 WL 498599
Supreme Court of Florida | Filed: Jun 13, 1996 | Docket: 1665825
Cited 76 times | Published
...Mary Witcher, the paramedic with Giger at the time Alice made the statements, heard Alice repeat "I'm going to die" at least two dozen times. Statements made concerning the cause or circumstances of what the declarant believes to be his or her impending death are admissible as hearsay exceptions. § 90.804(2)(b), Fla....
699 So. 2d 662, 1997 WL 417286
Supreme Court of Florida | Filed: Jul 17, 1997 | Docket: 57322
Cited 63 times | Published
...Two of the inmates then testified that during a particular sequence of events, Witteman told one of them to shut up or "he'd kill him like he did the other old bastard." The trial court found that Witteman's statement as relayed by the two inmates was untrustworthy and thus did not meet the requirements of section 90.804(2)(c), Florida Statutes (1993). Sliney contends that Witteman's statement was trustworthy and that even if the statement did not meet the requirements of section 90.804(2)(c), his constitutional right to present a defense should have taken precedence over the exclusionary rules of evidence....
934 So. 2d 1128, 2006 WL 1381880
Supreme Court of Florida | Filed: May 18, 2006 | Docket: 1460819
Cited 59 times | Published
...ile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2003). Hearsay is inadmissible at trial except as specifically provide by statute. See § 90.802, Fla. Stat. (2003). Section 90.804 of the Florida Statutes (2003) provides an exception to the hearsay rule of inadmissibility for out-of-court statements offered for the truth of the matter asserted made by an unavailable witness if the statement qualifies as a "statement against interest." See § 90.804(2)(c), Fla....
...was unavailable and, therefore, the statement against interest exception is totally inapplicable. Florida law requires that for the statement against interest exception to apply, the declarant must first be determined be "unavailable" for trial. See § 90.804, Fla....
...f 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. § 90.804(1)(a)-(e), Fla....
...As noted above, this exception applies to "[a] statement which, at the time of its making,... tended to subject the declarant to liability ..., so that a person in the declarant's position would not have made the statement unless he or she believed it to be true." § 90.804(2)(c), Fla....
609 So. 2d 493, 1992 WL 275891
Supreme Court of Florida | Filed: Oct 8, 1992 | Docket: 1738340
Cited 55 times | Published
...Montalvo had not been listed as a defense witness in accordance with Florida Rule of Criminal Procedure 3.220(b)(3) (currently Florida Rule of Criminal Procedure 3.220(d)(1)). Defense counsel argued that the deposition testimony could be admitted into evidence pursuant to section 90.804(2)(a), Florida Statutes (1989)....
...When unable to produce Mr. Montalvo the following day, counsel renewed his request to utilize the prior deposition testimony. The court again denied the request. We are presented with the question of whether a deposition is admissible as substantive evidence, under section 90.804(2)(a) of the evidence code, when, at the time of its taking, opposing counsel is not alerted by compliance with Rule of Criminal Procedure 3.190(j) that the deposition may be used at trial. We hold that it is not. Accord State v. James ; Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986) (discovery deposition that qualifies as a hearsay exception under section 90.804(2)(a) is not admissible as substantive evidence unless it qualifies for such admission under the criminal rules of procedure); Jackson v....
...mony before it can be used as substantive evidence in a criminal case. The holding in State v. James that discovery depositions are not admissible as substantive evidence absent compliance with Rule 3.190(j) was in no way modified by the adoption of section 90.804(2)(a). [2] In fact, the necessity of meeting the procedural requirements for perpetuating testimony before a deposition is admissible as substantive evidence is recognized in section 90.804(2)(a) by the express requirement that the deposition must be "taken in compliance with law." Accord Terrell v....
...I see no reason why the same should not hold true under Florida's procedural and evidentiary rules. Accord Ehrhardt, Florida Evidence § 804.2, at 670-71 (1992). It is generally accepted that when a deposition is not admissible under the Florida Rules of Civil Procedure it may still be offered as substantive evidence under section 90.804(2)(a), Florida Statutes (1989), if the requirements of that exception are met....
...1st DCA 1984) (when deposition meets the requirements of either the rule of civil procedure or the evidentiary rule, it is admissible), review denied, 467 So.2d 999 (Fla. 1985); see also Ehrhardt, Florida Evidence § 804.2, at 669-70. I would apply the same rule in criminal cases. Under the plain language of section 90.804(2)(a), the exception to the hearsay rule recognized therein is applicable in criminal as well as civil cases. It is illogical to think that compliance with Rule of Criminal Procedure 3.190(j) was intended to be a prerequisite to admission of depositions under section 90.804(2)(a). If such were the case, there would be no need to make section 90.804(2)(a) applicable in criminal proceedings since depositions taken in compliance with rule 3.190(j) would be admissible under the procedural rule....
...The fact that it may be difficult for the proponent of discovery deposition testimony to establish that the party against whom the testimony is offered, "had similar motive to develop the testimony by direct, cross, or redirect examination," as required by section 90.804(2)(a) [3] does not warrant a blanket rule that discovery depositions *503 may never be used as substantive evidence....
...in the use of discovery depositions as substantive evidence in cases such as this. Accordingly, I would hold that, where the confrontation rights of the defendant will not be compromised, if the declarant is unavailable and the other requirements of section 90.804(2)(a) are met a discovery deposition is admissible as substantive evidence under that exception to the hearsay rule even if the deposition would not be admissible under the Rules of Criminal Procedure....
...Montalvo as a person "whom defense counsel expects to call as a witness at trial" pursuant to rule 3.220(b)(3). Under the circumstances, the State had no reason to rigorously prepare for or pursue questioning of the witness. [5] I also agree that Rodriguez has failed to establish that Mr. Montalvo was "unavailable" under section 90.804(1)(e), Florida Statutes (1989). [6] Mr. Montalvo cannot be considered "unavailable" under section 90.804(1)(e) because the defense failed to establish that a diligent attempt to secure the witness' attendance had been made....
...e. One option would be to depose the witness after he or she is listed as a defense witness. The other would be to wait to cross-examine and impeach the witness at trial with prior inconsistent statements. See Jackson v. State, 453 So.2d at 457. [6] Section 90.804(1)(e) provides that a declarant is unavailable if he [i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means....
699 So. 2d 602, 1997 WL 332176
Supreme Court of Florida | Filed: Jun 19, 1997 | Docket: 468153
Cited 55 times | Published
...nt Sager admitted to cutting the victim's throat. [9] He claims this testimony would have allowed the jury to conclude that Voorhees was not sufficiently involved in the crime to warrant a jury verdict of first-degree murder and was admissible under section 90.804(2)(c), Florida Statutes (1991), which states: HEARSAY EXCEPTIONS.The following are not excluded under s....
...Voorhees. [11] We agree with Voorhees that it was error for the trial court not to admit Sager's separate statements to both Mississippi and Pasco County officers while Sager was in jail in Mississippi; the statements were admissible on the basis of section 90.804(2)(c)....
969 So. 2d 938, 2007 WL 1933048
Supreme Court of Florida | Filed: Jul 5, 2007 | Docket: 1403693
Cited 55 times | Published
...). [2] The trial court ruled the evidence inadmissible as a dying declaration because it did not concern the "physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death." § 90.804(2)(b), Florida Statutes (2006)....
463 So. 2d 242
District Court of Appeal of Florida | Filed: Sep 26, 1984 | Docket: 448935
Cited 54 times | Published
...tion has been taken and the added party desires to use such testimony against a party represented by counsel at the deposition. Certainly, rule 1.330 is not intended to supplant the "former testimony" rule, now codified in the Florida Evidence Code, section 90.804(2)(a), Florida Statutes (1983)....
...is admissible. Dinter v. Brewer, supra . Accordingly, we do not determine whether Dr. Smith's deposition testimony should be admissible under rule 1.330 because we hold it admissible under the "former testimony" rule. The "former testimony" rule in section 90.804(2)(a) is the counterpart of Federal Rule of Evidence 804(b)(1) and basically codifies the common law rule of evidence previously recognized....
71 So. 3d 86, 2011 WL 2652195
Supreme Court of Florida | Filed: Jul 8, 2011 | Docket: 1164518
Cited 51 times | Published
...The postconviction court accepted the defense's argument that Bravo's affidavit constituted newly discovered evidence, but ruled that the affidavit would not constitute substantive evidence because it was inadmissible hearsay and Bravo was never declared to be "unavailable" under section 90.804(1), Florida Statutes (2009)....
785 So. 2d 1182, 2001 WL 197003
Supreme Court of Florida | Filed: Mar 1, 2001 | Docket: 450172
Cited 50 times | Published
...ing, and Carpenter were jailed together. As more fully explained below, we determine that the trial court committed harmful error in prohibiting Shay and Mendoza from testifying concerning Pailing's statements. 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 declarant's pecun...
...Pailing, and said words that interpretedamounted to that they were friends with the defendant. And I think that the absence of corroborating circumstances to corroborate what they were saying, and the inherent untrustworthiness, makes the statements inadmissible under Florida Statute 90.804(2)(c)....
...[16] After careful consideration, we determine that the trial court erred in ruling that the testimony of both Shay and Mendoza could not be admitted because Pailing did not explicitly state to either of them that Carpenter was not involved in the crime. Carpenter correctly notes that section 90.804(2)(c) applies to statements "tending to expose the declarant to criminal liability and offered to exculpate the *1203 accused." In Voorhees v....
...desk drawer; and (6) one of Pailing's fingerprints was found on Powell's vehicle. We determine that this was sufficient corroboration to allow Pailing's self-inculpatory, out-of-court statements to come before the jury for consideration pursuant to section 90.804(2)(c), Florida Statutes, [18] and we cannot conclude beyond a reasonable doubt that the trial court's error in excluding Pailing's statements was harmless....
...tutional provision. But I do conclude that there was harmful error during the penalty phase, and I would remand for a new penalty phase. Declarations Against Interest In Voorhees, the trial court ruled that a hearsay statement was inadmissible under section 90.804(2)(c) because the declarant did not "exonerate" the defendant in the hearsay statement....
...efore the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for the objection. Opportunity shall be given to make the objection out of the presence of the jury. [14] The current version of section 90.804(2)(c) is substantively identical to the version in effect at the time that Powell was murdered....
...g on admissibility of statement against interest), and Michael H. Graham, Handbook of Federal Evidence, § 804.3 at 656 n. 19 (4th ed.1996). We decline to change established Florida law on this point. [18] Because we base our determination here upon section 90.804(2)(c), Florida Statutes, we need not reach Carpenter's argument that Pailing's self-inculpatory, out-of-court statements should have been admitted under the principles announced in Chambers v....
678 So. 2d 309, 1996 WL 166498
Supreme Court of Florida | Filed: Apr 11, 1996 | Docket: 1470546
Cited 49 times | Published
...Second, Jones contends that even if Schofield's alleged confessions did not fall within an exception to the hearsay rule they were admissible under due process principles as set forth in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Section 90.804(2), Florida Statutes (1995), provides in pertinent part: (2) HEARSAY EXCEPTIONS.The following are not excluded under s....
...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. (Emphasis added.) By its plain language, in order for a statement against penal interest to be admissible, section 90.804(2) requires a showing that the declarant is unavailable as a witness....
...t that burden. Consequently, we find that Schofield's alleged confessions are not admissible under the declaration against penal interest exception to the hearsay rule. [3] Even if Jones had established that Schofield was unavailable for purposes of section 90.804(2)(c), Jones also had the burden of establishing that Schofield's alleged confessions were statements against penal interest within the meaning of section 90.804(2)....
...Having determined that Jones failed to demonstrate that Schofield was unavailable, we need not consider whether Schofield met these additional burdens. Lastly, Jones contends that Schofield's statements must be admitted under Chambers irrespective of the unavailability requirement of section 90.804....
...State, 453 So.2d 17, 21 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984). Of course, unlike Mississippi at the time Chambers was decided, Florida recognizes a declaration against penal interest exception to the hearsay rule. Baker; § 90.804(2)(c), Fla.Stat....
...In Baker, this Court simply extended the common law declaration against interest hearsay exception to cover declarations against penal interest. 336 So.2d at 369. Our decision in Baker was subsequently codified by the legislature in the Florida Evidence Code as section 90.804(2)(c) which includes the unavailability requirement....
536 So. 2d 206, 1988 WL 128166
Supreme Court of Florida | Filed: Dec 1, 1988 | Docket: 1759665
Cited 47 times | Published
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to § 90.804(1)....
699 So. 2d 988, 1997 WL 377595
Supreme Court of Florida | Filed: Jul 10, 1997 | Docket: 1321175
Cited 45 times | Published
...Escobars for an alleged traffic violation in April 1988. Both Dennis and Douglas Escobar were sentenced to life in prison in California. [2] Effective October 1, 1990, the legislature deleted from the hearsay exception of statement against interest, section 90.804(2)(c), Florida Statutes (1989), the following provision: A statement or confession which is offered against the accused in a criminal action, and which is made by a codefendant or other person implicating both himself and the accused, is not within this exception....
707 So. 2d 688, 1998 WL 54134
Supreme Court of Florida | Filed: Feb 12, 1998 | Docket: 1260192
Cited 45 times | Published
...rsation with Lightbourne. The trial court declined to admit any of the proffered evidence, including Chavers' 1989 affidavit, after finding that none of the hearsay statements fell within any exception to the hearsay rule. Id. On appeal, we examined section 90.804(2)(c), Florida Statutes (1991), [6] the *692 statement against interest hearsay exception, [7] and found no error in the trial court's refusal to admit the hearsay statements into evidence....
...the credibility of his statements. Id. (emphasis added). As in Lightbourne, we find that the hearsay evidence presented in this case does not expose Fields to criminal liability [8] and lacks the requisite indicia of reliability for admission under section 90.804(2)(c), Florida Statutes (1993)....
...y at his resentencing. This issue is without merit. Professor Ehrhardt has written that "[w]hen a witness refuses to testify concerning the subject matter of a hearsay statement in the face of court order to testify, she is `unavailable' pursuant to section 90.804(1)(b)....
...atters that occurred during the first couple of weeks of August of 1985. (Emphasis added.) For this reason, there does not appear to be any "procurement or wrongdoing" on the State's part which would nullify Fields' status as an unavailable witness. § 90.804, Fla....
...uest violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution"). [6] Before a statement can even be considered as a possible exception to the hearsay rule under section 90.804, the declarant must be found unavailable as a witness within the meaning of section 90.804(1). In Lightbourne, Chavers was found in contempt of court and declared unavailable as a witness because, alternatively, he suffered from a lack of memory, section 90.804(1)(c), and he refused to answer questions, section 90.804(1)(b)....
24 So. 3d 17, 2009 WL 2612524
Supreme Court of Florida | Filed: Dec 10, 2009 | Docket: 1648320
Cited 45 times | Published
...d that the trial court did not err in finding the statement to be an excited utterance. B. Dying Declaration Exception We now examine whether Destefano's statement was admissible under the dying declaration exception to the hearsay rule. Pursuant to section 90.804(2)(b), Florida Statutes (2007), and this Court's prior rulings, the deceased must have known and "appreciated his condition as being that of an approach to certain and immediate death," although it is not necessary that the declarant "make express utterances" that he would never recover....
873 So. 2d 270, 2004 WL 112875
Supreme Court of Florida | Filed: Jan 22, 2004 | Docket: 1732876
Cited 44 times | Published
...ty to rebut because the State could not question the victim. See id. at 412. In this case, the trial court allowed the introduction of the affidavits only to the extent that the information contained therein related to family history as specified in section 90.804(2)(d), Florida Statutes (2003)....
...[8] Section 921.141(1), Florida Statutes (2003), provides that "[a]ny such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements." [9] Section 90.804(2) contains four hearsay exceptions that apply when the declarant is unavailable as a witness....
859 So. 2d 465, 2003 WL 22097428
Supreme Court of Florida | Filed: Sep 11, 2003 | Docket: 401040
Cited 42 times | Published
...EXCLUSION OF STATEMENTS MADE BY VALESSA ROBINSON TO DETECTIVES Davis next argues that the trial court reversibly erred by not permitting Detective Iverson and Lieutenant Marsicano to testify regarding Valessa Robinson's statements made to them. The assertion is that these statements should have been admitted pursuant to section 90.804(2)(c), Florida Statutes (2002), [7] which is the declaration against interest hearsay exception....
...A similar request was made when Lieutenant Marsicano was called as witness. We agree with the trial court that there was no basis in what was presented to determine whether Detective Iverson or Lieutenant Marsicano could testify as to statements made to them by Valessa Robinson. For statements to be admitted under section 90.804(2)(c), the statements have to meet the requirements of that section....
...h sentence grounded on a bare majority of the jury's vote is unconstitutional; and (9) Florida's death penalty scheme is unconstitutional. [6] The remaining venirepersons challenged by Davis were venirepersons Whitman, Eustace, Junda, and Lopez. [7] Section 90.804, Florida Statutes, provides in pertinent part: (2) HEARSAY EXCEPTIONS.The following are not excluded under s....
473 So. 2d 1260, 67 A.L.R. 4th 917
Supreme Court of Florida | Filed: Jun 27, 1985 | Docket: 2469601
Cited 41 times | Published
...1739, 72 L.Ed.2d 153 (1982), any discovery violations. Brown was not entitled to a continuance because he obviously knew about Ricky at the time of Dudley's pre-trial statement. The alleged hearsay testimony concerning the family relationship between Brown and Ricky was either admissible under section 90.804(2)(d), Florida Statutes (1981), as a statement of family history by the unavailable declarant Ricky, or was harmless error in light of the compelling evidence of guilt against Brown....
787 So. 2d 765, 2001 WL 326683
Supreme Court of Florida | Filed: Apr 5, 2001 | Docket: 1495756
Cited 41 times | Published
...d that they arrived there around 9 p.m. He also testified to the jury that immediately after the interview during which these statements were made, not only was Davis arrested, but an arrest warrant was immediately prepared for the arrest of Brooks. Section 90.804(2)(c) provides: (2) HEARSAY EXCEPTIONS.The following are not excluded under s....
...tement 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. [6] § 90.804(2)(c), Fla....
...even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements. Williamson, 512 U.S. at 599-600, 114 S.Ct. 2431. Therefore, assuming the other requirements of section 90.804(2)(c) are met, it follows that a nontestifying codefendant or accomplice's confession or inculpatory statement which also implicates the defendant should only be admitted if it "sensibly and fairly can be redacted to include only those statements which are solely self-in-culpatory." Franqui v....
...The majority agrees that the two admitted statements as redacted were self-inculpatory from Davis's perspective. See Majority op. at 777. These two self-inculpatory statements as redacted were against Davis's penal interest; thus, these statements fall under section 90.804(2)(c), Florida Statutes....
...rustworthiness of the statements. See Maugeri v. State, 460 So.2d 975, 977 n. 3 (Fla. 3d DCA 1984) (citing United States v. Riley, 657 F.2d 1377, 1383 (8th Cir.1981)). [7] Rule 804(b)(3) of the Federal Rules of Evidence is the federal counterpart to section 90.804(2)(c) and is practically identical in its content....
...hat "the totality of the circumstances in which ... [the statement or] confession was made makes the statement inherently trustworthy and renders the declarant particularly worthy of belief." Id. at 1319. [14] See Fed. Rule Evid. 804(b)(3). [15] See § 90.804(2)(c), Fla....
552 So. 2d 1082, 1989 WL 118010
Supreme Court of Florida | Filed: Oct 5, 1989 | Docket: 1200553
Cited 38 times | Published
...Thus, the jury could have concluded, notwithstanding Hamilton's statement, that Stevens was involved in the murder of the victim. As the state concedes, trial counsel's objection to the introduction of Hamilton's statement would have been sustained under section 90.804(2)(c), Florida Statutes (1979), prohibiting the admission against an accused of confessions and other inculpatory statements of codefendants....
762 So. 2d 870, 2000 WL 350558
Supreme Court of Florida | Filed: Apr 6, 2000 | Docket: 472165
Cited 37 times | Published
...of the court file in the battery charge against appellant could not be admissible. It seems to me that this written statement meets the test of reliability which is fundamental to hearsay issues. I would allow this handwritten statement pursuant to section 90.804(2)(a), Florida Statutes....
...An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant's will. 2. A statement made under circumstances that indicate its lack of trustworthiness. [7] Section 90.804(2)(a) (1997), cited by Justice Wells in his concurrence, provides for the following exception to the hearsay rule: (a) Former testimony.Testimony given as a witness at another hearing of the same or a different proceeding, or in a de...
991 So. 2d 337, 2008 WL 2130222
Supreme Court of Florida | Filed: May 22, 2008 | Docket: 1400229
Cited 36 times | Published
...suffered "from an inherent lack of credibility." The circuit court found that due to this lack of credibility, the evidence did not demonstrate the presence of corroborating circumstances showing the trustworthiness of the statements as required by section 90.804(2)(c), Florida Statutes, and did not satisfy the second prong of Jones II. We do not reach the issue of whether the trial judge erred in his consideration of the admissibility of the evidence under section 90.804(2)(c) because we conclude that the evidence did not satisfy the second prong of Jones II. Assuming without deciding that the newly discovered evidence would be admissible pursuant to section 90.804(2)(c), Hitchcock has not demonstrated that the newly discovered evidence would probably produce an acquittal or life sentence on retrial because the witnesses were not convincing....
826 So. 2d 932, 2002 WL 1338424
Supreme Court of Florida | Filed: Jun 20, 2002 | Docket: 1167696
Cited 36 times | Published
...Witness Whitaker, who discovered the deputy, testified that he saw a black man wearing red shorts and a white T-shirt running from the scene in a manner similar to men in Vietnam under fire. (William Reaves served in Vietnam.) Witness Hinton was ruled unavailable to testify, [pursuant to] section 90.804(1)(b), Florida Statutes (1991), and his testimony from the 1987 trial was read into the record....
926 So. 2d 1118, 2006 WL 240418
Supreme Court of Florida | Filed: Feb 2, 2006 | Docket: 467119
Cited 36 times | Published
...statement made by Jean Klimeczko concerning Penalver and Ibar's visit to the residence during the weekend of the murders. [7] The State, however, contends the statement was admissible because Klimeczko was an unavailable witness at trial pursuant to section 90.804(1)(c), Florida Statutes (1999). We agree with the State and affirm. Section 90.804(1)(c) provides, in pertinent part, that a witness is unavailable if *1135 the witness "[h]as 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...
639 So. 2d 1, 1994 WL 113407
Supreme Court of Florida | Filed: Apr 7, 1994 | Docket: 1310511
Cited 36 times | Published
...Witness Whitaker, who discovered the deputy, testified that he saw a black man wearing red shorts and a white T-shirt running from the scene in a manner similar to men in Vietnam under fire. (William Reaves served in Vietnam.) Witness Hinton was ruled unavailable to testify, section 90.804(1)(b), Florida Statutes (1991), and his testimony from the 1987 trial [1] was read into the record....
853 So. 2d 1051, 2003 WL 1922772
Supreme Court of Florida | Filed: Apr 24, 2003 | Docket: 1189195
Cited 36 times | Published
...s argument that the trial court's ruling was in error. Further, the affidavit in question does not fall under one of the four hearsay exceptions by which the statement of a declarant who is unavailable as a witness may be admitted into evidence. See § 90.804(2), Fla....
979 So. 2d 896, 2008 WL 657867
Supreme Court of Florida | Filed: Mar 13, 2008 | Docket: 1714383
Cited 34 times | Published
...However, we note that the declarant in Crawford was not physically unavailable to testify, but was instead excluded based on a marital privilege exemption. See Crawford, 541 U.S. at 40, 124 S.Ct. 1354. Florida's statutory law and the decisions from other courts offer some guidance on this issue. Section 90.804(1)(d), Florida Statutes (2007), defines unavailability as including a declarant who is unable to be present or testify at the trial because of a "then-existing physical or mental illness or infirmity." [4] This is consistent with the r...
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1). § 90.803(23), Fla. Stat. (2007). [4] Section 90.804(1) provides five ways in which a declarant may be unavailable as a witness, including being exempt based on privilege, refusing to testify despite a court order to do so, suffering a lack of memory on the subject matter, unable to be p...
66 So. 3d 866, 36 Fla. L. Weekly Supp. 273, 2011 Fla. LEXIS 1343, 2011 WL 2374188
Supreme Court of Florida | Filed: Jun 16, 2011 | Docket: 2362063
Cited 33 times | Published
...However, in response, the trial court granted the State's motion in limine to exclude the testimony of Farmer on the basis that the testimony presented conflicting hearsay that was not sufficiently corroborated to satisfy the applicable admissibility predicate under section 90.804(2)(c), Florida Statutes (2005)....
...the correct result in this case is to reinstate our reversal of the convictions and sentences and to remand for a new trial. PARIENTE and PERRY, JJ., concur. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [2] Section 90.804(2)(c) reads as follows: 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 declaran...
14 So. 3d 985, 34 Fla. L. Weekly Supp. 461, 2009 Fla. LEXIS 1125, 2009 WL 2045416
Supreme Court of Florida | Filed: Jul 16, 2009 | Docket: 1649938
Cited 33 times | Published
...hat, as a result, the evidence would not probably produce an acquittal on retrial. First, Marek has failed to demonstrate that the testimony about Wigley's statements would be admissible in the guilt phase as a statement against interest pursuant to section 90.804(2)(c), Florida Statutes (2008). Section 90.804(2)(c) provides that where the declarant is unavailable as a witness, there is a hearsay exception for statements against the declarant's interest: Statement against interest....
...Wigley's statements that he killed before or that he strangled the victim were not "so far contrary to the declarant's pecuniary or proprietary interest" that "a person in the declarant's position would not have made the statement unless he or she believed it to be true." § 90.804(2)(c), Fla....
667 So. 2d 756, 1995 WL 752298
Supreme Court of Florida | Filed: Dec 21, 1995 | Docket: 341564
Cited 33 times | Published
...To permit the use of rule 3.220 depositions as substantive evidence would discourage and chill the use of discovery depositions and would limit the criminal pre-trial discovery process. As noted by Judge Ervin, courts construing the term "deposition" in section 90.804(2)(a) [2] have reached similar conclusions. See, e.g., Rodriguez; Smith v. State, 606 So.2d 641 *760 (Fla. 1st DCA 1992) (substantive use of a deposition taken solely for the purpose of discovery is improper under section 90.804(2)(a)); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990) (only depositions taken to perpetuate testimony under rule 3.190(j) are admissible as substantive evidence under section 90.804(2)(a)), quashed in part on different grounds, 614 So.2d 453 (Fla.1993); Jackson v. State, 453 So.2d 456 (Fla. 4th DCA 1984) (deposition taken under 3.220 and not 3.190 not admissible under 90.804(2)(a))....
...ion in this case. Consequently, the decision of the district court of appeal is approved. It is so ordered. GRIMES, C.J., and SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur. NOTES [1] Rule 3.220(h) was previously numbered as rule 3.220(d). [2] Section 90.804(2)(a), Florida Statutes (1993), provides: (2) Hearsay Exceptions....
647 So. 2d 106, 1994 WL 195459
Supreme Court of Florida | Filed: May 19, 1994 | Docket: 437750
Cited 32 times | Published
...they would probably produce an acquittal on retrial. Jones v. State, 591 So.2d 911 (Fla. 1991). At the outset, it must be noted that it is not clear whether these affiants could testify of their conversations with Pruitt in the event of a new trial. Section 90.804(2)(c), Florida Statutes (1993), provides that if a declarant is unavailable, a statement intending to expose him to criminal liability and offered to exculpate the accused is inadmissible "unless corroborating circumstances show the tr...
679 So. 2d 1151, 1996 WL 182805
Supreme Court of Florida | Filed: Apr 18, 1996 | Docket: 1665956
Cited 32 times | Published
...enge himself, or divert attention to another." Id. at 545, 106 S.Ct. at 2064. In the instant case, the State contends that Jeffery's taped conversations were properly admitted under the "statement against interest" exception to the hearsay rule. See § 90.804(2)(c), Fla.Stat. (1991). [3] Section 90.804(2)(c) provides that a statement that would subject the declarant to criminal liability is admissible provided that the declarant is unavailable as a witness....
...consider clearly established mitigating factors; (9) prosecutorial misconduct deprived Farina of a fair sentencing hearing; and (10) the prosecutor's attempt to hand-pick a judge deprived Farina of a fair trial. [2] Issues 1, 2, 4, 5, 6, and 10. [3] Section 90.804(2)(c), Florida Statutes (1991), creates an exception to the hearsay rule for statements against interest, provided that the declarant is unavailable as a witness....
699 So. 2d 1332, 1997 WL 369557
Supreme Court of Florida | Filed: Jul 3, 1997 | Docket: 1693938
Cited 30 times | Published
...The statement was hearsay and fails to qualify under any hearsay exception. When a codefendant's confession is obtained in a custodial setting, as was the case here, the only hearsay exception that has potential applicability is the "statement against interest" exception. [7] See *1338 § 90.804(2)(c), Fla. Stat. (1995). Section 90.804(2)(c) states: Statement Against Interest....
...issible, unless corroborating circumstances show the trustworthiness of the statement. Of course, for a statement to be admissible as a statement against interest, a trial judge also must find that: (1) the declarant is unavailable as a witness, see § 90.804(1), Fla....
646 So. 2d 167, 1994 WL 525905
Supreme Court of Florida | Filed: Sep 29, 1994 | Docket: 2518073
Cited 29 times | Published
...he police. [5] In fact, at one point during the suppression hearing the trial judge remarked that three of the people displayed in the photopack "could have been the defendant's brother if not the defendant himself." [6] Although Pittman argued that section 90.804(2)(c), Florida Statutes (1989) ("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."), a...
748 So. 2d 950, 1999 WL 731664
Supreme Court of Florida | Filed: Sep 16, 1999 | Docket: 1504621
Cited 29 times | Published
...Unavailability shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to § 90.804(1)....
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to § 90.804(1)....
850 So. 2d 417, 2002 WL 31600017
Supreme Court of Florida | Filed: Nov 21, 2002 | Docket: 2518193
Cited 28 times | Published
...Second, Marquard contends that he was denied a full evidentiary hearing when the trial judge failed to take judicial notice of witness Harrison's prior testimony from the codefendant's original trial proceeding. Marquard posits that this would be permissible under sections 90.803(22) and 90.804(2)(a) of Florida Statutes (1999)....
...This provision does not require the court to take judicial notice of Harrison's former testimony in the prosecution of Abshirethe State did not have the same motive to inquire as to Marquard's participation that it would have in Marquard's postconviction evidentiary hearing. Section 90.804(2)(a) is likewise inapplicable as it requires the State to have a similar motive to develop the testimony at issue....
...ifferent 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. § 90.804(2)(a), Fla....
538 So. 2d 486, 1989 WL 6157
District Court of Appeal of Florida | Filed: Jan 31, 1989 | Docket: 472426
Cited 28 times | Published
...Appellant contends that the testimony of the two officers who spoke to victim Zore immediately after he was shot failed to establish that Zore's statements were made under a sense of impending death, as required to establish the dying declaration exception to the hearsay rule. *490 § 90.804(2)(b), Fla....
...1983), the trial court's denial of defendant's motion for dismissal of the kidnapping charge was proper. We need not discuss the propriety of the imposed sentence which, under our holding, will be vacated. Accordingly, we reverse the defendant's conviction and remand for a new trial. REVERSED AND REMANDED. NOTES [1] Section 90.804(2)(b), Florida Statutes (1987) establishes the following exception to the general rule excluding hearsay: Statement under belief of impending death....
453 So. 2d 17
Supreme Court of Florida | Filed: Jun 7, 1984 | Docket: 1162922
Cited 27 times | Published
...but [the appellant]." He further argues that the testimony is not hearsay, but in the alternative, if it is, it should have been admitted under the hearsay exception which allows declarations against penal interest to be introduced in evidence. See § 90.804(2)(c), Fla....
...The appellant has offered no plausible demonstration of a failure to investigate the crime. *21 In the alternative, the appellant argues that if the proffered testimony is hearsay, it should have been admitted as a declaration against penal interest. Section 90.804(2)(c), Florida Statutes (1981), requires that in order to utilize this exception to the hearsay rule, the appellant must demonstrate that the declarant is unavailable to testify as a witness....
...This case does not involve a confession to the specific crime but, rather, a discussion, prior to the crime, about committing a similar crime. There is no corroborating evidence and no assurances whatever of the reliability of the statement. Also, section 90.804(2)(c), Florida Statutes (1981), states: 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....
606 So. 2d 641, 1992 WL 217181
District Court of Appeal of Florida | Filed: Sep 4, 1992 | Docket: 677678
Cited 25 times | Published
...The state objected on the ground that appellant had not followed the procedure for perpetuating testimony, as provided in Florida Rule of Criminal Procedure 3.190(j), and that appellant made no showing that Blackwell was unavailable as a witness under the former-testimony hearsay statute, Section 90.804(2)(a), Florida Statutes (1989)....
...r perpetuating the testimony. Appellant argues that the trial court's ruling excluding such testimony was erroneous in that deposition testimony is admissible under Florida's long-standing rule allowing the admission of former testimony, codified in section 90.804, and that in civil cases Florida's Evidence Code and the rules of civil procedure are considered in pari materia and, if the evidence would be considered admissible pursuant to the provisions of either the statute or the rule, the deposition may be admitted....
...And see Barnett v. State, 444 So.2d 967 (Fla. 1st DCA 1983); Clark v. State, 572 So.2d 929 (Fla. 5th DCA 1990); Campos v. State, 489 So.2d 1238 (Fla. 3d DCA 1986). We acknowledge that the above decisions are at variance with the interpretation placed on section 90.804(2)(a) by a respected commentator in the field of evidence, who states: [T]here is some Florida authority that in a criminal case a deposition must be admissible under the Rules of Criminal Procedure. If those rules do not provide for its admission, the deposition cannot be admitted under section 90.804(2)(a). There appears to be no logical reason to draw this distinction. Depositions should be admissible under section 90.804(2)(a) in both criminal and civil cases....
...reby superseded to the extent they are in conflict with the code." Thus, if procedural rules limiting the use of depositions as evidence are "rules of *645 evidence," as it would appear they would be, the Florida Supreme Court has already ruled that section 90.804(2)(a) controls and the deposition would be admissible....
...Ehrhardt, Florida Evidence § 804.2, at 670-71 (1992 ed.) (footnotes omitted). Although Professor Ehrhardt makes an extremely logical argument, paralleling appellant's position that the criminal rules, like the civil rules, should be read in conjunction with section 90.804(2)(a), this court is required to follow our established case law....
576 So. 2d 953, 1990 WL 175055
District Court of Appeal of Florida | Filed: Apr 4, 1991 | Docket: 1669811
Cited 25 times | Published
...ppellant's sister. In any event, John Baldwin admitted, at trial, that he stopped by appellant's house the night of the crimes. The state finds no error in the trial court's refusal to admit the statements as statements against interest, pursuant to section 90.804(2)(c), because Baldwin was available for trial and did in fact testify....
533 So. 2d 750, 1988 WL 110770
Supreme Court of Florida | Filed: Oct 20, 1988 | Docket: 1232620
Cited 24 times | Published
...[2] He now argues that the trial court erred in refusing to admit hearsay evidence that Jon told others that he had seen dead bodies before and was the last to see the victims alive which, appellant urges, is a statement against interest within the meaning of section 90.804(2)(c), Florida Statutes (1979)....
970 So. 2d 789, 2007 WL 1556649
Supreme Court of Florida | Filed: May 31, 2007 | Docket: 1695221
Cited 24 times | Published
...Although the four affidavits Preston presented with his writ of error coram nobis would support his hypothesis that Scott killed Walker, as we stated in Preston III, At best, if [this] newly discovered evidence had been known at trial, it could have been used to impeach Scott Preston and perhaps introduced under section 90.804(2)(c), Florida Statutes (1987)....
701 So. 2d 1155
Supreme Court of Florida | Filed: May 29, 1997 | Docket: 1470459
Cited 24 times | Published
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to section 90.804(1)....
992 So. 2d 120, 2008 WL 4148992
Supreme Court of Florida | Filed: Sep 10, 2008 | Docket: 401215
Cited 21 times | Published
...First, the out-of-court declarant must be unavailable to testify. Second, the out-of-court declaration must be contrary to the "interests" of the declarant. Brinson v. State, 382 So.2d 322, 324 (Fla. 2d DCA 1979). Brinson has since been superseded by statute. Section 90.804(2)(c), Florida Statutes (1997), modified the ruling in Baker by requiring outside corroborating circumstances indicating the truthfulness of the statement....
3 So. 3d 1149, 34 Fla. L. Weekly Supp. 208, 2009 Fla. LEXIS 245, 2009 WL 395782
Supreme Court of Florida | Filed: Feb 19, 2009 | Docket: 1652723
Cited 21 times | Published
...The Supreme Court in Crawford held that where an out-of-court testimonial statement is offered, it must be established that the defendant had the prior opportunity to cross-examine the declarant and that the witness must be shown to be unavailable. Id. at 68, 124 S.Ct. 1354. Section 90.804(2)(a), Florida Statutes (2003), similarly provided that former testimony may be received under certain circumstances, where the declarant is unavailable, as follows: (a) Former testimony.Testimony given as a witness at another hearin...
...of Rewis. However, this same complaint would appear to apply to anyone who might have read Rewis's testimony, other than Rewis himself. Because Muehleman has not demonstrated that the procedure followed by the trial court violated the provisions of section 90.804, Florida Statutes, or the principles set forth in Crawford, we deny relief on this claim....
549 So. 2d 179, 1989 WL 106349
Supreme Court of Florida | Filed: Sep 14, 1989 | Docket: 1719890
Cited 19 times | Published
...Moreover, because the testimony of A is hearsay within hearsay in that it combines the hearsay statements of both B and C, it is inadmissible unless the hearsay statements of both B and C conform "with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804." § 90.805, Fla. Stat. (1985). The statement of C would be admissible as an exception to the hearsay rule under section 90.804(2)(c), Florida Statutes (1985), because it tends to expose declarant C to criminal liability and exculpate the defendant provided: (1) declarant B was available to testify as a witness or B's hearsay statement to A itself qualified as...
...The proffered testimony of A fails on all counts. First, B was not available to testify. Second, B's hearsay statement of what C told him was not a statement against B's interests and was not otherwise an exception to the hearsay rule under either section 90.803 or 90.804....
644 So. 2d 54, 1994 WL 261447
Supreme Court of Florida | Filed: Jun 16, 1994 | Docket: 1249058
Cited 19 times | Published
...After a medical and psychological evaluation, he was found incompetent to testify. His testimony was deferred, and when he testified three months later, he professed to have a lack of memory and refused to answer questions. Chavers was found in contempt of court and declared unavailable as a witness. Section 90.804 of the Florida Evidence Code [2] provides that when a declarant is unavailable as a witness, hearsay evidence can be admitted only if it qualifies under one of the following four exceptions: (1) former testimony; (2) statement under be...
...ade the statement unless he 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. § 90.804(2)(c), Fla....
...dentiary hearing because defense counsel failed to inform jail personnel of their intent to call him as a witness. In any event, Taylor's letter does not fall within any of the exceptions for hearsay, regardless of his availability. See §§ 90.803, 90.804, Fla. Stat. (1993). Lightbourne argues that Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), controls his case and requires that the evidence be admitted regardless of section 90.804....
...port. We affirm the order denying postconviction relief. It is so ordered. GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD, Senior Justice, concur. NOTES [1] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). [2] § 90.804, Fla....
460 So. 2d 975, 10 Fla. L. Weekly 1
District Court of Appeal of Florida | Filed: Dec 18, 1984 | Docket: 1765995
Cited 18 times | Published
...After lengthy and thorough consideration, we have determined that this evidence, although uncontestably hearsay, section 90.802, Florida Statutes (1981), was properly admitted as a statement against penal interest under the hearsay exception embodied in section 90.804(2)(c), Florida Statutes (1981), [1] the reception of which did not offend the defendant's right to confrontation under the sixth amendment of the United States Constitution....
...In determining that issue, we generally adopt the test stated in United States v. Riley, 657 F.2d 1377 (8th Cir.1981), cert. denied, 459 U.S. 1111, 103 S.Ct. 742, 74 L.Ed.2d 962 (1983), for the admission of inculpatory statements against penal interest [2] in criminal cases under the federal equivalent to section 90.804(2)(c): [B]efore an inculpatory statement against penal interest is admissible under Rule 804(b)(3), it must be shown that (1) the declarant is unavailable as a witness, (2) the statement must so far tend to subject the declarant to cri...
...1254, 55 *980 L.Ed.2d 774 (1978); United States v. Brainard ; but see United States v. Satterfield, 572 F.2d 687 (9th Cir.1978), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978). Finally, we reject Maugeri's claims that the final sentence of section 90.804(2)(c) [7] precludes the admission of all inculpatory statements against penal interest....
...State, 426 So.2d 1180 (Fla. 5th DCA 1983). [8] The provision patently does not apply to this case in which the admission of one crime provides the motive for the commission of another. See also Law Revision Council Note 1976, 6 C Fla. Stat. Ann. § 90.804(2)(c) at 362 (1979)....
...which the inherent likelihood that the declarant is attempting to serve his own interest by implicating someone else has often led to the exclusion of the statement even under the federal rule, which, of course, does not include the last sentence of section 90.804(2)(c)....
980 So. 2d 1126, 2008 WL 723786
District Court of Appeal of Florida | Filed: Mar 19, 2008 | Docket: 1735771
Cited 17 times | Published
...e statements were neither testimonial in nature, under the proscription of Crawford, and therefore did not violate the Confrontation Clause, nor were unreliable, made *1133 under circumstances that would render them untrustworthy in contravention of section 90.804(2)(c), Florida Statutes (2007)....
...We agree that the first part of the statement where Laurencio confessed to Martin to his own involvement in the robbery was admissible as an exception to Florida's hearsay rule, section 90.802, Florida Statutes (2007), as against Laurencio's penal interest. See § 90.804(2)(c), Fla....
432 So. 2d 1346
District Court of Appeal of Florida | Filed: May 4, 1983 | Docket: 1677429
Cited 16 times | Published
...ive negligence. Finally, appellees did not adequately demonstrate unavailability of Ms. Crossin. [1] The trial judge should not have admitted this evidence and we cannot consider the admission of this evidence harmless error. Even though on retrial, Section 90.804(2)(a) may permit the admission of this deposition "If the party against whom the testimony is offered ......
4 So. 3d 1274, 2009 Fla. App. LEXIS 2935, 2009 WL 839036
District Court of Appeal of Florida | Filed: Apr 1, 2009 | Docket: 1218113
Cited 16 times | Published
...Masaka agreed with the State that the proffered statements were hearsay; however, he contended that the statements were nevertheless admissible under the exception to the hearsay rule for statements that are against a declarant's penal interest. Specifically, section 90.804(2)(c), Florida Statutes (2005), provides, (c) Statement against interest....
...the gun both before and after the shooting and had at least some intent to commit a robbery that day. Because this evidence tends to support Masaka's defense that Panzo was the shooter, it satisfied the relevance requirement for admissibility under section 90.804(2)(c)....
...ns used in the crime. Even though the codefendant did not admit to being directly involved in the murder itself, the trial court found, and the supreme court implicitly agreed, that the statements were sufficiently incriminating to be admitted under section 90.804(2)(c) because the codefendant's "efforts to destroy evidence connect[ed] him to the crime." Id....
...This was particularly true for Panzo's statements that he had the gun earlier in the day and that he had disposed of it two days later. Like the codefendant's statements in Franqui, Panzo's statements concerning his possession and sale of the gun were sufficiently incriminating to be admissible under section 90.804(2)(c) because Panzo's efforts to dispose of the evidence connected him to the crime....
...As Masaka pointed out to the trial court, each of these statements was incriminatory when considered in context, and the statements as a whole were "certainly enough to get [Panzo] charged," thereby putting Panzo's penal interest into play. Thus, these statements met the "self-inculpatory" requirement for admission under section 90.804(2)(c)....
...Because the trial court's ruling effectively denied Masaka the right to present his defense, it constituted harmful error. F. Conclusion Here, the trial court's ruling excluding the proffered portions of Panzo's statement was based on its erroneous view of the requirements for admissibility under section 90.804(2)(c) and its erroneous assessment of the proffered evidence....
675 So. 2d 976, 1996 WL 279211
District Court of Appeal of Florida | Filed: May 29, 1996 | Docket: 1322518
Cited 15 times | Published
...the girls as to what they should say about the incident. The court also excluded Powell's statements to other people that she had done the shooting. On retrial these declarations, *980 which are statements against penal interest, should be admitted. Section 90.804(2)(c), Florida Statutes....
503 So. 2d 335
District Court of Appeal of Florida | Filed: Mar 6, 1987 | Docket: 1452788
Cited 15 times | Published
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1)....
...paragraph 2. which requires that the child either testify or be unavailable as a witness. Appellant notes that in order to be declared unavailable for purposes of this subparagraph, the child would have to meet the definition of unavailability under section 90.804(1) or the court would have to conclude that the child's participation in the trial would result in "a substantial likelihood of severe emotional or mental harm." We cannot sustain the state's response that the hearing previously conduc...
658 So. 2d 1101, 1995 WL 421142
District Court of Appeal of Florida | Filed: Jul 19, 1995 | Docket: 439126
Cited 15 times | Published
...unications with the carrier regarding the horsepower of the engine. Although the insured was deceased by the time of trial, the evidence of what he told the carrier was admissible under the declaration against interest exception to the hearsay rule. § 90.804(2)(c), Fla....
649 So. 2d 1366, 1994 WL 698378
Supreme Court of Florida | Filed: Dec 15, 1994 | Docket: 59104
Cited 15 times | Published
...as irrelevant, highly prejudicial and, therefore, inadmissible. Rhodes, 547 So.2d at 1205. The transcript of Fuller's testimony was admissible for two reasons. First, the transcript qualifies under the former testimony exception to the hearsay rule. § 90.804(2)(a), Fla....
782 So. 2d 339, 25 Fla. L. Weekly Supp. 909, 2000 Fla. LEXIS 2043, 2000 WL 1587794
Supreme Court of Florida | Filed: Oct 26, 2000 | Docket: 456391
Cited 14 times | Published
...98-2, § 1, Laws of Fla. As noted by the Committee, chapter 98-2, section 1 effectively replaces the narrow section 90.803 hearsay exception for "former testimony," which applies regardless of a declarant's availability to testify, with the much broader section 90.804 "former testimony" exception, [2] which only applies when the declarant is unavailable....
...nstitutional right to confront adverse witnesses; (2) this expanded former-testimony hearsay exception would result in "trial by deposition," thereby precluding the fact-finder from evaluating witness credibility; (3) the amendment simply strips the section 90.804(2)(a) former-testimony exception of its "unavailability" requirement, thereby making the section 90.804 exception obsolete; (4) the amendment is inconsistent with several rules of procedure, thereby causing confusion as to which rule should control; [4] and (5) the expanded hearsay exception will shift expense burdens relating to the int...
...ted, chapter 98-2, section 1 is not based on well established law; nor is it modeled after the Federal Rules of Evidence. See Charles W. Ehrhardt, Florida Evidence § 802.1 (2000 ed.) (stating that hearsay exceptions contained in sections 90.803 and 90.804 generally restate the law that existed prior to the adoption of the Evidence Code)....
...We must all not only continue that effort, but should also discuss and explore methods that will enhance cooperative spirit and action. SHAW, J., concurs. NOTES [1] See Amendments to the Florida Rules of Evidence, No. SC00-607 (Fla. July 13, 2000) (unpublished order). [2] Section 90.804(2)(a), Florida Statutes, provides an exception to the hearsay rule for: 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 co...
...ing, a predecessor in interest, or a person with a similar interest." [3] A declarant is "unavailable" when he or she does not have to testify due to privilege, refuses to testify, or cannot testify because of a lack of memory; death or illness. See § 90.804(1), Florida Statutes (1999)....
420 So. 2d 932
District Court of Appeal of Florida | Filed: Oct 26, 1982 | Docket: 1306523
Cited 14 times | Published
...Rule 32(a)(3) of the Federal Rules of Civil Procedure governs the admissibility of a deposition in the same proceeding in which it was taken. The definition of unavailability is broader in Rule 32(a)(3) [Fla.R.Civ.P. 1.330] than it is in Rule 804(a) of the Federal Rules of Evidence [§ 90.804(a), Fla....
...hat an agency or conspiracy existed. See Tresvant v. State, 396 So.2d 733 (Fla.3d DCA 1981). Second, although Heinz was shown to be unavailable by reason of his absence from the trial and the inability of the plaintiff to procure his attendance, see § 90.804(1)(e), Fla. Stat. (1981), any argument that Heinz's statement comes within the hearsay exception as a statement against interest, see § 90.804(2)(c), is defeated by the lack of showing that when Heinz spoke at the deposition and admitted, among other things, the transfer of the assets, he was aware of a risk of harm to his own pecuniary or penal interests....
...Seaboard Coast Line Railroad Company, 327 So.2d 193 (Fla. 1976). Third, while Heinz's testimony was taken in compliance with the law during a proceeding different from the instant trial, it does not otherwise qualify under the "former testimony" exception to the hearsay rule, see § 90.804(2)(a), since Martha, the party against whom the testimony was being offered at trial, was not present at its taking and had no opportunity or motive to develop Heinz's testimony by direct, cross or redirect examination....
691 So. 2d 1068, 1997 WL 109221
Supreme Court of Florida | Filed: Mar 13, 1997 | Docket: 1424060
Cited 14 times | Published
...Based upon the record, the testimony was therefore relevant to the pecuniary-gain aggravator. The trial judge therefore did not abuse his discretion in admitting this testimony. *1073 As his third issue, Lawrence contends that because the State did not show that Sonya Gardner was unavailable pursuant to section 90.804, Florida Statutes (1993), the trial judge erred in allowing the State to read her guilt-phase testimony to the resentencing jury....
...Due to the investigator's failure to obtain the directions offered by Gardner's boyfriend, a subpoena was never issued to Gardner's current location. Based on these facts, we find that the State's efforts to procure Gardner as a witness were not sufficient to establish Gardner's unavailability, as that term is defined by section 90.804(1), Florida Statutes (1993)....
...nstrate a witness's unavailability before introducing her prior testimony is applicable to penalty phase proceedings. Hitchcock v. State, 578 So.2d 685, 690 (Fla.1990), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). Section 90.804(1)(e) provides that a witness may be declared unavailable if the witness "[i]s absent from the hearing, and the proponent of [the witness's] statement *1077 has been unable to procure [the witness's] attendance or testimony by process or other reasonable means." The former testimony is admissible only if the witness is demonstrated to be unavailable at the later proceeding, and the burden of showing unavailability is on the party who seeks to use the testimony. § 90.804(1), (2)(a), Fla....
...was incorrect or should be changed. Relevance alone is obviously not sufficient to permit admission of the prior statement. As previously noted, a witness's unavailability is an absolute prerequisite to the use of the witness's prior testimony under section 90.804. See Hitchcock, 578 So.2d at 690-91; Ehrhardt, Florida Evidence § 804.1 (1995 ed.) ("If the declarant is available to testify during the trial, evidence of a hearsay statement is not admissible under any of the section 90.804 exceptions even though all the other statutory requirements are met")....
636 So. 2d 746, 1994 WL 16813
District Court of Appeal of Florida | Filed: Jan 19, 1994 | Docket: 1361994
Cited 12 times | Published
...was irrelevant to this case. If there were more detailed objections to this evidence, we have been unable to find them in the record. On appeal, Grace argues that the admission of these depositions violates Florida Rule of Civil Procedure 1.330 and section 90.804(2)(a), Florida Statutes (1991) because they are hearsay....
816 So. 2d 554, 2002 WL 571672
Supreme Court of Florida | Filed: Apr 18, 2002 | Docket: 1557482
Cited 12 times | Published
...That was my mission in life .... I cut them out, I highlighted them and I put them in plastics. I wanted people to know what I had done and what I had contributed for your children and my children. Garcia urges that Pardo's former sworn testimony was admissible under section 90.804(2)(a), Florida Statutes (1997), which provides an exception to the hearsay rule, when the declarant is unavailable, for: (a) Former testimony.Testimony given as a witness at another hearing of the same or a different proceeding ......
...court abused its discretion in excluding the evidence. [12] Because Garcia was not tried with Pardo, the State did not have the identical motive in cross-examining Pardo as it would have had if the State tried Pardo and Garcia together. Nonetheless, section 90.804(2)(a) does not require an identical motive but only a "similar motive"....
...Amador say what happened to that deal? *568 A: He didn't want to do it by him himself and it had been scheduled to be done another time. It appears from the record that the trial court allowed these statements into evidence based on the statement against interest exception to the hearsay rule, section 90.804(2)(c), Florida Statutes, which provides: (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 liab...
...Garcia was acquitted in that case. [11] The severance of the trials of Pardo and Garcia occurred before Pardo's trial, and therefore Garcia was not a codefendant in Pardo's trial. [12] Garcia also argues that the statement should have been admitted under section 90.804(2)(c), governing statements against interest....
453 So. 2d 844
District Court of Appeal of Florida | Filed: Jun 26, 1984 | Docket: 1162806
Cited 11 times | Published
...First, appellants say that such testimony was inadmissible hearsay. We disagree. It was conceded by counsel at trial that Sean was unavailable to testify. This testimony of Officer Barker qualified as a declaration against interest of an unavailable witness under Section 90.804(2)(c), Florida Statutes....
784 So. 2d 1091, 2001 WL 459178
Supreme Court of Florida | Filed: May 3, 2001 | Docket: 1744175
Cited 10 times | Published
...He claims that he was deprived of his constitutional right to confront the witnesses against him because the trial court allowed Miller's former testimony in evidence in lieu of his testifying in person. Happ further maintains that appellate *1100 counsel failed to argue that the trial court's reliance on section 90.804(1)(b), Florida Statutes (1989), was error because that section does not apply in this case....
...to the admission of Miller's former testimony. Trial counsel's objection concerned only the admission of Miller's reason for his unavailability to testify. In fact, trial counsel conceded that the court could find Miller unavailable to testify under section 90.804(1)(b) of the Evidence Code (stating that a witness is unavailable where he or she "[p]ersists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so")....
...Happ asserts the trial court committed fundamental error by admitting Miller's former testimony instead of requiring Miller to testify in person because Happ was deprived of his constitutional right to confront Miller. He further argues that the trial court misapplied section 90.804 and that the trial court should have relied on rule 3.640 of the Rules of Criminal Procedure....
...Even if this argument had been raised on direct appeal, it appears that this Court would have found the claim to be without merit. Appellate counsel cannot be faulted for failing to raise a meritless claim on appeal. See Kokal. As for Happ's second contention, that the trial court misapplied section 90.804 of the Evidence Code, we find that claim to be without merit as well. Section 90.804 states: (1) DEFINITION OF UNAVAILABILITY....
...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 statement in preventing the witness from attending or testifying. § 90.804, Fla....
...Thus, Miller made it quite clear to the court that he was not going to testify despite the possibility of fines or imprisonment. Under these circumstances, a court order would have been futile. Accordingly, Happ's claim that the trial court misapplied section 90.804 is without merit. See Stano v. State, 473 So.2d 1282, 1286 (Fla. 1985) (holding that trial court did not abuse its discretion in declaring parents of victim unavailable under section 90.804(1)(b) where parents repeatedly refused to testify despite threat of imprisonment or fines)....
...The rule places definite limits on when former testimony may be admitted in a new trial. As Happ argues, the rule does not include within its list of circumstances a finding that the witness is "unavailable" based on a refusal to testify. In this respect, rule 3.640 appears to be stricter than section 90.804 (unavailability) with regard to the admissibility of former testimony. In other words, section 90.804 of the Evidence Code permits the admission of former testimony if the declarant is declared unavailable under one of the enumerated grounds, whereas rule 3.640 limits admissibility to one of the grounds stated therein, none of which includes "unavailable due to refusal to testify." However, we need not decide whether rule 3.640 conflicts with section 90.804 of the Evidence Code because the record in this case supports the trial court's ruling under either provision....
411 So. 2d 240, 33 U.C.C. Rep. Serv. (West) 350
District Court of Appeal of Florida | Filed: Mar 2, 1982 | Docket: 1696919
Cited 10 times | Published
...ate court in Estate of Zaharion v. Security National Bank, supra . [2] If Mrs. Childrey's letter fell within the definition of hearsay, section 90.801(1)(c), Florida Statutes (1979), it would have been admissible as a statement against her interest. § 90.804(2)(c), Fla....
64 So. 3d 1232, 36 Fla. L. Weekly Supp. 247, 2011 Fla. LEXIS 1283, 2011 WL 2224777
Supreme Court of Florida | Filed: Jun 9, 2011 | Docket: 1443275
Cited 10 times | Published
...was "unavailable." As noted by the district court, "unavailability" occurs where the witness "[i]s 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." Corona, 929 So.2d at 594 (quoting § 90.804(1)(e), Fla....
...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 proponent of his or her statement in preventing the witness from attending or testifying." § 90.804(1)(e), Fla....
657 So. 2d 46, 1995 WL 380312
District Court of Appeal of Florida | Filed: Jun 28, 1995 | Docket: 1514489
Cited 10 times | Published
...However, even if proffered testimony can be considered, we find that the error was not harmless because defense counsel could, at trial, introduce the deposition of McBride, in which he admits to having sexual relations with the victim, on the grounds that McBride was unavailable under section 90.804, Florida Statutes (1993)....
407 So. 2d 1039
District Court of Appeal of Florida | Filed: Dec 29, 1981 | Docket: 467572
Cited 10 times | Published
...hich sets forth the requirements for perpetuating testimony. These requirements were not met in the present case; therefore, the deposition was inadmissible. The State has argued that Basiliere and James are distinguishable due the recent passage of § 90.804(2)(a) as part of the Florida Evidence Code....
...testimony is now offered,... had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination. Even assuming that testimony at a discovery deposition is taken with a "similar motive" as examination at trial, § 90.804(2)(a) cannot be used to justify admission of the deposition....
...The deposition in this case was inadmissible as evidence because it failed to comply with the Rules of Criminal Procedure, not because it was "hearsay." The necessity of meeting the procedural requirements for the taking of depositions is recognized in § 90.804(2)(a), which states that the deposition must be "taken in compliance with law." Although we reverse and remand for a new trial on the first point, we feel that it is appropriate to reach the second point so that it will not be necessary to reargue it if a new trial occurs....
531 So. 2d 154, 1988 WL 97909
Supreme Court of Florida | Filed: Sep 22, 1988 | Docket: 365211
Cited 9 times | Published
...rong case. The evidence concerning the fingerprints, the blood, and the food stamps was most persuasive. At best, if the newly discovered evidence had been known at trial, it could have been used to impeach Scott Preston and perhaps introduced under section 90.804(2)(c), Florida Statutes (1987)....
876 So. 2d 13, 2004 WL 1091144
District Court of Appeal of Florida | Filed: May 18, 2004 | Docket: 1245463
Cited 9 times | Published
...Curtis contends that the trial court deprived him of the right to due process of law by excluding Butler's confession from evidence. This argument is made with an acknowledgment that Butler's confession did not meet the formal requirements of the declaration against penal interest exception to the hearsay rule. Section 90.804(2)(c), Florida Statutes (2001) excludes from the hearsay rule: [a] statement which, at the time of its making, was so far contrary to the declarant's pecuniary or proprietary interest *19 or tended to subject the declarant to liability...
...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. However, this exception is applicable only when the declarant is unavailable as a witness. See § 90.804(2), Fla....
...It did not help him that Florida generally recognizes an exception for declarations against penal interest, because the exception could not be employed under the facts of his case. Indeed, the Florida courts have consistently applied the constitutional analysis in Chambers, despite the exception in section 90.804(2)(c), Florida Statutes, for declarations against penal interest....
...Butler categorically stated that he was the one who shot Mrs. Stephens. There can be no doubt that this statement was inculpatory. The final part of the test in Chambers, that the witness is available for cross-examination, is the most perplexing. Section 90.804(2) provides that a declaration against penal interest is admissible if the declarant is unavailable....
...Other Florida courts have also concluded that the availability of the declarant does preclude the admission of a third-party confession under constitutional principles. In Czubak v. State, 644 So.2d 93, 95 (Fla. 2d DCA 1994), for example, the court noted that, regardless of the provisions of section 90.804, Chambers "requires the admission of such reliable hearsay statements of witnesses to a third-party confession even if the `confessor' was available as a witness at the trial....
111 So. 3d 778, 35 Fla. L. Weekly Fed. S 503
Supreme Court of Florida | Filed: Sep 16, 2010 | Docket: 60230888
Cited 8 times | Published
25 By qualifying as former testimony under section 90.804(2)(a), Danford’s and Ward’s testimony is not
656 So. 2d 241, 1995 WL 340212
District Court of Appeal of Florida | Filed: Jun 7, 1995 | Docket: 1683694
Cited 8 times | Published
...not the admission of a co-conspirator during the course and in furtherance of the conspiracy. See § 90.803(18)(e), Fla. Stat. (1991). Nor was there any record showing or finding that John Barrett was unavailable to testify at Burnside's trial. See § 90.804(1), Fla....
699 So. 2d 619, 1997 WL 348108
Supreme Court of Florida | Filed: Jun 26, 1997 | Docket: 1321174
Cited 8 times | Published
...hich would have shown that Voorhees admitted to both Pasco County officers and a fellow inmate in Mississippi that Voorhees was the one who slit Bostic's throat. The trial court found this testimony inadmissible in the guilt phase of the trial under section 90.804(2)(c), Florida Statutes (1991), on the basis that these statements did not exonerate Sager but rather tended only to lessen his responsibility....
699 So. 2d 984, 1997 WL 377587
Supreme Court of Florida | Filed: Jul 10, 1997 | Docket: 1321572
Cited 8 times | Published
...Escobars for an alleged traffic violation in April 1988. Both Dennis and Douglas Escobar were sentenced to life in prison in California. [3] Effective October 1, 1990, the legislature deleted from the hearsay exception of statement against interest, section 90.804(2)(c), Florida Statutes (1989), the following provision: A statement or confession which is offered against the accused in a criminal action, and which is made by a codefendant or other person implicating both himself and the accused, is not within this exception....
871 F.3d 1231, 2017 U.S. App. LEXIS 18367
Court of Appeals for the Eleventh Circuit | Filed: Sep 22, 2017 | Docket: 6156965
Cited 7 times | Published
trustworthiness of the statement.” Fla. Stat. § 90.804(2)(c) (1989). The Florida rule thus largely tracks
942 So. 2d 874, 2006 WL 2620912
Supreme Court of Florida | Filed: Sep 14, 2006 | Docket: 1737242
Cited 7 times | Published
...e deputy, testified he saw a black man wearing red shorts and a white T-shirt running from the scene in a manner similar to men in Vietnam under fire. (William Reaves served in Vietnam.) Witness Hinton was ruled unavailable to testify, [pursuant to] section 90.804(1)(b), Florida Statutes (1991), and his testimony from the 1987 trial was read into the record....
...Reaves has failed to demonstrate an abuse of discretion by the trial court on either of these issues. Hinton was physically present as a witness for the State but refused to testify at the 1992 retrial and was ruled unavailable to testify pursuant to section 90.804(1)(b), Florida Statutes (1991)....
589 So. 2d 818, 1991 WL 239342
Supreme Court of Florida | Filed: May 9, 1991 | Docket: 1730649
Cited 7 times | Published
...(A) Upon motion and hearing in camera and upon a finding that there is a substantial likelihood that the child will suffer at least moderate emotional or mental harm if required to testify in open court or that such child is unavailable as defined in section 90.804(1), Florida Statutes, the trial court may order that the testimony of a child under age 16 who is a victim or witness be taken outside of the courtroom and shown by means of closed circuit television....
965 So. 2d 38, 2007 WL 1556674
Supreme Court of Florida | Filed: May 31, 2007 | Docket: 1509199
Cited 7 times | Published
...s he believed it to be true. A statement tending to expose the *46 declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. Id. at 57 (quoting § 90.804(2)(c), Fla....
787 So. 2d 112, 2001 WL 388034
District Court of Appeal of Florida | Filed: May 23, 2001 | Docket: 721614
Cited 7 times | Published
...A non-testifying accomplice's statement against penal interest is admissible as a hearsay exception if corroborating circumstances show the statement has "particularized guarantees of trustworthiness." See Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); § 90.804(2)(c), Fla....
961 So. 2d 229, 2007 WL 1362872
Supreme Court of Florida | Filed: May 10, 2007 | Docket: 1515799
Cited 7 times | Published
...ered evidence which would be admissible." Jones, 709 So.2d at 521. The Sanchez-Velasco affidavit would not be admissible during a retrial because it does not meet any of the criteria for admission of a prior statement by an unavailable witness under section 90.804, Florida Statutes (2006)....
...ker v. State, 873 So.2d 270, 282 (Fla. 2004) (quoting Blackwood v. State, 777 So.2d 399, 411 (Fla.2000)). In Parker, this Court affirmed a trial court's decision to exclude contents of an affidavit by a deceased victim that were not admissible under section 90.804, Florida Statutes, on grounds that "the State had no fair opportunity to rebut because the State could not question the victim." Id....
490 So. 2d 32, 11 Fla. L. Weekly 203
Supreme Court of Florida | Filed: May 1, 1986 | Docket: 1489237
Cited 7 times | Published
...Neither the state nor the defense disputes that Nelson was not present during any of the above-mentioned conversations. The state predicated the admission of the tape made at Echol's home by treating it as a statement against interest, an exception to hearsay under section 90.804(2)(c), Florida Statutes (1983). [2] The state contended that because Echols refused to testify and had claimed his fifth amendment privilege against self-incrimination, Echols was an unavailable declarant as section 90.804 requires. The state's reliance on section 90.804(2)(c) in support of the tape's introduction into evidence is misplaced. Section 90.804(2)(c), which sets out the requirements for the statement against interest exception expressly states that "[a] statement or confession which is offered against the accused in a criminal action, and which is made by a co-defendant or ot...
...nts are introduced through the testimony of a third party or because the speaker takes the stand and refuses to answer questions concerning the statements. 381 So.2d at 687. As a fallback argument, the state contends that neither the requirements of section 90.804(2)(c) nor the confrontation clause were actually violated because Nelson's name never appears directly on the tape....
...It is so ordered. BOYD, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH, SHAW and BARKETT, JJ., concur. NOTES [1] Although Nelson died in March 1986, we publish this opinion because the discussion of evidentiary problems may have significance in other cases. [2] § 90.804(2)(c), Fla....
411 So. 2d 316
District Court of Appeal of Florida | Filed: Mar 23, 1982 | Docket: 1327250
Cited 7 times | Published
...cond trial, [1] was a basis for allowing the State, over McClain's objection, to use Daniel's testimony given at McClain's first trial. [2] We reject the State's contention that these circumstances made Daniel "unavailable as a witness" under either Section 90.804(1)(d) or Section 90.804(1)(e), Florida Statutes (1979)....
...Bell, 500 F.2d 1287 (2d Cir.1974) (witness who had undergone surgery and who would be unable to testify for at least two-and-a-half months could be determined to be unavailable), persuades us that the State's contention is untenable. The State's argument that the witness comes within the definition in Section 90.804(1)(e) fares worse....
...important to our resolution of the issues on this appeal. [2] There is no question here that were the unavailability requirement met, this former testimony would qualify for admission as an exception to the rule making hearsay evidence inadmissible. Section 90.804(2)(a), Florida Statutes (1979), defines former testimony as: "Testimony given as a witness at another hearing of the same or a different proceeding ......
837 So. 2d 400, 2003 WL 60944
Supreme Court of Florida | Filed: Jan 9, 2003 | Docket: 2487425
Cited 7 times | Published
...The Fourth District agreed with Abreu's objections, reversed his conviction, and remanded for a new trial. Abreu, 804 So.2d at 444-45. That court determined that a 1998 amendment to section 90.803(22) effectively removed the unavailability requirement of section 90.804(2)(a), Florida Statutes (1999), as a prerequisite to the use of former testimony in lieu of live testimony. See Abreu, 804 So.2d at 443. Prior to 1998, only section 90.804(2)(a) governed the admission of former testimony in criminal proceedings, and it required that the witness be unavailable....
444 So. 2d 967
District Court of Appeal of Florida | Filed: Dec 2, 1983 | Docket: 451970
Cited 7 times | Published
...The state's brief recognizes this to be the case, as it defends the trial court's ruling by arguing that the witness was, because of her lack of memory, an unavailable witness, thereby making her deposition admissible as substantive evidence pursuant to the "former testimony exception" to the hearsay rule in Section 90.804(2)(a), Florida Statutes (1981)....
...At the trial of that case, the state read the contents of a criminal discovery deposition into evidence when it was determined that the witness was unavailable for trial. On appeal the state argued that introduction of the deposition was proper under the former testimony exception to the hearsay rule in Section 90.804(2)(a)....
...Rejecting this argument, we held that the criminal discovery deposition was inadmissible as substantive evidence because Rule 3.220(d), Florida Rules of Criminal Procedure, limits the use of a criminal discovery deposition at trial solely to impeachment of the witness and that Section 90.804(2)(d) does not justify admission of discovery deposition testimony as substantive evidence contrary *969 to the limited use provisions in Rule 3.220(d)....
664 So. 2d 2, 1995 WL 59589
District Court of Appeal of Florida | Filed: Dec 15, 1995 | Docket: 2511111
Cited 7 times | Published
...3d DCA 1987) (in analogous circumstances, objection waived when not timely made). As to the second point on appeal, we find no abuse of discretion in the trial court's conclusion that the proffered statements were not statements against penal interest. See § 90.804(2)(c), Fla....
566 So. 2d 40, 1990 WL 123106
District Court of Appeal of Florida | Filed: Aug 22, 1990 | Docket: 547743
Cited 7 times | Published
...In support of the JCC's admission of the Glumb transcript, claimant points to Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984), in which we affirmed the trial judge's admission into evidence of two depositions from a prior case because they fell under the former testimony hearsay exception of section 90.804(2)(a), Fla....
...In both the instant case and Johns-Manville the objecting party had sufficient opportunity during the prior proceeding to cross-examine the witnesses whose testimony was sought to be introduced under the exception. As a result, most of the requirements of section 90.804(2)(a) were met. Section 90.804(2)(a), however, also requires that the declarant, whose testimony is sought to be introduced, be unavailable....
569 So. 2d 897, 1990 WL 175910
District Court of Appeal of Florida | Filed: Nov 14, 1990 | Docket: 1660676
Cited 6 times | Published
...ith equally compelling circumstances warranting the exercise of certiorari review. The order on review in this case barred admission of *899 testimony offered under the dying declaration exception to hearsay. More specifically, the trial court found section 90.804(2)(b), Florida Statutes (1989) to be unconstitutional and in violation of the First, Fifth, Sixth and Fourteenth Amendments of the United States Constitution as well as Article I, Sections 3, 9 and 16 of the Florida Constitution....
...th administered in court. Woodcock's case, I Leach, 502. Id. at 638-639, citing Chief Baron Eyre, in Rex v. Woodcock, 1 Leach 500, 168 Eng. Rep. 352 (K.B. 1789). Now codified in the Florida Evidence Code, enacted in 1976, and more specifically, *900 section 90.804(2)(b), Florida Statutes (1989), the dying declaration exception to hearsay, provides in part: (2) Hearsay exceptions....
...n independent proof of guilt is unavailable!" (Page 4, opinion.) Admission of dying declarations is justified on the grounds of public necessity, manifest justice and the sense that impending death makes a false statement by the decedent improbable. Section 90.804, Law Revision Council Note 1976....
489 So. 2d 1238, 11 Fla. L. Weekly 1358
District Court of Appeal of Florida | Filed: Jun 17, 1986 | Docket: 2588866
Cited 6 times | Published
...Campos has filed a statement in this appeal contending that the trial court erred in excluding from evidence the discovery deposition of an unavailable witness. We affirm. While the discovery deposition, taken pursuant to Florida Rule of Criminal Procedure 3.220(d), may have qualified as a hearsay exception under section 90.804(2)(a), Florida Statutes (1983), it was still inadmissible as substantive evidence absent compliance with Florida Rule of Criminal Procedure 3.190(j)....
453 So. 2d 456
District Court of Appeal of Florida | Filed: Jul 13, 1984 | Docket: 1162759
Cited 6 times | Published
...s of Criminal Procedure, and not under the auspices of Rule 3.190(j), Florida Rules of Criminal Procedure, which latter rule is for the purpose of perpetuating testimony. We disagree with Jackson's argument that Bac's deposition was admissible under Section 90.804(2)(a), Florida Statutes (1982): (2) Hearsay exceptions....
483 So. 2d 791, 11 Fla. L. Weekly 390
District Court of Appeal of Florida | Filed: Feb 12, 1986 | Docket: 1511935
Cited 6 times | Published
...Although the cases cited by appellant in support of admissibility of the letter are on point, we find the letter was properly excluded on hearsay grounds due to the lack *796 of "corroborating circumstances [which] show the trustworthiness of the statement." § 90.804(2)(c), Fla....
438 So. 2d 46, 1983 Fla. App. LEXIS 20164
District Court of Appeal of Florida | Filed: Aug 23, 1983 | Docket: 380060
Cited 6 times | Published
...ing given the above unsworn statement, was deposed in this case but refused to testify on grounds of self incrimination. It is undisputed that he was unavailable at trial, Peninsular having been unable to procure his attendance within the meaning of Section 90.804(1)(e), Florida Statutes (1981). Peninsular contends that the trial court erred in refusing to allow into evidence the statement of Singleton as a declaration against interest of an unavailable witness under Section 90.804(2)(c), Florida Statutes, which provides in pertinent part: (2) Hearsay Exceptions....
...A.L.R.3d annotation, supra, indicate. I do not feel that the two Florida cases cited would serve as authority for review in this case. ON MOTION FOR REHEARING NIMMONS, Judge. Appellant's motion for rehearing suggests that we failed to properly apply Section 90.804(2)(c), Florida Statutes, regarding declarations against interest....
69 So. 3d 316, 2011 Fla. App. LEXIS 12899, 2011 WL 3586140
District Court of Appeal of Florida | Filed: Aug 17, 2011 | Docket: 2322902
Cited 6 times | Published
...We reject this argument because Looney was decided on other grounds prior to Crawford, and, thus, did not address the dispositive issue here regarding whether the statements were testimonial in nature subjecting them to the Confrontation Clause. Appellant next argues that Miller's statements were not admissible under section 90.804(2)(c), Florida Statutes (2009) as statements against interest, and contends that this case is distinguishable from Machado....
...Defendant's reliance on Brooks v. State, 787 So.2d 765, 775 (Fla.2001) is misplaced. In Brooks, the trial court allowed the admission of a co-defendant's statements to an investigator prior to his arrest under the hearsay exception "statement against interest" pursuant to section 90.804(2)(c)....
...s of trustworthiness.'" 787 So.2d at 113 (quoting Lilly, 527 U.S. at 136-37, 119 S.Ct. 1887). Lastly, Appellant argues that to the extent his attorney failed to make the proper objections to the admission of the statements under Crawford or sections 90.804(2)(c) and 90.803(18)(e), his attorney's performance was deficient, and this deficient performance prejudiced him....
...here is a reasonable probability that the results of the proceeding would have been different but for the inadequate performance). Because we find that no Crawford violation occurred and that trial counsel's objections properly preserved Appellant's section 90.804(2)(c) argument for appellate purposes, trial counsel's performance was not deficient on those grounds. Furthermore, because we conclude that the trial court properly admitted the statements under section 90.804(2)(c), and properly found the statements trustworthy and reliable pursuant to Machado, Appellant cannot show prejudice under Strickland in regards to counsel's failure to object based upon the trial court's sua sponte ruling that the statements were also admissible under section 90.803(18)(e)....
634 So. 2d 1077, 1994 WL 113409
Supreme Court of Florida | Filed: Apr 7, 1994 | Docket: 1473013
Cited 6 times | Published
...We find that none of the issues raised by Colina have merit. In his first two claims, Colina asserts that his right to confront witnesses against him was violated when the trial judge allowed the State to read Castro's testimony from the first trial to the jury. Pertinent to this claim is section 90.804(1)(b), Florida Statutes (1989), which defines "unavailability as a witness" as meaning that the declarant "[p]ersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." Colina...
...e testimony was admissible. The testimony was taken in the course of a judicial proceeding in which Colina was a party, and the record clearly establishes that there was a substantial reason why the original witness was not available, as required by section 90.804, Florida Statutes (1989)....
...445, 126 L.Ed.2d 378 (1993); Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242 (Fla. 1st DCA 1984), review denied, 467 So.2d 999 (Fla. 1985). We find that Colina had a full opportunity to confront this witness in the first trial and that the trial judge properly applied section 90.804 in declaring Castro unavailable....
644 So. 2d 93, 1994 WL 470329
District Court of Appeal of Florida | Filed: Sep 2, 1994 | Docket: 1672239
Cited 5 times | Published
...During Czubak's first trial, the defense proffered Ragsdale as a witness. The proffer established that Ragsdale would invoke his Fifth Amendment rights and refuse to answer questions. The trial judge in that first trial then declared Ragsdale "unavailable" as a witness under section 90.804, Florida *95 Statutes (1987), and Czubak was allowed, pursuant to section 90.804(2)(c), to call the witnesses to Ragsdale's purported "confessions" relating to the murder of Mrs....
...The evidence in Czubak's case amply supports the findings of the trial judge that the proffered witness statements were, contrary to the finding in Chambers, unreliable. Had the trial judge not made such a finding of unreliability, we would conclude, regardless of the provisions of section 90.804, that Chambers requires the admission of such reliable hearsay statements of witnesses to a third party confession even if the "confessor" was available as a witness at the trial....
804 So. 2d 442, 2001 WL 1266280
District Court of Appeal of Florida | Filed: Oct 24, 2001 | Docket: 1334709
Cited 5 times | Published
...or a different proceeding ... if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.... The amended version of section 90.803(22) stripped section 90.804(2)(a), Florida Statutes, of its requirement that the witness be unavailable....
944 So. 2d 255, 2006 WL 3228789
Supreme Court of Florida | Filed: Nov 9, 2006 | Docket: 1649497
Cited 5 times | Published
...ecause the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present."). [10] Thus, the "substantial likelihood of severe emotional, mental, or physical harm" that can make a declarant unavailable under section 90.804(24) is not synonymous with unavailability under the Confrontation Clause....
...Unavailability shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1)....
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1)....
...y shall include a finding by the court that the elderly person's or disabled adult's participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804(1)." [10] Craig involved testimony by closed-circuit television, outside the presence of the defendant....
589 So. 2d 355, 1991 WL 227652
District Court of Appeal of Florida | Filed: Nov 7, 1991 | Docket: 1440798
Cited 5 times | Published
...This case does not require us to decide whether the state may introduce one admission against interest in order to establish a corpus delicti when all of the admissions made by the defendant would, if fact, constitute a confession. In the case at bar there was no confession. It should be noted that section 90.804(2)(c), Florida Statutes (1989) specifically permits the introduction of out-of-court statements against interest....
21 So. 3d 173, 2009 Fla. App. LEXIS 17242, 2009 WL 3837159
District Court of Appeal of Florida | Filed: Nov 18, 2009 | Docket: 1656085
Cited 5 times | Published
...She stated that she did not remember *178 the events. Id. The court held that she was unavailable as a witness because of her lack of memory, and that her hearsay statements were admissible only if other corroborative evidence was presented. Id. at 1183. The court referenced section 90.804(1)(c), Florida Statutes, which states that a witness is unavailable if he "[h]as 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." Similarly in this case, E.O. was unavailable under section 90.804(1)(b), Florida Statutes, which states that a witness is unavailable if he or she "[p]ersists in refusing to testify concerning the subject-matter of the declarant's statement despite an order of the court to do so." E.O....
572 So. 2d 929, 15 Fla. L. Weekly Fed. D 2794
District Court of Appeal of Florida | Filed: Nov 15, 1990 | Docket: 132361
Cited 5 times | Published
...rom her, with the rear of the car facing her. After he left, she saw Clark go to the rear door on the driver's side, reach in, and open the front door. She saw him grab something off the seat, and leave. But she did not see what he took. Pursuant to section 90.804(2)(a), Florida Statutes (1987), the state then proffered a discovery deposition given by Knight....
...tive evidence, and they may be used only as the rule provides, to contradict or impeach the deponent's testimony. State v. Basiliere, 353 So.2d 820 (Fla. 1977); James v. State, 400 So.2d 571 (Fla. 5th DCA 1980), affirmed, 402 So.2d 1169 (Fla. 1981). Section 90.804(2)(a) of the evidence code does not change this rule in criminal cases....
846 So. 2d 1233, 2003 WL 21297232
District Court of Appeal of Florida | Filed: Jun 6, 2003 | Docket: 1301655
Cited 5 times | Published
...NOTES [1] The victim's statement was not admissible under section 90.803(23), Florida Statutes, because no showing was made that the victim was "unavailable." § 90.803(23)(a)2b, Fla. Stat. (2002). The perpetrator's alleged statement was not admissible under section 90.804(2)(c), Florida Statutes, for the same reason. § 90.804(1), Fla....
582 So. 2d 1225, 1991 WL 120781
District Court of Appeal of Florida | Filed: Jul 9, 1991 | Docket: 1716043
Cited 5 times | Published
...It appears that the State has proceeded under subsection 90.803(23) with respect to the rape treatment center physician in order to utilize the broader scope of the hearsay exception under subsection 90.803(23). [2] By contrast, the hearsay exception set forth in section 90.804, Florida Statutes, may only be invoked where the declarant is unavailable as a witness.
639 So. 2d 1022, 1994 WL 316653
District Court of Appeal of Florida | Filed: Jul 6, 1994 | Docket: 1712733
Cited 5 times | Published
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1)....
...A child is unavailable if the court finds based on expert testimony that a substantial likelihood exists that the child will suffer severe emotional or mental harm if the child testifies or if the child falls within the definitions for unavailability set forth in section 90.804(1)....
960 So. 2d 762, 32 Fla. L. Weekly Supp. 500, 2007 Fla. LEXIS 1231, 2007 WL 2002629
Supreme Court of Florida | Filed: Jul 12, 2007 | Docket: 1406563
Cited 5 times | Published
...In 2005, the Legislature abolished the "Deadman's Statute," repealing section 90.602, Florida Statutes, which pertained to testimony of interested persons regarding oral communication with a deceased or mentally incompetent person. See ch. 2005-46, § 1, Laws of Fla. In its stead, the Legislature created section 90.804(2)(e), Florida Statutes (2005), which added an exception to the hearsay rule to permit relevant communications of deceased or incompetent persons to be heard by the trier of fact....
...(3) For the purpose of this section, a "mentally incompetent person" is one who because of mental illness, mental retardation, senility, excessive use of drugs or alcohol, or other mental incapacity, is incapable of either managing his or her property or caring for himself or herself, or both. *764 Chapter 2005-46, § 2: 90.804 Hearsay exceptions; declarant unavailable (1) [No Change] (2) HEARSAY EXCEPTIONS.The following are not excluded under s....
...emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464. (b)-(c) [No Change] (2)-(3) [No Change] NOTES [1] See Fla. R. Jud. Admin. 2.140(b). [2] The hearsay exception created by section 90.804(2)(e), Florida Statutes (2005), applies "[i]n 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...
746 So. 2d 1162, 1999 WL 1075139
District Court of Appeal of Florida | Filed: Dec 1, 1999 | Docket: 1360568
Cited 5 times | Published
...the armed robbery charge. The defendant then filed a timely direct appeal to this court. We conclude that Tipton's extrajudicial statement to the investigators was hearsay and that it should not have been admitted in evidence against the defendant. Section 90.804(2)(c), Florida Statutes, creates an exception to the hearsay rule for statements against penal interest, but Tipton's statement does not meet the requirements for the use of this exception....
...statement was trustworthy. In determining whether a reasonable person would have believed the declarant's statement to be true, we must consider the circumstances existing at the time the statement was made, as well as the content of the statement. Section 90.804(2)(c), Florida Statutes allows the admission of a hearsay statement only if the statement was contrary to the declarant's interest "at the time of its making." *1168 The theory underlying this exception to the hearsay rule is that peop...
...Consequently, we cannot say with any confidence that a reasonable person in his position would have thought that the statement was true. The applicability of the exception for a statement against penal interest also depends on the content of the incriminating declaration. Section 90.804(2)(c) uses the term "statement" in a narrow sense to refer to a specific declaration or remark incriminating the speaker and not more broadly to refer to the entire narrative portion of the speaker's confession....
...indicia of reliability. The statement was offered into evidence as a declaration against penal interest, but as the Florida Supreme Court held in Franqui v. State, 699 So.2d 1312, 1319 (Fla. 1997), the declaration against penal interest exception in section 90.804(2)(c) is not a "firmly rooted" exception to the hearsay rule....
...Moreover, there is no evidence to suggest that the declarant was believable. To the contrary, the declarant conceded that he was willing to lie under oath to serve his own interests. Although the admission of Tipton's statement violated the Confrontation Clause of the Sixth Amendment, as well as section 90.804(2)(c) of the Florida Evidence Code, we are convinced beyond a reasonable doubt that the improper admission of the statement was harmless....
156 F. Supp. 2d 1301, 2001 U.S. Dist. LEXIS 17011, 2001 WL 939068
District Court, M.D. Florida | Filed: Aug 14, 2001 | Docket: 2187144
Cited 5 times | Published
...I mean, it was like he had no feeling about it. The State contends in this proceeding (Doc. 7, page 19) that Barrett's incriminating statement to Campbell was admissible as a declaration against penal interest, one of the exceptions to the hearsay rule recognized by Florida Statute § 90.804(2)(c) (1990): 90.804 Hearsay exceptions; declarant unavailable....
...s not the admission of a co-conspirator during the course and in furtherance of the conspiracy. See § 90.803(18)(e), Fla.Stat. (1991). Nor was there any record showing or finding that John Barrett was unavailable to testify at Burnside's trial. See § 90.804(1), Fla.Stat....
...There was no showing on the record in Petitioner's trial in fact, there was no discussion of the subject at all that Barrett was then "unavailable" as a witness, and unavailability is one of the expressed prerequisites to the admission in evidence of statements against penal interest. [18] See Fla. Stat. § 90.804(2) (1991); see also, Fed.R.Evid....
...The existence of a testimonial privilege, including the Fifth Amendment privilege against self incrimination, is one of the forms of unavailability recognized by the rule if the declarant "is exempted by a ruling of the court" on that ground. See Fla. Stat. § 90.804(1)(a) (1991); see also, Fed.R.Evid....
597 So. 2d 944, 1992 WL 86338
District Court of Appeal of Florida | Filed: Apr 29, 1992 | Docket: 1350989
Cited 5 times | Published
...However, in the present case we believe the circuit court was justified in rejecting the evidence submitted along with Comfort's motion. Unlike Norris the victim's "affidavit" is unsigned. Other witness affidavits, from persons who purportedly overheard the victim recant her statements, are not shown to be admissible under section 90.804(2)(c), Florida Statutes (1991)....
826 So. 2d 1064, 2002 WL 31126986
District Court of Appeal of Florida | Filed: Sep 27, 2002 | Docket: 1662966
Cited 4 times | Published
...ted Bailey of first-degree murder. Several months later in a pretrial ruling before Gates's trial, the trial court ruled that Sandy Brackett's testimony was admissible in Gates's trial under the hearsay exception for statements against interest. See § 90.804(2)(c), Fla....
643 So. 2d 1151, 1994 WL 535090
District Court of Appeal of Florida | Filed: Oct 5, 1994 | Docket: 1493156
Cited 4 times | Published
...e conversation in which a nontestifying codefendant implicated himself and the defendant in the robbery. The State argues that this hearsay statement was properly admitted as a statement against penal interest under the hearsay exception codified in Section 90.804(2)(c), Florida Statutes (1993)....
458 So. 2d 792
District Court of Appeal of Florida | Filed: Oct 16, 1984 | Docket: 1453467
Cited 4 times | Published
...Specifically, he maintains that (1) the admission at the administrative hearing of testimony given by a witness against him in his federal criminal trial was error, since that testimony was hearsay which did not meet the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983), and (2) the admission of petitioner's own criminal trial testimony was error because that testimony also constituted hearsay....
...The county candidly conceded this at oral argument. The sole remaining inquiry is whether the evidence would be admissible over objection in a civil trial, or, stated otherwise, whether the evidence satisfies the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983). We hold that it does not because the county failed to prove, as required, that the declarant was in fact unavailable. Section 90.804, Florida Statutes (1983) provides a list of exceptions which permit use of hearsay testimony where the declarant is unavailable. Subsection (1) of that statute defines unavailability. The pertinent provision, Section 90.804(1)(e), permits a finding of unavailability where the declarant "[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means." The county d...
617 So. 2d 323, 1993 WL 64805
District Court of Appeal of Florida | Filed: Mar 10, 1993 | Docket: 457725
Cited 4 times | Published
...Denny argues the evidentiary purpose of admitting these separate pretrial statements made by the codefendants would tend to show his lesser involvement in the murder. These statements were offered by Denny as being a hearsay exception, i.e., a statement against interest. [1] Section 90.804(2)(c) of the Florida Statutes provides in pertinent part that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustw...
...610, 70 L.Ed.2d 598 (1981). Under these facts, we find the trial court did not abuse its discretion in this evidentiary ruling. Accordingly, the convictions and sentences in this case are affirmed. STONE, J., and OWEN, WILLIAM C., Jr., Senior Judge, concur. NOTES [1] Section 90.804(2)(c), Florida Statutes (1987), reads in relevant part: (2) HEARSAY EXCEPTIONS....
426 So. 2d 1180
District Court of Appeal of Florida | Filed: Feb 9, 1983 | Docket: 1283244
Cited 4 times | Published
...Hearsay evidence alone cannot support an order revoking probation. Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980). The state argues that Burns's testimony as to the confession of Gary Walker, implicating the appellant, is a hearsay exception under section 90.804(2)(c), Florida Statutes (1982), on the basis that it constitutes a statement against interest, and therefore it alone could justify the order of revocation....
777 So. 2d 1153, 2001 Fla. App. LEXIS 1356, 2001 WL 121091
District Court of Appeal of Florida | Filed: Feb 14, 2001 | Docket: 462079
Cited 4 times | Published
...available and there is " other corroborative evidence of the abuse or offense. " State v. Townsend, 635 So.2d 949, 957 (Fla.1994); § 90.802(23)(a)2., Fla. Stat. (2000) (italics supplied). In addition to the indicia of unavailability provided for in section 90.804(1), a court may find a child to be unavailable to testify at trial if "the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm." § 90.803(23)(a)2.b., Fla....
208 So. 3d 271, 2016 Fla. App. LEXIS 18444
District Court of Appeal of Florida | Filed: Dec 16, 2016 | Docket: 4556763
Cited 4 times | Published
belief of impending death as a hearsay exception. § 90.804(2)(b), Fla. Stat. (2016). Once such a statement
382 So. 2d 322
District Court of Appeal of Florida | Filed: Dec 12, 1979 | Docket: 1255030
Cited 4 times | Published
...t given by Robert *325 Brown, it cannot be said that the trial court's ruling constitutes harmless error. Accordingly, we REVERSE and REMAND with instructions to grant appellant a new trial. RYDER and DANAHY, JJ., concur. NOTES [1] We are aware that Section 90.804(2)(c), Florida Statutes (1977), currently modifies the ruling in Baker v....
995 So. 2d 532, 2008 WL 2940450
District Court of Appeal of Florida | Filed: Aug 1, 2008 | Docket: 1684885
Cited 4 times | Published
...He argues that the trial court erred in allowing into evidence the deceased victim's testimony from Mr. Thompson's adversarial preliminary hearing. We affirm. Because the victim was unavailable for trial, his preliminary hearing testimony was admissible as former testimony under section 90.804(2)(a), Florida Statutes (2006)....
929 So. 2d 588, 2006 WL 1144187
District Court of Appeal of Florida | Filed: Apr 28, 2006 | Docket: 1392472
Cited 4 times | Published
..."Unavailability" is similarly defined under Florida's hearsay statutes to include a declarant (e.g. A.C.) who: [i]s absent from the hearing, and the proponent of the statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means. § 90.804(1)(e), Fla....
965 So. 2d 246, 2007 WL 2609441
District Court of Appeal of Florida | Filed: Sep 12, 2007 | Docket: 447082
Cited 3 times | Published
...as very sorry. Unfortunately, Freddie Daniels died just a few days after making this statement. The defense sought to admit these statements of "exoneration." Neither, however, could be considered within the limited exception for dying declarations. Section 90.804(2)(b) establishes a "dying declaration" exception to the general rule excluding hearsay: Statement under belief of impending death....
587 So. 2d 592, 1991 WL 200142
District Court of Appeal of Florida | Filed: Oct 9, 1991 | Docket: 1406198
Cited 3 times | Published
...United States v. Snyder, 872 F.2d 1351 (7th Cir.1989). As a consequence, a violation of the defendant's Sixth Amendment right can be overcome if the statements contain adequate "indicia of reliability." In addition, the witnesses' statements here qualified, under section 90.804, Florida Statutes (1989), as an exception to the hearsay rule authorizing the use of former testimony....
720 So. 2d 1109, 1998 WL 732949
District Court of Appeal of Florida | Filed: Oct 21, 1998 | Docket: 1719164
Cited 3 times | Published
...STONE, Chief Judge. We affirm Appellant's conviction on counts of attempted second-degree murder and aggravated battery. At trial, Appellant sought to introduce a co-defendant's sworn taped statement, under the hearsay exception for statements against interest. § 90.804(2)(c), Fla....
...bjected, during or after the jury instructions, to the court's failure to instruct the jury on the charge of attempted manslaughter. We reject Appellant's assertion that the co-defendant's statement is admissible as an exception to the hearsay rule. Section 90.804(2)(c), Florida Statutes, provides: (c) Statement against interest.-A statement which, at the time of its making, was so far contrary to the declarant's pecuniary or propriety interest or tended to subject the declarant to liability or...
...ccused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement. This court has previously recognized the requirements for admitting a co-defendant's pre-trial statement as a statement against interest under sec. 90.804(2)(c) in Perry v....
701 So. 2d 414, 1997 WL 699021
District Court of Appeal of Florida | Filed: Nov 12, 1997 | Docket: 1443172
Cited 3 times | Published
...terest." Id. at 1200. In fact, section 90.803(18) contains no requirement that the admission be "against interest." See also Ehrhardt, Florida Evidence § 803.18 (1996 Edition). Statements against interest are admissible under a different provision, section 90.804(2)(c).
25 So. 3d 49, 2009 Fla. App. LEXIS 19049, 2009 WL 4591048
District Court of Appeal of Florida | Filed: Dec 8, 2009 | Docket: 1195250
Cited 3 times | Published
...Federal Rule of Evidence 804(b)(6) makes admissible "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." (emphasis added). The only relevant provision in Florida's Evidence Code states in section 90.804(1), Florida Statutes, that a declarant is not unavailable for purposes of the unavailable witness hearsay exception, when the declarant's unavailability is "due to the procurement or wrongdoing of the party who is the proponent of his...
608 So. 2d 33, 1992 WL 170976
District Court of Appeal of Florida | Filed: Aug 24, 1992 | Docket: 1449059
Cited 3 times | Published
...Such an order is permissible only upon motion and after an in camera hearing has persuaded the judge that "there is a substantial likelihood that the child will suffer at least moderate emotional or mental harm if required to testify in open court or that such victim or witness is unavailable as defined in section 90.804(1)." § 92.54(1), Fla....
62 So. 3d 656, 2011 Fla. App. LEXIS 5184, 2011 WL 1376974
District Court of Appeal of Florida | Filed: Apr 13, 2011 | Docket: 2361614
Cited 3 times | Published
...he victim. Id. The State made a pretrial motion to exclude evidence about Butler's earlier confession. Id. The State argued that Butler's confession was not admissible as a statement against interest because Butler was available to testify. Id.; see § 90.804(2)(c), Fla....
990 So. 2d 1166, 2008 WL 4146669
District Court of Appeal of Florida | Filed: Sep 10, 2008 | Docket: 1687951
Cited 2 times | Published
...establish that there is a "substantial likelihood" that Andrea "will suffer at least moderate emotional or mental harm due to the presence of the defendant" if she "is required to testify in open court," or that Andrea is unavailable, as defined by section 90.804(1), Florida Statutes (2007)....
...substantial likelihood that the child ... will suffer at least moderate emotional or mental harm due to the presence of the defendant if the child ... is required to testify in open court, or that such victim or witness is unavailable as defined in s. 90.804(1), the trial court may order that the testimony of a child under the age of 16 ......
...Rather, the defendant contends that the children would suffer "harm" if returned to the victim upon entering the United States, as required by the family court custody order. Therefore, section 92.54 does not apply. We also find that, contrary to the defendant's assertion, the minor children are not unavailable as defined by section 90.804(1), because the minor children's inability to be present "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." Section 90.804(1) provides: (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...
...Although we conclude that section 92.54 does not apply in the instant case because the defendant does not allege that his minor children will suffer at least moderate emotional or mental harm if they are required to testify in open court due to the defendant's presence, and the children are not "unavailable" pursuant to section 90.804 due to the defendant's own actions, we have also looked to Florida Rule of Criminal Procedure 3.190(j)....
...l to the United States. Based on the record before us, the defendant is the only person hampering the children's return to the United States. The defendant, who has ignored and continues to ignore the family court custody order, may not, pursuant to section 90.804(1) and rule 3.190(j)(6), be permitted to profit from his contemptuous behavior....
...In the instant case, unlike in Harrell, the Confrontation Clause is not at issue because the defendant alleged in his motion that the minor children would testify in his favor. [3] It is interesting to note that the definition of "unavailability" in section 90.804(1) is similar to the language used in rule 3.190(j)(6).
553 So. 2d 274, 1989 WL 142198
District Court of Appeal of Florida | Filed: Nov 28, 1989 | Docket: 1258512
Cited 2 times | Published
...Servs., 520 So.2d 69 (Fla. 1st DCA 1988); Harris v. Game & Fresh Water Fish Comm'n, 495 So.2d 806 (Fla. 1st DCA 1986). Although appellant contends that the deposition could not be admitted without a showing that S.L. was "unavailable" within the meaning of Section 90.804(1), Florida Statutes (1987), [4] the deposition was clearly admissible, because the circumstances fell within the ambit of Rule 1.330(a)(3)(B) of the Florida Rules of Civil Procedure....
...tained in a manner inconsistent with sections 415.501-.514. § 415.504(4)(d)2, Fla. Stat. (1987). Expunction in unfounded cases was required within one year and within seven years for indicated reports. § 415.504(4)(c), Fla. Stat. (1987). [4] Under section 90.804(1), "unavailability" means that the declarant is exempted on the ground of privilege from testifying; persists in refusing to testify; suffered a lack of memory; is unable to be present or to testify because of death, illness or infirm...
62 So. 3d 1142, 2011 Fla. App. LEXIS 7430, 2011 WL 1938187
District Court of Appeal of Florida | Filed: May 23, 2011 | Docket: 82223
Cited 2 times | Published
...The defense sought to put on the testimony of Donald Gibson (Mr. Ahlgren's friend of 25 years) and Maegen DeWolfe (the defendant's daughter), that Mr. Ahlgren had confessed to stealing the air conditioners from the empty house. [2] Conceding the confession was hearsay, appellant relies, here as below, on section 90.804(2)(c), the declaration-against-penal-interest exception to the rule excluding hearsay: (2) The following are not excluded under s....
...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. § 90.804(2)(c), Fla....
...Stat. (2010). Mr. Ahlgren's unavailability was not at issue: He had died by the time of trial. His confession to theft was, moreover, plainly against his penal interest. But the trial court ruled the hearsay statements did not meet the criteria of section 90.804(2)(c), in that corroborating circumstances did not show the statements to be trustworthy....
981 So. 2d 484, 2008 WL 582512
District Court of Appeal of Florida | Filed: Mar 5, 2008 | Docket: 1515692
Cited 2 times | Published
...Both the State and Leighty attempted to subpoena Nieves to testify at trial, but were unsuccessful. Leighty filed a motion asking to use Nieves' deposition testimony in lieu of live testimony on a theory that she was Unavailable and her deposition testimony qualified as a hearsay exception as former testimony under section 90.804(2)(a), Florida Statutes....
...Leighty also conceded the supreme court has held in Rodriguez v. State, 609 So.2d 493 (Fla.1992), that a deposition that fails to comply with rule 3.190(j) is not admissible at trial as substantive evidence, despite the exception for hearsay allowed by section 90.804(2)(a), Florida Statutes....
...tions. In Rodriguez, it was the defendant attempting to use deposition testimony as exculpatory evidence. The supreme court framed the issue as: "We are presented with the question of whether a deposition is admissible as substantive evidence, under section 90.804(2)(a) of the evidence code, when, at the time of its taking, opposing counsel is not alerted by compliance with Rule of Criminal Procedure 3.190(j) that the deposition may be used at trial....
...Amendment right to trial discussed in Chambers will sometimes override the holding of Rodriguez. Moreover, the court could find only six cases which discuss Chambers in the context of Florida's hearsay exception for statements against interest under section 90.804(2)(c)....
...At his trial, Butler repudiated the confession and the jury apparently believed him and acquitted him. Curtis attempted to admit into evidence at his trial the confession of Butler. The trial court would not allow it because it did not qualify as an admission against penal interest under section 90.804(2)(c), Florida Statutes, since Butler was available to testify at Curtis's trial after being acquitted....
...During the guilt phase of Garcia's trial, Garcia attempted to admit into evidence Pardo's former testimony during Pardo's trial to prove that he had nothing to do with the murders. Garcia argued to the trial court that Pardo's *492 former sworn testimony was admissible under section 90.804(2)(a), Florida Statutes, as a former testimony exception to hearsay....
...The trial court denied admission of the former testimony because Pardo and Garcia were not tried together, so the State did not have the same motive in cross-examining Pardo that it would have if Garcia had been tried at the same time. The supreme court concluded that "section 90.804(2)(a) does not require an identical motive [for cross-examination], but only a `similar motive'." Garcia, 816 So.2d at 564....
...being present, Leighty has argued that her deposition testimony qualifies for the former testimony exception to hearsay because the state had "had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." § 90.804(2)(a), Fla....
...FARMER, J., dissents with opinion. *495 FARMER, J., dissenting. I think Chambers [8] trumps rule 3.190(j). At least it ought to. Indeed, the Florida Supreme Court thinks that Chambers trumps some contrary state law. See Garcia v. State, 816 So.2d 554, 565 (Fla.2002) (saying that § 90.804(2)(a) may not be applied "mechanistically to defeat the ends of justice," quoting Chambers )....
...case was not reached on the calendar. Here the excluded evidence is a witness exonerating defendant of the shooting by evidence originating from a co-defendant admitting that he alone shot the victims. I see no problem in meeting the requirements of section 90.804(2)(a)....
810 So. 2d 1095, 2002 WL 440246
District Court of Appeal of Florida | Filed: Mar 22, 2002 | Docket: 1223877
Cited 2 times | Published
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1)....
...ial likelihood of severe emotional or mental harm ..." because the trial judge made no such finding. However, the statute also states the hearsay statements may be admissible if the child is "unavailable as a witness." And, this permits reference to section 90.804. State v. Townsend, 635 So.2d 949 (Fla.1994). Section 90.804(1) allows admission of hearsay if the declarant is "unavailable" due to specified reasons, two of which are that the witness: (b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an ord...
...5th DCA 2000). [2] (1) Definition of unavailability."Unavailability as a witness" means that the declarant: * * * (b) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so . . . § 90.804(1)(b), Fla....
595 So. 2d 260, 1992 Fla. App. LEXIS 2516, 1992 WL 48905
District Court of Appeal of Florida | Filed: Mar 11, 1992 | Docket: 1299410
Cited 2 times | Published
...and make corrections, in both the form and substance, to his testimony. Although this rule is silent as to the use of the errata sheet, Rule 1.330(a) permits deposition testimony to be used at trial under circumstances present in this case. Further, section 90.804(2)(a), Florida Statutes (1989), provides a hearsay exception for deposition testimony, if the party against whom the deposition testimony is offered had an opportunity *262 to develop the testimony by direct, cross, or redirect examination....
36 So. 3d 903, 2010 Fla. App. LEXIS 8201, 2010 WL 2292047
District Court of Appeal of Florida | Filed: Jun 9, 2010 | Docket: 1639064
Cited 2 times | Published
...h was inconsistent with Jones' hypothesis of an accidental shooting. We find that Jones' motion for judgment of acquittal was appropriately denied. Dying Declarations "Dying declarations" are admissible as exceptions to the rule against hearsay. See § 90.804(2)(b) (2009)....
990 So. 2d 459, 2008 WL 2277520
Supreme Court of Florida | Filed: Jun 5, 2008 | Docket: 1687568
Cited 2 times | Published
...m the evidence."). We affirm the denial of relief on this claim. IV. INEFFECTIVENESS AS TO CODEFENDANT'S CONFESSION In Davis's fourth claim, he alleges that counsel was ineffective for failing to introduce Valessa Robinson's statement at trial under section 90.804, Florida Statutes (1999)....
...not testify if subpoenaed or, if she did, her testimony would be harmful to Davis. The postconviction court also noted that Traina stated that he could not have admitted Valessa's statement because Traina did not have the corroborating evidence that section 90.804(2)(c) required. See § 90.804(2)(c), Fla....
...Traina made a strategic decision not to subpoena Valessa Robinson to testify at [Davis's] trial and that decision was reasonable under the circumstances. Additionally, trial counsel testified that he had no corroborative information to have Valessa Robinson's statement admitted into evidence, which Florida Statutes Section 90.804(2)(c) requires....
418 So. 2d 273
District Court of Appeal of Florida | Filed: Jun 25, 1982 | Docket: 1288894
Cited 2 times | Published
...he circuit court. [2] The codefendant's statement would fall within the "statement against interest" exception but for the provision that a statement "made by a codefendant ... implicating both himself and the accused, is not within this exception." § 90.804(2)(c), Fla....
987 So. 2d 222, 2008 WL 2901861
District Court of Appeal of Florida | Filed: Jul 30, 2008 | Docket: 1394776
Cited 2 times | Published
...and did nothing to "further" the conspiracy. *226 Therefore, the statements were inadmissible under section 90.803(18)(e), and defense counsel was ineffective for conceding admissibility on this basis. Second, the statements are not admissible under section 90.804(2)(c) as statements against interest. Section 90.804(2)(c) permits the admission of statements which are "so far contrary to the declarant's pecuniary or proprietary interest......
...1887, 144 L.Ed.2d 117 (1999) (holding that the portions of a non-testifying accomplice's confession that implicate the defendant do not fall within any hearsay exception); Williamson v. United States, 512 U.S. 594, 600-01, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (holding that the federal counterpart to section 90.804(2)(c) "does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory"); Brooks, 787 So.2d at 775 (same)....
...Here, while Antunes-Salgado's codefendants' statements were partially self-inculpatory, the State also presented those portions of the statements that implicated Antunes-Salgado and that shifted the majority of the guilt to him. These portions of the statements were inadmissible under section 90.804(2)(c) and Lilly and Williamson, and defense counsel was ineffective for failing to object on this basis....
504 So. 2d 407
District Court of Appeal of Florida | Filed: Jan 7, 1987 | Docket: 453585
Cited 2 times | Published
...itness must be given the opportunity to admit, deny or explain making the statement. Since Munson could not be located, his testimony given at the first hearing could only be introduced at the second hearing as an exception to the hearsay rule under section 90.804(2)(a), Florida Statutes (1985)....
...troduced by both sides as if this were an original hearing. *411 Neither party, of course, is required to introduce Munson's testimony, but as in any other hearing or trial, the prior testimony of any witness may be introduced if the requirements of section 90.804(2)(a) are satisfied....
...rocure an absent witness's attendance, and the witness's absence must not be with the connivance or consent of that party. See also Putnal v. State, 56 Fla. 86, 47 So. 864 (1908). Munson's former testimony falls within the hearsay exception found in section 90.804(2)(a), Florida Statutes (1985), and possesses sufficient indicia of reliability to permit its use upon retrial....
866 So. 2d 729, 2004 WL 119335
District Court of Appeal of Florida | Filed: Jan 23, 2004 | Docket: 1680050
Cited 2 times | Published
...o stop me," and that he wasn't going to "let Randy take the fall for this." On the State's motion, the trial court excluded the statements, finding that they lacked any indicia of reliability. Prevatt argues that the statements were admissible under section 90.804(2)(c), Florida Statutes (2002), which provides: HEARSAY EXCEPTIONS.The following are not excluded under s....
...However, like the trial court, we fail to find any evidence in the record to corroborate the statements purportedly made to Prevatt's mother. Because the statements lacked sufficient corroboration by any other evidence, and, thus, lacked the indicia of trustworthiness necessary to be admitted as substantive evidence under 90.804(2)(c), the statements were properly excluded....
982 So. 2d 710, 2008 WL 465588
District Court of Appeal of Florida | Filed: Feb 22, 2008 | Docket: 1664239
Cited 2 times | Published
...uding that the three portions of testimony at issue were admissible. The spontaneous statement made by Royston to his attorney in open court that Mordenti was "not the guy" would meet the statement against interest exception to the hearsay rule. See § 90.804(2)(c)....
922 So. 2d 318, 2006 WL 397858
District Court of Appeal of Florida | Filed: Feb 22, 2006 | Docket: 1683283
Cited 2 times | Published
...ary hearing under Rule 3.131(b) with objectionable hearsay, but that the hearsay was exempt from exclusion. Rejecting the more expansive approach originally adopted by our supreme court in Baker v. State, 336 So.2d 364 (Fla.1976), the Evidence Code, section 90.804(2)(c), Florida Statutes (2005), as subsequently itself adopted by court rule, excepts declarations against penal interest from the rule excluding hearsay only when the declarant is unavailable to testify and when corroborating circumstances show the trustworthiness of the statement....
...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. § 90.804(2)(c), Fla. Stat. (2005). This exception applies only when the declarant is unavailable as a witness. See § 90.804(2), Fla....
746 So. 2d 518, 1999 WL 1111784
District Court of Appeal of Florida | Filed: Dec 8, 1999 | Docket: 1360338
Cited 2 times | Published
...Before *520 the trial court could admit the testimony of the investigator's conversation with Larney as a hearsay exception, not only must Larney be unavailable to testify at trial, but some corroborating evidence must show the trustworthiness of his statement. See § 90.804(2)(c), Fla....
180 So. 3d 89
Supreme Court of Florida | Filed: Dec 4, 2014 | Docket: 2611590
Cited 2 times | Published
...- 41 -
see Patel’s injury. Blake thus asserts that if Green were unavailable to testify at
Blake’s trial, Parker’s recitation of Green’s statement would be admissible as a
statement against interest, § 90.804(2)(c), Fla. Stat. (2005), and that if Green were
available, Parker’s testimony could be admitted to impeach Green.
Blake’s argument is conclusory and without merit. Under section
90.804(2)(c), in order to introduce a “statement tending to expose the declarant to
criminal liability and offered to exculpate the accused,” the offering party must
establish “corroborating circumstances” to show “the trustworth...
...Blake has not
proven that a person who remained in the car could not see Patel’s injury.
Furthermore, if the defense established Green’s unavailability for purposes
of introducing Green’s out-of-court statements, the State could respond by
introducing Green’s 2002 grand jury testimony under section 90.804(2)(a), Florida
Statutes (2005), the former testimony hearsay exception....
610 So. 2d 442, 18 Fla. L. Weekly Supp. 14, 1992 Fla. LEXIS 2122, 1992 WL 381748
Supreme Court of Florida | Filed: Dec 24, 1992 | Docket: 1734913
Cited 2 times | Published
...e introduction of a codefendant's custodial statement implicating the defendant is inapplicable to this case. Even if Swickle's state of mind was not pertinent, it appears that the testimony was admissible as a statement against penal interest under section 90.804(2)(c), Florida Statutes (1989)....
184 So. 3d 492, 40 Fla. L. Weekly Supp. 728, 2015 Fla. LEXIS 2826, 2015 WL 9172921
Supreme Court of Florida | Filed: Dec 17, 2015 | Docket: 3022130
Cited 2 times | Published
...corroborated facts found in Carpenter, . . . the limited information provided by
Kasler, in confessing to the murder of Teri Lynn Matthews, is insufficiently
specific and lacks the ‘particularized guarantees of trustworthiness,’ that seem to
be required under § 90.804(2)(c).” The court therefore found that the “statements
attributed to Kasler are insufficiently corroborated to qualify as a hearsay
exception under § 90.804(2)(c).” Nevertheless, the court also continued its Jones
analysis as though the statements were admissible and found “that even if Kasler’s
statements were admitted on retrial, such evidence is not of a nature that it would
probably produce an acquittal ....
208 So. 3d 785, 2016 Fla. App. LEXIS 18580
District Court of Appeal of Florida | Filed: Dec 16, 2016 | Docket: 60258634
Cited 2 times | Published
Legislature has defined “unavailability as a witness,” § 90.804(1), Fla. Stat. (2015); see also § 90.803(24)(a)2
816 So. 2d 701, 2002 WL 649062
District Court of Appeal of Florida | Filed: Apr 22, 2002 | Docket: 1753568
Cited 2 times | Published
...98-2, § 1, Laws of Fla. Dr. Grabau contends that this statutory provision, as amended, is unconstitutional because it allows the introduction into evidence of a deposition without a required showing of "unavailability," contrary to the requirements of section 90.804, Florida Statutes; and Florida Rule of Civil Procedure 1.330(a)(3); and, thus, violates article V, section (2)(a) (which empowers the Florida Supreme Court to adopt rules for the practice and procedure in all courts and specifies that...
...In effect, chapter 98-2, section 1, replaced the narrow hearsay exception for "former testimony" in section 90.803, Florida Statutes, which applies irrespective of a declarant's availability to testify, with the significantly broader "former testimony" exception in section 90.804(2)(a), Florida Statutes, which applies only when the declarant is *708 unavailable. Id. at 340 & n. 2; § 90.804(1), Fla....
...nstitutional right to confront adverse witnesses; (2) this expanded former-testimony hearsay exception would result in "trial by deposition," thereby precluding the fact-finder from evaluating witness credibility; (3) the amendment simply strips the section 90.804(2)(a) former-testimony exception of its "unavailability" requirement, thereby making the section 90.804 exception obsolete; (4) the amendment is inconsistent with several rules of procedure, thereby causing confusion as to which rule should control; [footnote omitted] and (5) the expanded hearsay exception will shift expense burdens rela...
...We conclude that the amended statute is unconstitutional as an infringement on the authority conferred on the Florida Supreme Court by article V, section 2(a), of the Florida Constitution; and as a violation of article II, section 3, of the Florida Constitution, because it obviates and conflicts with section 90.804, Florida Statutes; and with Florida Rule of Civil Procedure 1.330; and denies due process....
...We certify the following to the Florida Supreme Court as a question of great public importance: IS SECTION 90.803(22), FLORIDA STATUTES, AS AMENDED IN CHAPTER 98-2, SECTION 1, UNCONSTITUTIONAL AS A VIOLATION OF ARTICLE V, § (2)(a), AND ARTICLE II, § 3, FLORIDA CONSTITUTION? *710 WHETHER SECTION 90.804(2)(a) APPLIES As an alternative ground, Department contends that K.R.'s deposition is admissible into evidence based on section 90.804(2)(a), Florida Statutes (applicable where "the declarant is unavailable as a witness"); and rule 1.330(a)(3)....
...Given the success of its request to admit K.R.'s deposition into evidence based on section 90.803(22), Florida Statutes, Department did not seek to introduce the deposition based on the alternative ground of rule 1.330(a)(3). Because the issues of "unavailability" under section 90.804(2)(a) and rule 1.330(a)(3), and other factors governing the admissibility of the partial deposition, have not been fully addressed below, we decline to review the question for the first time on appeal. We note, however, that if K.R.'s deposition is found admissible under section 90.804(2)(a) and rule 1.330(a)(3), then the record evidence is sufficient to prove the violations....
161 So. 3d 1257, 40 Fla. L. Weekly Supp. 208, 2015 Fla. LEXIS 800, 2015 WL 1724590
Supreme Court of Florida | Filed: Apr 16, 2015 | Docket: 2649968
Cited 2 times | Published
...In DeWolfe, the defendant was tried
for the theft of two air conditioning units. Id. at 1144. At trial, DeWolfe sought to
present two witnesses who would testify that they heard another person confess to
the crime. Id. at 1143. The defendant relied on section 90.804(2)(c), Florida
Statutes (2010), the declaration against penal interest hearsay exception, to assess
whether the testimony could be admitted at trial....
...strated that it was focused on Tyler’s
credibility and her testimony about the hearsay statements. However, the proper
2. Carpenter is distinguishable from Bearden because the declarant in
Carpenter was unavailable to testify, and thus, section 90.804(2)(c) applied.
However, Carpenter’s analysis regarding the jury’s role in assessing the credibility
of an in-court witness is applicable here.
- 11 -
focus for the Chambers analysis is the reliability of the hearsay statements
themselves....
...Under that
section, hearsay is inadmissible as evidence at trial or a hearing except as provided
- 12 -
by statute. 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 90.804(2)(c)
provides that hearsay that constitutes a statement against penal interest is
admissible if the declarant is unavailable to testify, and in the present case, Ray
Allen Brown was available to and did testify at trial. Thus, Tyler’s testimony
would not have been admissible under section 90.804(2)(c).
However, in Chambers, the United States Supreme Court concluded that the
exclusion of hearsay regarding a third party’s confessions to a crime violated the
defendant’s constitutional right to due process—the state’s rules of evidence
notwithstanding....
...ns against
penal interest, because the exception could not be employed under the
facts of his case.
Indeed, the Florida courts have consistently applied the
constitutional analysis in Chambers, despite the exception in section
90.804(2)(c), Florida Statutes, for declarations against penal interest.
See Grim v....
438 So. 2d 169, 1983 Fla. App. LEXIS 21802
District Court of Appeal of Florida | Filed: Sep 22, 1983 | Docket: 64599764
Cited 1 times | Published
corroborating circumstances as required by Section 90.804(2)(c), Florida Statutes (1981). Nor would the
254 So. 3d 1188
District Court of Appeal of Florida | Filed: Oct 2, 2018 | Docket: 7968010
Cited 1 times | Published
non-admissible hearsay, which don’t qualify under § 90.804(2)(c)’s exception for trustworthy statements against
260 So. 3d 419
District Court of Appeal of Florida | Filed: Nov 28, 2018 | Docket: 8338741
Cited 1 times | Published
as statements against penal interest under section 90.804(2)(c), Florida Statutes (2013). However, this
958 So. 2d 431, 2007 WL 1264004
District Court of Appeal of Florida | Filed: May 2, 2007 | Docket: 1734977
Cited 1 times | Published
...At the first trial, Essex's fifteen-year-old niece, B.D., testified as an eyewitness. At the second trial, B.D.'s testimony from the first trial was read into evidence. On appeal, Essex attacks the admissibility of the former testimony, arguing that under section 90.804(1), Florida Statutes (2006), and Crawford v....
...the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." 541 U.S. at 68, 124 S.Ct. 1354. Under the Florida Evidence Code, former testimony is admissible "provided that the declarant is unavailable as a witness." § 90.804(2)(a), Fla. Stat. (2006). Section 90.804(1) defines the concept of "[u]navailability of a witness." A finding that a witness is unavailable within the meaning of section 90.804(1) satisfies the unavailability requirement of Crawford. See Corona v. State, 929 So.2d 588, 595 (Fla. 5th DCA 2006) (applying section 90.804(1)(e) to decide whether a witness was "unavailable" for the purposes of the Confrontation Clause)....
..."The trial court's determination that a witness is `unavailable' for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court." Corona, 929 So.2d at 594 (citations omitted). Under section 90.804(1), one of the ways that a witness is unavailable is if she "is absent from the hearing, and the proponent of [her] statement has been unable to procure [her] attendance or testimony by process or other reasonable means." As the party...
868 So. 2d 1222, 2004 WL 575740
District Court of Appeal of Florida | Filed: Mar 17, 2004 | Docket: 1510622
Cited 1 times | Published
...The defendant argues that the trial court erred in admitting Anthony's statements to detective Patton under the dying declaration hearsay exception because the evidence did not show that the statements were made with knowledge of his impending death. We disagree. Under Section 90.804(2)(b), Florida Statutes (2000), a statement made by a declarant while reasonably believing that his or her death is imminent, is admissible as a hearsay exception....
556 So. 2d 817, 1990 WL 12006
District Court of Appeal of Florida | Filed: Feb 15, 1990 | Docket: 543103
Cited 1 times | Published
...e of the abuse or offense. Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1). Section 90.804(1), referred to in the foregoing subsection, defines "unavailability as a witness" to mean, inter alia, that a declarant is "unable to be present or to testify at the hearing......
...stand the duty or obligation to tell the truth because of her chronological age. Based on that stipulation, the trial court found the child incompetent to testify. This infirmity satisfies the test of unavailability under the statutory definition of section 90.804(1)....
Supreme Court of Florida | Filed: Sep 4, 2025 | Docket: 71267629
Published
unavailable declarant’s statement against interest. See § 90.804, Fla. Stat. We reject this argument. First, Suggs
Supreme Court of Florida | Filed: Sep 17, 2015 | Docket: 2816845
Published
...statement indicates that Green must have been the shooter because he was able to
see Patel’s injury. Blake thus asserts that if Green were unavailable to testify at
Blake’s trial, Parker’s recitation of Green’s statement would be admissible as a
statement against interest, § 90.804(2)(c), Fla. Stat. (2005), and that if Green were
available, Parker’s testimony could be admitted to impeach Green.
Blake’s argument is conclusory and without merit. Under section
90.804(2)(c), in order to introduce a “statement tending to expose the declarant to
criminal liability and offered to exculpate the accused,” the offering party must
establish “corroborating circumstances” to show “the trustworth...
...- 42 -
Furthermore, if the defense established Green’s unavailability for purposes
of introducing Green’s out-of-court statements, the State could respond by
introducing Green’s 2002 grand jury testimony under section 90.804(2)(a), Florida
Statutes (2005), the former testimony hearsay exception....
Supreme Court of Florida | Filed: Oct 3, 2019 | Docket: 68539958
Published
admissible as a declaration against interest under section 90.804(2)(c), Florida Statutes (2017). But the circuit
202 So. 3d 785
Supreme Court of Florida | Filed: Oct 27, 2016 | Docket: 4483118
Published
because she was not unavailable as a witness. See § 90.804(2), Fla. Stat. Rather, Samantha testified at Aguirre’s
46 So. 3d 631, 2010 Fla. App. LEXIS 15839, 2010 WL 4103191
District Court of Appeal of Florida | Filed: Oct 20, 2010 | Docket: 2402035
Published
...r unavailable to testify. What the State is driving at is that if Cannon is unavailable to testify, then it is possible that Cannon's statements might qualify for admission under the Evidence Code's hearsay exception for statements against interest. § 90.804(2)(c), Fla....
District Court of Appeal of Florida | Filed: Nov 28, 2018 | Docket: 8342192
Published
as statements against penal interest under section 90.804(2)(c), Florida Statutes (2013). However, this
District Court of Appeal of Florida | Filed: Nov 25, 2020 | Docket: 18690046
Published
defined in Florida’s Code and Rules of Evidence. See § 90.804(1)(b), Fla. Stat. (2018) (providing in pertinent
189 So. 3d 853, 2015 Fla. App. LEXIS 17901, 40 Fla. L. Weekly Fed. D 2638
District Court of Appeal of Florida | Filed: Nov 25, 2015 | Docket: 3016004
Published
...e in light of her
unanticipated death prior to trial. Appellant never moved to perpetuate
this testimony pursuant to Florida Rule of Criminal Procedure 3.190(i)
(“rule 3.190(i)”), but argues the deposition could have been properly
admitted under section 90.804, Florida Statutes, because the witness
was unavailable....
...compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered . . . had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination.
§ 90.804(2)(a), Fla....
...e Florida evidence
code and rule 3.190 in answering the question of whether it was error to
refuse to admit the testimony of an unavailable witness as substantive
2
evidence pursuant to the hearsay exception in section 90.804(2)(a). 609
So. 2d at 497-99. The court stated:
We are presented with the question of whether a
deposition is admissible as substantive evidence, under
section 90.804(2)(a) of the evidence code, when, at the time
of its taking, opposing counsel is not alerted by compliance
with Rule of Criminal Procedure 3.190(j)[1] that the
deposition may be used at trial. We hold that it is not.
Accord [James]; Campos v. State, 489 So. 2d 1238 (Fla. 3d
DCA 1986) (discovery deposition that qualifies as a hearsay
exception under section 90.804(2)(a) is not admissible as
substantive evidence unless it qualifies for such admission
under the criminal rules of procedure); Jackson v....
...2009).
3
The holding in [James] that discovery depositions are not
admissible as substantive evidence absent compliance with
Rule 3.190(j) was in no way modified by the adoption of
section 90.804(2)(a). In fact, the necessity of meeting the
procedural requirements for perpetuating testimony before a
deposition is admissible as substantive evidence is recognized
in section 90.804(2)(a) by the express requirement that the
deposition must be “taken in compliance with law.” Accord
Terrell v....
Supreme Court of Florida | Filed: Nov 21, 2019 | Docket: 68539960
Published
about not knowing the girl on the flyer. See § 90.804(1)(c), Fla. Stat. (2019) (excepting admissions
74 So. 3d 550, 2011 Fla. App. LEXIS 17854, 2011 WL 5416336
District Court of Appeal of Florida | Filed: Nov 10, 2011 | Docket: 2558037
Published
...lice when they said that Appellant was involved. The trial court concluded that the omission was not prejudicial because the cellmate could not have testified at trial. He reasoned that the testimony was not sufficiently corroborated, as required by section 90.804(2)(c), Florida Statutes....
432 So. 2d 1346, 1983 Fla. App. LEXIS 20057
District Court of Appeal of Florida | Filed: May 4, 1983 | Docket: 64597565
Published
evidence harmless error. Even though on retrial, Section 90.804(2)(a) may permit the admission of this deposition
247 So. 3d 666
District Court of Appeal of Florida | Filed: May 23, 2018 | Docket: 6862842
Published
one of several hearsay exceptions. See, e.g., § 90.804(2)(c), Fla. Stat. (2010) ("A statement which
183 So. 3d 1081, 2015 Fla. App. LEXIS 7620, 2015 WL 2393278
District Court of Appeal of Florida | Filed: May 20, 2015 | Docket: 2679321
Published
...He conducted most of his business with
Brown, but appellant accompanied Brown during some of the
transactions.
At trial, appellant sought to introduce a transcript of Ms. James’s
testimony at the forfeiture hearing, as former testimony of an unavailable
witness under section 90.804(2)(a), Florida Statutes....
...The trial court, however, sustained the state’s
objection to admission of Ms. James’ former testimony and excluded it.
On appeal, appellant argues that the trial court abused its discretion
in excluding Ms. James’s former testimony at his criminal trial. He asserts
that her testimony was admissible under section 90.804(2)(a), because the
sheriff’s office, through the assistant state attorney’s cross-examination,
had an opportunity and similar motive to show that Ms....
...We agree.
The standard of review for a trial court’s admission of evidence is abuse
of discretion. Padgett v. State, 73 So. 3d 902, 904 (Fla. 4th DCA 2011).
The trial court’s discretion, however, is limited by the rules of evidence.
Id.
Section 90.804(2), Florida Statutes (2010) provides an exception to the
hearsay rule, when the declarant is unavailable, for:
(a) Former testimony.--Testimony given as a witness at
another hearing of the same or a different proceedin...
...mitting the murders alone; he
denied that the defendant was involved. Because the co-defendant
invoked his Fifth Amendment right during Garcia’s trial and refused to
testify, Garcia attempted to introduce the co-defendant’s trial testimony
under section 90.804(2)(a), as former testimony of an unavailable witness.
The trial court denied the request....
...invoked his Fifth Amendment right against self-incrimination and was
unavailable to testify. In concluding that the witness’s prior testimony at
the pre-trial bond hearing was admissible at the defendant’s criminal trial,
we explained:
We do not read Section 90.804(2)(a) to require that, in
order for prior testimony to be admitted as an exception to the
hearsay rule, the opponent of the evidence must have the
same motivation to examine the witness in both the prior
proceeding and the one in which the prior testimony was being
introduced....
Supreme Court of Florida | Filed: May 14, 2020 | Docket: 17163244
Published
statement made “under belief of impending death,” § 90.804(2)(b), Fla. Stat. (2017), also known as a dying
241 So. 3d 246
District Court of Appeal of Florida | Filed: Mar 23, 2018 | Docket: 6343795
Published
a declaration against penal interest under section 90.804(2)(c), Florida Statutes (2013), because Wright
Supreme Court of Florida | Filed: Mar 10, 2022 | Docket: 63148359
Published
exception for statements against interest found in section 90.804(2)(c), Florida Statutes (2020). This statute
246 So. 3d 195
Supreme Court of Florida | Filed: Mar 1, 2018 | Docket: 6321421
Published
707 So.2d 688 , 691 (Fla. 1998) ; § 90.804(2), Fla. Stat. Accordingly, the declaration from
651 So. 2d 208, 1995 Fla. App. LEXIS 1959, 1995 WL 79779
District Court of Appeal of Florida | Filed: Mar 1, 1995 | Docket: 1518203
Published
...mpetency. In the absence of sufficient evidence of competency, the hearing officer erred in admitting Gregory's deposition. Without either (1) Gregory's testimony or (2) corroborative evidence and a determination that Gregory was "unavailable" under section 90.804(1), the hearsay testimony of HRS' other witnesses would be inadmissible under section 90.803(23)....
247 So. 3d 11
District Court of Appeal of Florida | Filed: Jun 6, 2018 | Docket: 7062005
Published
The trial court admitted the testimony under section 90.804(2)(a) and (c), Florida Statutes (2013), under
250 So. 3d 113
District Court of Appeal of Florida | Filed: Jun 27, 2018 | Docket: 7292502
Published
witness, and did so intending that result. § 90.804(2)(f), Fla. Stat. (2016); see also Mortimer, 100
District Court of Appeal of Florida | Filed: Jul 9, 2014 | Docket: 1769
Published
...We stay issuance of the mandate to allow the state to seek
review of the certified questions set forth below.
We certify the following questions as being of great public importance:
(1) In light of Giles v. California, 554 U.S. 353 (2008) and
Crawford v. Washington, 541 U.S. 36 (2004), does section
90.804(2)(f), Florida Statutes (2012), violate the Sixth
Amendment Confrontation Clause?
(2) Does article I, section 16 of the Florida Constitution afford
an accused greater protection than the Sixth Amendment of th...
...During
trial, the state offered Joseph’s earlier testimony at a codefendant’s bond
hearing under the common law hearsay exception of forfeiture by
wrongdoing. Id. at 102-03. After the trial, in 2012, the legislature codified
this common law hearsay exception by enacting section 90.804(2)(f),
Florida Statutes (2012). See Ch. 2012-152, Laws of Fla.
Section 90.804(2)(f) provides:
1The Supreme Court did not mention article I, section 16 when it declined to
adopt section 90.804(2)(f)....
...party that wrongfully caused, or acquiesced in
wrongfully causing, the declarant’s unavailability
as a witness, and did so intending that result.
Joseph’s earlier testimony falls squarely within the 90.804(2)(f)
exception to the rule against hearsay—Joseph was unavailable and
Mortimer “wrongfully caused, or acquiesced in wrongfully causing,”
Joseph’s unavailability at trial....
...hearsay evidence is
inadmissible, “[e]xcept as provided by statute.” Mortimer, 100 So. 3d at
102. Nonetheless, we affirmed the conviction because we found that at
any new trial, Joseph’s testimony at the bond hearing would be admissible
under section 90.804(2)(f).
In a classic example of judicial overconfidence, we wrote that “[i]t is
almost certain that our Supreme Court will adopt section 90.804(2)(f).” Id.
at 104....
...The absence of a forfeiture rule covering this
sort of conduct would create an intolerable incentive for
defendants to bribe, intimidate, or even kill witnesses against
them.” Id. at 365.
Mortimer, 100 So. 3d at 104.
In 2013, the Florida Supreme Court declined to adopt section
90.804(2)(f) “to the extent it is procedural in light of constitutional
concerns,” citing Crawford v....
...Washington, 541 U.S. 36 (2004). In re
Amends. to the Fla. Evidence Code, No. SC13-98, 2013 WL 6500888, at *1
(Fla. Dec. 12, 2013).
-3-
The constitutional concern raised by the Florida Supreme Court is
whether section 90.804(2)(f) contravenes the Sixth Amendment
Confrontation Clause....
...wrongdoing hearsay exception as
being within the holding in Giles and Crawford. Giles, 554 U.S. at 367
n.2. No federal court that has considered rule 804(b)(6) has found a Sixth
2The language of Federal Rule of Evidence 804(b)(6) is identical to section
90.804(2)(f):
Statement Offered Against a Party That Wrongfully Caused the
Declarant’s Unavailability....
...declarant’s unavailability as a witness, and did so intending that
result.
Fed. R. Evid. 804(b)(6).
-4-
Amendment violation.3 No state court has found a Sixth Amendment
violation when evaluating an evidentiary rule similar to 90.804(2)(f).4
3See United States v....
...Mechling, 633 S.E.2d 311, 325-26 (W. Va.
2006); People v. Geraci, 649 N.E.2d 817, 820-21 (N.Y. 1995); State v. McLaughlin,
-5-
We have held that for the purpose of article V, section 2(a) of the Florida
Constitution that section 90.804(2)(f) is a procedural statute....
...requirement of section 90.802.
Mortimer is entitled to habeas relief because a key assumption of our
earlier opinion was in error. We assumed that at any retrial Joseph’s
hearsay testimony would be admissible. Because the Supreme Court did
not adopt section 90.804(2)(f), that is not the case....
251 So. 3d 262
District Court of Appeal of Florida | Filed: Jul 5, 2018 | Docket: 7361265
Published
excited utterance. B. Dying Declaration—Section 90.804(2)(b) of the Florida Statutes Although
District Court of Appeal of Florida | Filed: Jul 24, 2019 | Docket: 15960210
Published
against the declarant’s penal interest under section 90.804(2)(c), Florida Statutes (2016). The statements
District Court of Appeal of Florida | Filed: Jul 22, 2020 | Docket: 17370646
Published
during trial, the defendant’s counsel cited section 90.804(4), but never cited section 90.803(18).
416 So. 2d 1223, 1982 Fla. App. LEXIS 20597
District Court of Appeal of Florida | Filed: Jul 20, 1982 | Docket: 64591275
Published
his statement” is definitively unavailable, see § 90.804(l)(a), Fla.Stat. (1981), and the witness’s former
144 So. 3d 536, 39 Fla. L. Weekly Supp. 501, 2014 Fla. LEXIS 2156, 2014 WL 3573106
Supreme Court of Florida | Filed: Jul 10, 2014 | Docket: 400978
Published
...We decline to follow the
Committee’s recommendation to adopt the new provision of the Code because we
question the need for the privilege to the extent that it is procedural.
In chapter 2012-152, section 1, Laws of Florida, the Legislature amended
section 90.804 to include the hearsay exception of “Statement offered against a
party that wrongfully caused the declarant’s unavailability.” See § 90.804(2)(f),
Fla....
...-4-
Florida, in light of my continued concerns as to the constitutional implications of
this provision as it is applied.2
Specifically, chapter 2012-152, section 1, which added a new hearsay
exception to section 90.804(2), Florida Statutes, entitled “Statement offered against
a party that wrongfully caused the declarant’s unavailability,” raises potential Sixth
Amendment issues....
... intent to prevent the witness from testifying. Cf. Davis v.
Washington, 547 U.S. 813, 833 (2006).
Id. at 379 (Souter, J., concurring in part) (emphasis added).
With the adoption of the “forfeiture by wrongdoing” doctrine as narrowly set
forth in section 90.804(2), the critical question, as demonstrated by Giles, will be
the establishment of the procedure for how the unavailable declarant’s out-of-court
statement could be admitted into evidence in a manner consistent with the
Confrontation Clause, which considerably restricts the scope of this hearsay
exception....
...Tilghman Fox Bianchi & Gain, P.A., Miami, Florida; and Lee Delton Gunn, IV of
the Gunn Law Group, Tampa Florida,
Responding with comments
- 12 -
APPENDIX
Chapter 2012-152, § 1:
90.804 Hearsay exceptions; declarant unavailable
(1) [No Change]
(2) HEARSAY EXCEPTIONS....
235 So. 3d 1028
District Court of Appeal of Florida | Filed: Jan 5, 2018 | Docket: 60286096
Published
State, 4 So.3d 1274, 1279 (Fla. 2d DCA 2009). Section 90.804(2)(c), Florida Statutes (2012), creates a hearsay
239 So. 3d 129
District Court of Appeal of Florida | Filed: Jan 29, 2018 | Docket: 64674614
Published
statement against penal interest pursuant to section 90.804(2)(c), Florida Statutes, and on due process
501 So. 2d 1352, 12 Fla. L. Weekly 396
District Court of Appeal of Florida | Filed: Jan 26, 1987 | Docket: 64624838
Published
inadmissible because none of the exceptions of section 90.804, pertaining to the declarations of unavailable
District Court of Appeal of Florida | Filed: Jan 25, 2023 | Docket: 66757234
Published
after trial and statute of limitations had run); § 90.804(1)(b), Fla. Stat. (2021) (“‘Unavailability as
270 So. 3d 371
District Court of Appeal of Florida | Filed: Feb 20, 2019 | Docket: 14560240
Published
favorable to the other party. For example, section 90.804, Florida Statutes, provides that hearsay evidence
260 So. 3d 325
District Court of Appeal of Florida | Filed: Dec 5, 2018 | Docket: 8346799
Published
an exception exists under section 90.803 or section 90.804, Florida Statutes (2017). Section 90.803(2)
51 So. 3d 589, 2010 Fla. App. LEXIS 19850, 2010 WL 5343688
District Court of Appeal of Florida | Filed: Dec 29, 2010 | Docket: 2406754
Published
...Carpenter v. State, 785 So.2d 1182, 1201 (Fla.2001). The trial court found that the victim's alleged statement was inadmissible as an exception to the hearsay rule because it did not tend to expose the declarant-victim to criminal liability. We agree. See § 90.804(2)(c), Fla....
260 So. 3d 1172
District Court of Appeal of Florida | Filed: Dec 27, 2018 | Docket: 64699960
Published
Pugh "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State
260 So. 3d 1172
District Court of Appeal of Florida | Filed: Dec 27, 2018 | Docket: 64699959
Published
Pugh "unavailable" due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State
District Court of Appeal of Florida | Filed: Dec 27, 2018 | Docket: 8455095
Published
Pugh “unavailable” due to lack of memory under section 90.804(1)(c), Florida Statutes, because the State
204 So. 3d 982, 2016 Fla. App. LEXIS 17881
District Court of Appeal of Florida | Filed: Dec 2, 2016 | Docket: 4550615
Published
summarily denied this claim, ruling that, under section 90.804, the testimony was inadmissible because the
480 So. 2d 169, 11 Fla. L. Weekly 28
District Court of Appeal of Florida | Filed: Dec 17, 1985 | Docket: 1667366
Published
...o the trial, it is apparent that the "attendance of the witness," as the term is used is Rule 3.190(j)(6), means more than mere presence and includes the reasonable likelihood that he is or soon will be able to give reliable, coherent testimony. See § 90.804(1)(d), Fla....
175 So. 3d 836, 2015 Fla. App. LEXIS 12757, 2015 WL 5026175
District Court of Appeal of Florida | Filed: Aug 26, 2015 | Docket: 2687697
Published
...in limine to allow admission of a
statement given by co-defendant Marciano to prosecutors after his arrest.
Appellant sought to introduce the statement as an exception to the
hearsay rule for statements against a declarant’s penal interest, under
section 90.804(2)(c), Florida Statutes....
...discretion, limited by the rules of evidence.” Alvarez v. State, 147 So. 3d
537, 542 (Fla. 4th DCA 2014). Under Florida’s rules of evidence, hearsay
statements are generally inadmissible unless they fall within an exception
to the hearsay rule. Section 90.804(2)(c), Florida Statutes (2009), provides
an exception to the hearsay rule for a statement against interest....
...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.
Essentially, the test for admissibility of statements against interest
under section 90.804(2)(c) is whether (1) the declarant is unavailable, (2)
the statements are relevant, (3) the statements tend to inculpate the
declarant and exculpate the defendant, and (4) the statements are
corroborated....
...down there to check things out,” and “Brian never admitted he shot John
Torres.”
Whether the hearsay exception for a statement against penal interest
applies depends on the content of the incriminating declaration. Smith v.
State, 746 So. 2d 1162, 1168 (Fla. 1st DCA 1999). “Section 90.804(2)(c)
uses the term ‘statement’ in a narrow sense to refer to a specific
declaration or remark incriminating the speaker and not more broadly to
refer to the entire narrative portion of the speaker’s confession.” Id....
...“A non-testifying accomplice’s statement against
penal interest is admissible as a hearsay exception if corroborating
circumstances show the statement has ‘particularized guarantees of
trustworthiness.’” Id. (quoting Lilly v. Virginia, 527 U.S. 116, 136-37
(1999), and citing § 90.804(2)(c), Fla....
...After reviewing the proffered statement, the relevant law, and the
parties’ arguments, the trial court denied the motion to admit Marciano’s
statement. We find no abuse of discretion in the trial court’s exclusion of
Marciano’s statement under section 90.804(2)(c), Florida Statutes, and
affirm appellant’s judgments of conviction and sentences.
Affirmed.
MAY and DAMOORGIAN, JJ., concur.
* * *
7
Not final...
162 So. 3d 67
District Court of Appeal of Florida | Filed: Aug 20, 2014 | Docket: 1120129
Published
...sistant
Public Defender, West Palm Beach, for petitioner.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mark Hamel,
Assistant Attorney General, West Palm Beach, for respondent.
PER CURIAM.
In light of the Supreme Court’s adoption of section 90.804(2)(f), Florida
Statutes (2012) “to the extent that the provision is procedural,” In re
Amendments to the Florida Evidence Code, 39 Fla....
68 So. 3d 936, 2011 Fla. App. LEXIS 12901, 36 Fla. L. Weekly Fed. D 1822
District Court of Appeal of Florida | Filed: Aug 17, 2011 | Docket: 2358350
Published
...See, e.g., Robinson v. State, 707 So.2d 688 (Fla.1998); Lightbourne v. State, 644 So.2d 54 (Fla.1994). The statements Brantley made to affiants Nottage and Charles could, under the proper predicate, qualify as statements against penal interest, under section 90.804(2)(c), Florida Statutes, which provides: (2) The following are not excluded under s....
...t to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless *940 corroborating circumstances show the trustworthiness of the statement. The test for admissibility under 90.804(2)(c) is 1) whether the declarant is unavailable, and if so, 2) whether the statements are relevant, 3) whether the statements tend to inculpate the declarant and exculpate the defendant, and 4) whether the statements are corroborated....
...That memorandum argued that the affidavits are hearsay and would be inadmissible if offered at trial. [3] Implicit in this prong is the requirement that the newly-discovered evidence be admissible at a new trial. See Jones I, 591 So.2d at 916; Jones v. State, 709 So.2d 512, 521 (Fla. 1998) ( "Jones II" ). [4] Section 90.804(1) defines "unavailability as a witness" to include situations in which the declarant (in this case, Brantley) "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to...
District Court of Appeal of Florida | Filed: Apr 25, 2018 | Docket: 6375012
Published
witness, and did so intending that result. § 90.804(2)(f), Fla. Stat. (2016); see also Mortimer, 100
Supreme Court of Florida | Filed: Apr 17, 2014 | Docket: 57174
Published
...The trial court’s
discretion is not unfettered, but is “limited by the rules of evidence.” Hudson, 992
So. 2d at 107.
Allen asserts that Quintin’s alleged confession to Martin is admissible under
the hearsay exception of a statement against penal interest. Section 90.804(2)(c),
states:
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 decla...
...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.
§ 90.804(2)(c), Fla. Stat. (2005). This exception only applies when the declarant is
unavailable. See § 90.804, Fla....
...Furthermore,
- 15 -
the statute specifically excludes statements tending to expose the declarant to
criminal liability and offered to exculpate the accused “unless corroborating
circumstances show the trustworthiness of the statement.” Section 90.804(2)(c),
Fla....
...at McDonald
confessed); see generally McWatters, 36 So. 3d at 639 n.8 (“Because the cases are
not factually or procedurally similar and Chambers was expressly limited to its
facts, McWatters has failed to establish a due process violation.”); § 90.804(2)(c),
Fla....
