Fla. Stat. 90.804
Hearsay exceptions; declarant unavailable

(1)

DEFINITION OF UNAVAILABILITY.—“Unavailability as a witness” means that the declarant:Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; orIs absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

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

(a)

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

(b)

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

(c)

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

(d)

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

(e)

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

(2)

HEARSAY EXCEPTIONS.—The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness:Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.Statement under belief of impending death.—In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.Statement against interest.—A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.Statement of personal or family history.—A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.Statement by deceased or ill declarant similar to one previously admitted.—In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.Statement offered against a party that wrongfully caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result.

(a)

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

(b)

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

(c)

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

(d)

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

(e)

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

(f)

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

Source: Section 90.804 — Hearsay exceptions; declarant unavailable, https://www.­flsenate.­gov/Laws/Statutes/2024/0090.­804 (accessed Aug. 7, 2025).

90.91
Photographs of property wrongfully taken 90.101
Short title 90.102
Construction 90.103
Scope 90.104
Rulings on evidence 90.105
Preliminary questions 90.106
Summing up and comment by judge 90.107
Limited admissibility 90.108
Introduction of related writings or recorded statements 90.201
Matters which must be judicially noticed 90.202
Matters which may be judicially noticed 90.203
Compulsory judicial notice upon request 90.204
Determination of propriety of judicial notice and nature of matter noticed 90.205
Denial of a request for judicial notice 90.206
Instructing jury on judicial notice 90.207
Judicial notice by trial court in subsequent proceedings 90.301
Presumption defined 90.302
Classification of rebuttable presumptions 90.303
Presumption affecting the burden of producing evidence defined 90.304
Presumption affecting the burden of proof defined 90.401
Definition of relevant evidence 90.402
Admissibility of relevant evidence 90.403
Exclusion on grounds of prejudice or confusion 90.404
Character evidence 90.405
Methods of proving character 90.406
Routine practice 90.407
Subsequent remedial measures 90.408
Compromise and offers to compromise 90.409
Payment of medical and similar expenses 90.410
Offer to plead guilty 90.501
Privileges recognized only as provided 90.502
Lawyer-client privilege 90.503
Psychotherapist-patient privilege 90.504
Husband-wife privilege 90.505
Privilege with respect to communications to clergy 90.506
Privilege with respect to trade secrets 90.507
Waiver of privilege by voluntary disclosure 90.508
Privileged matter disclosed under compulsion or without opportunity to claim privilege 90.509
Application of privileged communication 90.510
Privileged communication necessary to adverse party 90.601
General rule of competency 90.603
Disqualification of witness 90.604
Lack of personal knowledge 90.605
Oath or affirmation of witness 90.606
Interpreters and translators 90.607
Competency of certain persons as witnesses 90.608
Who may impeach 90.609
Character of witness as impeachment 90.610
Conviction of certain crimes as impeachment 90.611
Religious beliefs or opinions 90.612
Mode and order of interrogation and presentation 90.613
Refreshing the memory of a witness 90.614
Prior statements of witnesses 90.615
Calling witnesses by the court 90.616
Exclusion of witnesses 90.701
Opinion testimony of lay witnesses 90.702
Testimony by experts 90.703
Opinion on ultimate issue 90.704
Basis of opinion testimony by experts 90.705
Disclosure of facts or data underlying expert opinion 90.706
Authoritativeness of literature for use in cross-examination 90.801
Hearsay 90.802
Hearsay rule 90.803
Hearsay exceptions 90.804
Hearsay exceptions 90.805
Hearsay within hearsay 90.806
Attacking and supporting credibility of declarant 90.901
Requirement of authentication or identification 90.902
Self-authentication 90.903
Testimony of subscribing witness unnecessary 90.951
Definitions 90.952
Requirement of originals 90.953
Admissibility of duplicates 90.954
Admissibility of other evidence of contents 90.955
Public records 90.956
Summaries 90.957
Testimony or written admissions of a party 90.958
Functions of court and jury 90.2035
Judicial notice of information taken from web mapping services, global satellite imaging sites, or Internet mapping tools 90.4025
Admissibility of paternity determination in certain criminal prosecutions 90.4026
Statements expressing sympathy 90.5015
Journalist’s privilege 90.5021
Fiduciary lawyer-client privilege 90.5035
Sexual assault counselor-victim privilege 90.5036
Domestic violence advocate-victim privilege 90.5037
Human trafficking victim advocate-victim privilege 90.5055
Accountant-client privilege 90.6063
Interpreter services for deaf persons

Current through Fall 2025

§ 90.804. Hearsay exceptions; declarant unavailable's source at flsenate​.gov