4.3 Hearsay and Florida-Specific Exceptions

Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted. Under Florida Statute § 90.802, hearsay is inadmissible unless an exception applies. The Florida Evidence Code divides these exceptions into those where the declarant's availability is immaterial (§ 90.803) and those where the declarant must be unavailable (§ 90.804). Florida's hearsay rules contain several critical statutory deviations from the Federal Rules of Evidence (FRE), including the classification of party admissions, the scope of dying declarations, and unique child and vulnerable adult exceptions.

Classification of Party Admissions

One of the most fundamental structural differences between Florida and federal evidence law is the classification of admissions by a party-opponent (statements made by a party and offered against that party by the opponent).

• Federal Rules (FRE 801(d)(2)): Admissions are defined as "exemptions" from hearsay and are classified as non-hearsay.
• Florida Code (§ 90.803(18)): Admissions are classified as hearsay exceptions.

While the practical admissibility is identical, this classification is a common trap on the Florida Bar Exam. On a Florida-specific essay or multiple-choice question, an admission by a party-opponent must be identified as falling under a hearsay exception, not as non-hearsay. The exception covers:

• Direct admissions made by the party;
• Adoptive admissions (where a party manifests belief in the statement's truth);
• Authorized admissions (made by a person authorized to speak);
• Vicarious admissions (made by an agent or employee concerning a matter within the scope of agency/employment, made during the relationship); and
• Co-conspirator admissions (made during the course and in furtherance of the conspiracy).

Hearsay Exceptions: Declarant Availability Immaterial (§ 90.803)

Florida Statute § 90.803 lists exceptions where the declarant's availability is irrelevant. Key exceptions include:

Spontaneous Statement vs. Excited Utterance

• Spontaneous Statement (§ 90.803(1)): A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (Equivalent to the FRE "Present Sense Impression"). Under Florida law, a spontaneous statement is inadmissible if it is made under circumstances indicating a lack of trustworthiness.
• Excited Utterance (§ 90.803(2)): A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Statements for Medical Diagnosis or Treatment (§ 90.803(4))

This exception covers statements made for the purpose of medical diagnosis or treatment. Florida limits this exception in two ways:

1. Who May Make the Statement: The statement must be made by the person seeking diagnosis or treatment, or by a person who has custody of or is legally responsible for the person seeking diagnosis or treatment (e.g., a parent describing their child's symptoms).
2. Exclusion of Liability Statements: Statements regarding fault or liability (e.g., "I was hit by a driver who ran a red light") are generally inadmissible under this exception. Only statements describing medical history, symptoms, pain, or the general cause of the condition (if relevant to treatment) are allowed.

Hearsay Exceptions: Declarant Unavailability Required (§ 90.804)

Under § 90.804, certain exceptions apply only if the declarant is unavailable. Unavailability is defined by § 90.804(1) and includes death, physical or mental illness, privilege, refusal to testify despite court order, lack of memory, or absence where attendance cannot be procured by process.

The Dying Declaration (§ 90.804(2)(b))

A dying declaration is a statement made by a declarant who is unavailable, while believing that death was imminent, concerning the cause or circumstances of what they believed to be impending death.

• The Florida Distinction: Under the FRE, a dying declaration is admissible only in civil cases and homicide prosecutions. In Florida, a dying declaration is admissible in ALL civil and criminal cases. For example, a dying declaration is fully admissible in a Florida robbery prosecution, a non-homicide battery case, or a breach of contract action, provided the declarant is unavailable.

Statement Against Interest (§ 90.804(2)(c))

This covers statements against the declarant's pecuniary, proprietary, or penal interest at the time they were made. In criminal cases, a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible unless corroborating circumstances show the statement is trustworthy.

Florida-Specific Statutory Hearsay Exceptions

Florida has enacted unique statutory hearsay exceptions to protect vulnerable witnesses, which do not exist in the FRE.

Child Victim Hearsay Exception (§ 90.803(23))

This exception allows the admission of out-of-court statements made by a child victim describing physical abuse, sexual abuse, or neglect.

• Age Limit: The child must be 16 years of age or under at the time the statement was made.
• Procedural Requirements: The trial court must conduct a hearing outside the presence of the jury and find, on the record, that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.
• Availability Requirement: The child must either testify at trial, or if the child is unavailable, there must be corroborative evidence of the abuse or neglect. Unavailability can be established if the court finds that trial testimony would cause the child severe emotional or mental harm.

Elderly or Vulnerable Adult Abuse Exception (§ 90.803(24))

This exception mirrors the child victim exception, allowing out-of-court statements by an elderly person (age 60 or older) or a vulnerable adult (as defined in § 415.102) describing abuse, neglect, exploitation, or assault.

• Procedural Requirements: The court must hold a hearing and find that the statement's circumstances provide sufficient safeguards of reliability.
• Availability Requirement: The declarant must either testify, or if they are unavailable, there must be corroborative evidence of the abuse or exploitation.