Everything You Need to Know About Hearsay in Florida

June 1, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement. Typically, hearsay is excluded from mention in criminal proceedings against a defendant.

But under certain circumstances, hearsay is admissible in a court of law. Hearsay may be offered in court when the hearsay statement falls under one of the designated “hearsay exceptions,” even if the declarant (speaker of the hearsay statement) is not available to testify at trial. There is also a difference between two types of hearsay: testimonial and nontestimonial. 

This article will explore hearsay exceptions under Florida law, review the difference between testimonial and nontestimonial hearsay, and discuss how the U.S. Supreme Court’s decisions and Florida law interact on the issue of hearsay admissibility.

Florida’s Rules of Evidence regarding hearsay are codified by Fla. Stat. Sections 90.803 and 90.804. Under Florida law, hearsay is generally considered inadmissible in Florida courts (whether testimonial or nontestimonial) unless it falls under a recognized hearsay exception.

Fla. Stat. Section 90.803 outlines a list of hearsay exceptions allowing for the admission of hearsay statements during official court proceedings, regardless of whether the declarant is available to testify at trial. These exceptions include:

• Present Sense Impression: Statement describing or explaining an event made while perceiving it or immediately after.
• Excited Utterance: Statement relating to a startling event made while under stress or excitement from the event.
• Then-Existing Mental, Emotional, or Physical Condition: Statement of current state of mind, emotion, sensation, or physical condition (e.g., intent, pain).
• Statements for Purposes of Medical Diagnosis or Treatment: Statement made for diagnosis/treatment describing medical history, symptoms, or cause.
• Recorded Recollection: A record made or adopted by the witness when memory was fresh, now insufficiently remembered.
• Records of Regularly Conducted Business Activity: Business records made near the time by someone with knowledge, as part of a routine practice.
• Absence of Business Record: Evidence that a matter is not included in business records to prove the event did not occur.
• Public Records and Reports: Records of public agencies showing activities, observations, or findings (excluding law enforcement reports in criminal cases).
• Public Records of Vital Statistics: Official records of births, deaths, marriages.
• Absence of Public Record or Entry: Proof that no entry exists in a public record to show an event did not occur.
• Records of Religious Organizations: Church records of family history like birth, marriage, and death.
• Marriage, Baptismal, and Similar Certificates: Official certificates issued by authorized individuals, showing family events.
• Family Records: Genealogical information found in family Bibles, engravings, pictures, etc.
• Records of Documents Affecting Property: Recorded documents like deeds that affect property interests.
• Statements in Ancient Documents: Statements in documents over 20 years old whose authenticity is established.
• Market Reports and Commercial Publications: Statements of facts in reliable commercial publications, like stock or commodity reports.
• Learned Treatises: Statements from authoritative publications used in expert testimony, read into evidence.
• Reputation Concerning Personal or Family History: Community reputation regarding family lineage or history. 
• Reputation Concerning Boundaries or General History: Reputation in the community about property boundaries or historical facts.
• Reputation Concerning Character: Reputation evidence of a person’s character when character is an issue.
• Judgment of Previous Conviction: Final judgment of felony conviction used to prove a fact essential to the judgment.
• Judgment as to Personal, Family, or General History or Boundaries: Judgments proving family history, personal relationships, or property boundaries.
• Child Hearsay: Out-of-court statements of a child with a physical or developmental age 17 or younger describing sexual abuse or physical abuse, admissible if trustworthy and child is either available for cross or unavailable with corroboration.
• Elderly or Disabled Adult Hearsay: Statements by elderly (60+) or disabled adults describing acts of abuse, neglect, or exploitation, admissible with reliability findings and notice to the opposing party.

Any nontestimonial hearsay statement or document found to qualify under one of these exceptions is considered admissible in court, regardless of whether the declarant testifies to the content of the hearsay. 

Under Fla. Stat. Section 90.804, an additional set of hearsay exceptions exists for statements and documents originating from unavailable declarants. Unlike Section 90.803, which allows for the admission of a qualifying hearsay statement regardless of if a witness is available to testify at trial, a qualifying statement under 90.804 can only be admitted if the declarant is unavailable to testify at trial. Section 90.804 exceptions include: 

• Former Testimony: Prior testimony given under oath in a proceeding or deposition where the opposing party had a similar motive and opportunity to develop it.
• Statement Under Belief of Imminent Death: Statement made while believing death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (Death must be so close that the declarant proverbially heard “the beating wings of the angel of death.” People v. Sarzano, 212 N.Y. 231 (1914))
• Statement Against Interest: Statement so contrary to declarant’s own interest (e.g., penal, pecuniary, proprietary) that a reasonable person wouldn’t have said it unless true.
• Statement of Personal or Family History: Statements about the declarant’s own or a relative’s birth, adoption, marriage, ancestry, etc., based on personal knowledge.
• Statement Offered Against Party That Wrongfully Caused Declarant’s Unavailability: Statement offered against a party who intentionally made the declarant unavailable through wrongdoing.

A common question is whether hearsay can be admitted in Florida’s courts if it does not fall under one of the recognized exceptions — but allowing its admission would be in the “interest of justice.” The answer is no. 

Unlike FRE 807 (the Federal Rules of Evidence), Florida does not recognize a “catch-all” hearsay exception in state courts. R.U. v. Department of Children & Families, 782 So.2d 1024 (Fla 4th DCA 2001). If a hearsay statement does not qualify for admission under a designated exception, it is inadmissible in Florida court, even if its admission potentially may alter the outcome of a legal proceeding.

Florida’s hearsay exceptions regulate the use of nontestimonial hearsay in courts. But under Crawford v. Washington, 541 U.S. 36 (2004), testimonial hearsay is inadmissible in Florida courts unless the declarant (speaker) is:

• Unavailable to testify at trial
• The defendant has had the opportunity to previously cross-examine them regarding the content of the statement

A hearsay statement is considered testimonial hearsay if it was made with the primary purpose of facilitating or providing information for a further prosecution or a government investigation. Some examples of testimonial hearsay statements include:

• Police interview hours after the emergency/incident occurs (Davis v. Washington)
• Pretrial testimony or witness depositions
• Child protection team/forensic interview by government agents (State v. Contreras)
• Statements made solely for the purpose of evidence collection at the scene

By contrast, a nontestimonial hearsay statement is a statement that is not made for the primary purpose of facilitating a future prosecution or government investigation, and is made in response to an ongoing emergency or event to a non-investigatory source. These include:

• 911 call made during an emergency event
• Statements disclosing abuse to friends, family members, teachers, relatives, or other non-government sources
• Statements to medical professionals describing a defendant’s alleged conduct if the purpose is facilitating medical treatment (a child says “he hurt me there,” and points to a body part)

Florida’s Third District Court of Appeal has noted that statements made to individuals who are not government agents are presumed nontestimonial. State v. Brocca, 979 So.2d 430 (Fla. 3d. DCA 2008) 

Under Crawford, nontestimonial hearsay statements may be offered in court if they comply with state or federal regulations regarding their admissibility. However, if hearsay is testimonial, the Sixth Amendment’s Confrontation Clause bars its use in court unless the defendant had the chance to cross-examine the witness. 

Hearsay is often at issue in cases involving allegations of physical or sexual abuse against a child. Though the child hearsay exception under Fla. Stat. Section 90.803(23) does not distinguish between testimonial and nontestimonial child hearsay, the Florida Supreme Court has ruled that allegations of abuse made by a child during a law enforcement or CPT interview are considered testimonial, triggering Crawford’s cross-examination requirement. State v. Contreras, 979 So.2d 896 (Fla. 2008)

Note: Contreras recognized that if a law enforcement officer or other government official overhears a nontestimonial hearsay statement (such as a child disclosing abuse to a nearby relative), it does not become testimonial. The statement must be made to the investigating party if it is to be considered testimonial. 

Under such circumstances, the child’s statement can still be admitted as nontestimonial hearsay under 90.803(23), even in the absence of cross-examination.

In sum, hearsay is an out of court statement offered in court to prove the truth of the matter asserted in the statement. Florida law creates various exceptions under 90.803 and 90.804 that allow for the admission of nontestimonial hearsay in state court when a declarant is unavailable to testify at trial – and in certain cases, even when the declarant is available.

If hearsay is considered testimonial, it is subject to the U.S. Supreme Court’s decision in Crawford v. Washington. Crawford held that testimonial hearsay is inadmissible at trial unless the defendant had the opportunity to cross-examine the declarant either in court or at a previous legal proceeding that satisfies confrontation requirements. Testimonial hearsay is a hearsay statement made for the primary purpose of establishing or proving events for a later prosecution.

If someone is arrested and formally charged in Florida in a case involving potential admission of hearsay, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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