Hearsay in Florida: What is the Verbal Act Doctrine?

July 8, 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 within the statement. Hearsay is generally considered inadmissible in court unless it qualifies under one (or more) hearsay exceptions in the Florida Rules of Evidence (Fla. Stat. Sections 90.803 and 90.804).

As hearsay only refers to out of court statements offered to prove the truth of the matter asserted within them, out of court statements can be admissible in other contexts – even if they do not fall under a designated 90.803 or 90.804 exception.

An out of court statement may be introduced in court if it qualifies under what is referred to as the verbal act doctrine. But what is the verbal acts doctrine in the context of hearsay? This blog will explain the answer to this important question.

Under Fla. Stat. 90.801(b), out of court statements offered in court for purposes other than to prove the truth of the matter asserted within them.

The verbal act doctrine acknowledges this. For a statement to be considered a verbal act (making it non-hearsay), the following must be true of it:

• The statement was an utterance of an operative fact that gives rise to legal consequences
• The statement is being admitted in court solely to show that the statement was actually made, not to prove the truth of what was asserted in it

Common examples of verbal acts that do not qualify as hearsay may include:

• “I accept your offer” in a contract negotiation (the statement itself forms a contract)
• “You’re fired” in an employment dispute (the statement itself is the act of firing)
• “I do” in a marriage ceremony (the statement itself is agreement to the marriage)

These are considered verbal acts (as opposed to hearsay) because the statements are not being introduced for the truth value of what is being asserted. The introduction of a statement as a “verbal act” is intended to attach legal effect to the conduct that it accompanies. Banks v. State, 790 So. 2d 1094 (Fla. 2001)

By contrast, common examples of inadmissible hearsay statements may include the following:

• “Jane told me the light was red” (offered to prove the light was red)
• “James said he owns the car (offered to prove James actually owns the car)
• “Lisa said she saw the defendant shoot Mike” (offered to prove the defendant shot Mike)

Florida’s courts have routinely grappled with whether statements are considered verbal acts (admissible) or hearsay (inadmissible without falling under a qualifying exception) for purposes of allowing them to be used in legal proceedings. A seminal case on this issue is Stevens v. State, which surrounded a police officer’s testimony in a drug case. Stevens v. State, 642 So.2d 828 (Fla. 2d. DCA 1994).

Stevens challenged the admissibility of an undercover police officer’s testimony concerning the statements of his codefendant (Hill) allegedly made during a drug transaction involving Stevens and the officer. The officer testified that Hill approached him and asked what he was “looking for.” The officer replied that he was seeking a dime ($10 worth of cocaine).

After negotiations over the type and price of the substance, the officer testified that Hill walked towards Stevens and yelled, “I need a dime!” At that point, Stevens produced several baggies of cocaine from his pockets and offered one of them to Hill, who allegedly gave it to the officer. Stevens was convicted for his involvement in the trafficking scheme.

On appeal, Stevens argued that Hill’s statement (“I need a dime!”) was inadmissible hearsay. But Florida’s Second District Court of Appeal disagreed, holding that the statement was admissible under the verbal act doctrine. The court reasoned that the statement was not offered for the truth of the matter asserted (hearsay), but was instead used to prove Stevens acted on Hill’s statement, making him a participant in the drug sale.

Another major case on this issue is Banks v. State. There, the Florida Supreme Court grappled with the issue of admitting out-of-court statements from a suspect (Goodman) that were used to establish Banks’s guilt for involvement in drug trafficking. 

When questioned by an undercover officer, Goodman advised her that Banks “was straight up” and “cool” – indicating he was part of the operation. The officer testified to this at trial, and the jury later convicted Banks. Though he objected to hearsay at trial, the court overruled this, characterizing the statement as a verbal act. Banks v. State, 790 So. 2d 1094, 1096 (Fla. 2001)

But the Florida Supreme Court disagreed, reversing the verdict on the grounds that the comments were inadmissible hearsay. The Banks court contrasted the case with Stevens, noting that the statement was not introduced to prove Banks acted on it, but to prove his involvement in the drug trafficking scheme. This made it inadmissible hearsay (if it did not satisfy a qualifying exception). 

The court also observed that during closing arguments, the State cited the statements that Banks was “cool” and “straight up” as substantive evidence that he was part of the drug operation. This eliminated whatever remained of the “verbal act” argument. Id. 

In sum, the verbal act doctrine allows for the introduction of out of court statements as evidence of the legal effect of those statements – not for the truth of the matter asserted within them. For example, if someone declares their acceptance of a contract, this is not hearsay because the statement is being offered to prove a legal contract was formed.

If an out of court statement is offered to prove that words themselves were spoken at all or the legal effect of those words – not for the truth of the matter asserted in the statement – it can be introduced under the verbal act doctrine. However, this doctrine does have its limits.

Prosecutors – like those in Banks – may sometimes attempt to frame actual hearsay as admissible verbal act evidence. This is why it is critical to seek out an experienced and aggressive defense attorney to object to potential hearsay in a Florida criminal case. This may prove critical in the outcome of legal proceedings against a defendant.

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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