When Are Prior Inconsistent Statements Admissible in Florida Courts?

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 in the statement. Among the most important out of court statements at a criminal trial are prior inconsistent statements – prior statements from a witness that contradict or do not align with the content of their current testimony.

If a witness makes a prior inconsistent statement outside of court, a defense attorney may wish to impeach the witness (call their credibility into question) by introducing that prior statement and contrasting it with their current testimony. 

But if a prior inconsistent statement is made out of court, does Florida hearsay law allow for the introduction of this statement in court? The answer is yes… but not for the truth of the matter asserted in that prior inconsistent statement. This article will explore the admissibility of prior inconsistent statements in Florida’s courts.

Unlike prior inconsistent statements from a witness, prior consistent out-of-court statements are considered inadmissible under Fla. Stat. 90.801(2)(b) on the grounds that introducing these into evidence constitutes witness bolstering. However, a prior consistent out of court statement by a witness may be introduced if it is to rebut an allegation of “improper influence, motive, or recent fabrication.” 

If a prior consistent statement is introduced at trial, the party introducing that statement must be responding to a specific allegation from the other party that the witness’s incentive to fabricate (or improper influence or motive) their current testimony originated between the time of the prior consistent statement and their current testimony. Tome v. U.S, 513 U.S. 150 (1995); Ortuno v. State, 54 So. 3d 1086 (Fla. 1st DCA 2011)

By contrast, prior inconsistent statements are admissible in a wider range of circumstances. However, the purpose of admitting a prior inconsistent statement by a witness at trial is still relevant. A prior inconsistent statement generally cannot be introduced as substantive evidence of the truth of the matter asserted in that statement (Fla. Stat. 90.614(2) and 90.801(2)(a)). 

But under some circumstances, a prior inconsistent statement may be used as substantive evidence at trial. For this to occur, the following must be true:

• The declarant (speaker or author) of the statement must testify in a manner inconsistent with their prior statement
• The prior inconsistent statement must have been given under oath at a trial, hearing, deposition or other proceeding

In the event that both of these conditions are met, a prior inconsistent statement may be used not just as evidence of the declarant’s lack of credibility (impeachment) but as evidence that tends to prove or disprove a material fact in question at trial (substantive evidence). Marshall v. State, 68 So.3d 374 (Fla. 5th DCA 2011)

Note: In the context of admitting prior inconsistent statements as substantive evidence, Florida’s courts have limited the term “other proceeding” to not include police interrogations or informal interviews. Pearce v. State, 880 So.2d 561 (Fla. 2004)

As previously noted, there is no similar restriction on the introduction of prior inconsistent statements – whether made under oath or not – if the purpose of introducing these is to call the witness’s credibility into question (impeach the witness). Florida’s courts have consistently held that a witness can be confronted with a prior inconsistent statement on cross-examination.

Fla. Stat. Section 90.608 explicitly allows any party to attack the credibility of (impeach) any witness at trial by introducing statements made by that witness that are inconsistent with their current testimony. 

Although this may not intuitively seem compatible with Florida’s hearsay rules, courts have reasoned that such statements are admissible because their purpose is to test the credibility of the witness, not prove the truth of the matter asserted in the prior inconsistent statement. Elmer v. State, 114 So.3d 198 (Fla. 5th DCA 2012)

However, a prior inconsistent statement cannot be thrown at a witness out of the blue. Under Florida law, before using a prior inconsistent for impeachment purposes, the witness must be given the opportunity to explain or deny the prior statement. The opposing party must also be permitted to ask the witness about the statement (Fla. Stat. Section 90.614(2)).

Florida’s courts have held that when giving the witness the opportunity to explain or deny their prior inconsistent statement, the confronting party (the party introducing the prior inconsistent statement) must call the witness’s attention to all of the following (if available):

• The time and date of the prior inconsistent statement
• The place where the statement was made
• The person to whom the statement was made

If the witness denies they made the prior inconsistent statement, extrinsic (outside) evidence may be introduced by the confronting party to show that the statement was made. Hawn v. State, 300 So.3d 238 (Fla. 4th DCA 2020). However, extrinsic evidence may not be introduced until a witness is given the opportunity to explain or deny the prior inconsistent statement.

An example of a prior inconsistent statement that is admissible for impeachment purposes but not as substantive evidence is the following:

• James testifies: “I saw Arnold shoot the victim.” James told the police at the scene: “I didn’t see anything.” The defense can introduce the prior inconsistent statement to police to impeach James’s credibility, but not to prove the truth of the first statement (that he didn’t see anything).

By contrast, the following is an example of a prior inconsistent statement that can be introduced both for impeachment purposes and as substantive evidence:

• Annie says during a sworn deposition: “I saw Kevin take the money.” At trial, she says: “I didn’t see who took the money.” The prosecution may introduce the prior inconsistent statement both to impeach Annie’s credibility and as substantive evidence that Kevin took the money (since it was made under oath in a legal proceeding).

Note: Though prior inconsistent statements can sometimes be used as substantive evidence, the Florida Supreme Court has held that prior inconsistent statements alone cannot serve as the sole evidence for a criminal conviction. State v. Green, 667 So.2d 756 (Fla. 1995) 

In sum, prior inconsistent statements are admissible in Florida’s courts to attack the credibility of a witness (impeach). Before extrinsic (outside) evidence of a prior inconsistent statement can be introduced for impeachment purposes, the witness must be given the opportunity to explain or deny the statement.

Florida’s courts have ruled that prior inconsistent statements are not considered hearsay because they are introduced for impeachment purposes rather than to prove the truth of what is asserted in the statement. Occasionally, a prior inconsistent statement may be offered as evidence – but only if the prior inconsistent statement was made under oath at a legal proceeding (Fla. Stat. 90.608). 

Under Green, prior inconsistent statements cannot serve as the only evidence for a criminal conviction. However, the introduction of prior inconsistent statements at trial can significantly influence how a jury views witnesses – which may greatly influence the eventual outcome of a legal proceeding. 

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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