When Are Texts Admissible As Hearsay in Florida?

July 7, 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. It is generally inadmissible in court unless it falls under a designated exception outlined in Fla. Stat. Section 90.803 (hearsay exceptions for witnesses regardless of availability) or 90.804 (hearsay exceptions for unavailable witnesses).

But with the rise of text messages and other written digital communications, courts have increasingly confronted the question of when texts are admissible as hearsay at trial. This blog will discuss the potential admission of text messages as hearsay and the requirements that Florida’s courts have outlined before these communications can be introduced in a legal proceeding.

Florida’s Rules of Evidence (under Fla. Stat. Section 90.803 and 90.804) outline various exceptions allowing for the introduction of hearsay at trial. These 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.
• 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.
• 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))

Under the U.S. Supreme Court’s decision in Crawford v. Washington, there are two forms of hearsay: testimonial and nontestimonial. Testimonial hearsay includes statements that are made with the primary purpose of facilitating a police investigation or future prosecution. By contrast, nontestimonial hearsay is an out of court statement made for an alternative purpose (such as responding to an ongoing emergency), that is introduced for the truth of the matter asserted within it.

In Florida, testimonial hearsay is inadmissible unless one of the following is true:

• The declarant (speaker or author) of the hearsay statement testifies at a defendant’s trial and is cross-examined by the defendant
• The declarant is unavailable at trial but the defendant has had a prior opportunity to cross-examine them in a manner that satisfies the Sixth Amendment’s Confrontation Clause (Crawford)

Conversely, nontestimonial hearsay is considered admissible so long as it qualifies under a 90.803 or 90.804 hearsay exception. The admission of nontestimonial hearsay does not require the defendant to have the opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36 (2004)

In the context of texts, certain messages are likely to be considered testimonial hearsay, while others are likely to be considered nontestimonial.

Examples of testimonial text messages (which require the sender of the messages to testify) may include:

• A message sent to police or 911 reporting a crime after the danger has passed (“Yesterday, John hit me and threatened to kill me”)
• Messages sent during an ongoing investigation (“I am texting you the names of the people who took my car so you can report them”)
• Messages sent to a third party with the intent that these be forwarded to or shared with the authorities (“Please show this to the police – he said he’d come back with a gun”)

Examples of nontestimonial hearsay in the context of text messages – which may be introduced without the sender of the messages testifying – include:

• Casual conversations between private individuals
• Spontaneous or excited utterances during a crime or emergency (“Help! He’s coming right now!”)
• Text messages as part of ongoing friendly or familial relationships that are not directed at police (“I saw him with the stolen groceries – don’t tell anyone”)
• Drug transactions or criminal conspiracies (“Meet at 5 behind the store. Bring the package.”)

But even if a text qualifies for admission under a hearsay exception, this does not automatically make it admissible in court. Florida’s courts have held that unlike spoken words, phone calls or other speech, text messages must be authenticated before they can be introduced as hearsay at trial. Walker v. Harley‑Anderson, 301 So. 3d 299 (Fla. 4th DCA 2020).

In Walker, the court considered whether text messages allegedly exchanged between the plaintiff and defendant could be used as evidence in court under Florida’s hearsay rules. The court held that because the veracity of the messages (who sent and received them) could not be properly authenticated, the texts were inadmissible. Id.

The Walker court noted that Fla. Stat. Section 90.901 requires the authentication of evidence before it can be admitted. The proponent (party offering the evidence) must show that the evidence is what is claimed to be before it can be admitted. In the case of texts, the court held that authentication could be done by assessing:

• Appearance of the messages
• Content of the messages
• Internal patterns or characteristics of the messages
• Circumstantial evidence

The Walker court held that if no evidence other than the proponent’s claim is offered as to the authenticity of text messages, this is considered inadmissible as hearsay – even if these would otherwise be covered by a designated Florida hearsay exception.

Walker discussed the findings of various other courts – including the 4th DCA in Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012). In Symonette, text messages from the defendant’s phone were authenticated based on the fact that:

• The phone was recovered and searched by the police
• A witness confirmed the context of the messages
• That same witness identified Symonette as the other party in the text exchange

As a result, the 4th DCA upheld the admission of texts on the grounds that sufficient contextual and extrinsic evidence had been provided in the record of their authenticity. Id.

In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), a similar conclusion was reached by the 3rd DCA. There, a forensic examiner analyzed the defendant’s phone and recovered relevant texts that were admissible under a hearsay exception at trial. The 3rd DCA held that the texts were permissibly used against Lumarque at trial, as a forensic examiner’s recovery of the texts provides sufficient authentication.

Critically, authentication alone is insufficient for texts to be used as substantive evidence in a criminal proceeding. Even if texts are found to be authentic, they must fall under a qualifying Florida hearsay exception (under 90.803 or 90.804). If the texts are testimonial in nature, the declarant (sender) of the texts must testify as to their content – and the defendant must be given the opportunity to cross-examine them.

In sum, text messages can be introduced in court as substantive evidence if they comply with Florida’s hearsay rules and are properly authenticated. If a text message is testimonial in nature (sent for the primary purpose of facilitating a police investigation or future prosecution), the text cannot be admitted at trial unless the defendant has the opportunity to cross-examine the sender.

Whether a text message or chain of messages has been properly authenticated is a question for the court. However, under Walker v. Harley‑Anderson, text message chains are inadmissible as a matter of law if the party seeking to introduce them provides no evidence of their authenticity.

If someone is concerned about a case involving the potential admission of texts as hearsay, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to 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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