When is a Witness Considered Unavailable in Florida?

June 20, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida criminal trials, a defendant has the right to cross-examine any witness called against them in accordance with the Sixth Amendment’s Confrontation Clause. However, a witness may sometimes be unavailable to testify at trial. 

Two common questions are often raised in the context witness unavailability, both of which this article will address:

1. When is a witness considered unavailable under Florida law?
2. If a witness is declared unavailable to testify in court, how does this impact the admissibility of their hearsay (out of court) statements at trial?

The criteria for a witness to be declared unavailable at trial is outlined by Fla. Stat. Section 90.804(1). A hearsay declarant (speaker of an out of court statement) is considered unavailable to testify as a witness at trial if any of the following are true:

• The declarant is exempted from testimony by a ruling of the court on the ground of privilege from testifying regarding the subject matter of their hearsay statement
• The declarant persists in refusing to testify regarding the subject matter of their statement despite a court order to do so
• The declarant has suffered a lack of memory of the subject matter of their statement so as to destroy their effectiveness as a trial witness
• The declarant is unable to be present at the hearing due to death, or because of then-existing physical or mental illness or infirmity, or
• The declarant is absent from the hearing, and the proponent of the statement (the side introducing the statement at trial) has been unable to procure the declarant’s attendance or testimony by process or other reasonable means 

Note: Hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement.

In determining the admissibility of an unavailable witness’s out of court (hearsay) statements, two types of hearsay must be distinguished between: testimonial and nontestimonial. Crawford v. Washington, 541 U.S. 36 (2004). 

Testimonial hearsay is an out of court statement made with the primary purpose of developing a government investigation or documenting past events for a future prosecution, such as a police interview with a witness at a crime scene or lab reports. 

By contrast, nontestimonial hearsay involves statements made for the primary purpose of responding to an ongoing emergency. This may include 911 calls while the criminal conduct is occurring, disclosures of physical or sexual abuse to friends or family members, or excited utterances in response to a startling event.

Under Fla. Stat. Section 90.804, nontestimonial hearsay that falls under any of the following exceptions is admissible at trial only when the witness is unavailable to testify:

• 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 it was 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.

Important: Fla. Stat. Section 90.803 outlines additional hearsay exceptions where the availability of the declarant is immaterial. This means hearsay that qualifies under a 90.803 exception may be admitted regardless of if the hearsay declarant is available or unavailable to testify. 

Notably, Florida’s hearsay exceptions are still subject to Crawford’s testimonial/nontestimonial distinction. This means that even if the witness is unavailable to testify at trial and the hearsay statement falls under one of the above exceptions – the statement must not have been made for the primary purpose of assisting a government investigation and/or a future prosecution. If it was, the statement cannot be admitted – even if the witness is dead or unable to be found.

However, an important exception to this is if a party wrongfully causes the hearsay declarant’s unavailability (by killing, injuring, or otherwise intimidating a witness that is later declared unavailable to testify at trial). 

If the party at trial deliberately causes the unavailability of a declarant through wrongdoing, that declarant’s hearsay statements are admissible against the party that caused the unavailability, regardless of whether this is testimonial or nontestimonial. The U.S. Supreme Court has held in Giles v. California, 554 U.S. 353 (2008) that a criminal defendant forfeits their confrontation rights if all of the following are true:

• The declarant is unavailable at trial
• The defendant engaged in wrongdoing
• The wrongdoing was intended to make the witness unavailable, and
• The wrongdoing caused the unavailability

Though 90.804 only recognizes certain grounds for “unavailability,” Florida’s child hearsay exception under 90.803(23) allows for an alleged child victim to be declared unavailable to testify at trial (and for their hearsay statement alleging abuse to be admitted) if all of the following are true:

• The child has a physical, mental, emotional or developmental age of 17 or less
• The hearsay statement describes an illegal act of child (physical or sexual) abuse of which the child was a victim or that occurred in their presence
• The statement is not considered untrustworthy
• The court makes a specific finding that there is a substantial likelihood of the child suffering significant mental or emotional harm if forced to testify in person

Notably, however, 90.803(23) is still subject to Crawford’s limitations. This means that if a child’s hearsay statement regarding the abuse is made in a setting indicating it is testimonial (such as to a police officer or forensic interviewer), the child must testify and the defendant must have the opportunity to cross examine them for the testimonial hearsay to be admissible. State v. Contreras, 979 So.2d 896 (Fla. 2008)

But this is not the case for nontestimonial hearsay. If the child’s hearsay is nontestimonial and qualifies under 90.803(23), this is considered admissible against a defendant at trial even if the child does not testify and is not cross-examined.

In sum, a witness is considered unavailable in Florida if they satisfy one or more of Fla. Stat. Section 90.804’s criteria for unavailability. These may include that a court has ruled the content of the declarant’s statement cannot be testified to (privilege), the declarant is dead, cannot be physically found, or is suffering from physical or mental infirmity (such as memory loss).

If a declarant is declared unavailable to testify at trial, their testimonial hearsay statements cannot be admitted unless the defendant had previously had the opportunity to cross-examine them. The sole exception to this rule is Giles – when the defendant wrongfully caused the declarant’s unavailability by committing wrongdoing that intentionally produced this result.

In the event that an unavailable witness’s statements are nontestimonial, they may be admitted if they qualify under any of 90.803 or 90.804’s designated hearsay exceptions – even if they were never cross-examined. 

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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