Hearsay Rules — Florida and Federal Court

The Evidence Code · Topic Guide

§§ 90.801–90.806, Fla. Stat. · Fed. R. Evid. 801–807 · Phillips, Hunt & Walker

Hearsay is the most-litigated evidence subject in an American courtroom. If a jury hears an out-of-court statement offered for the truth of what it says, one of three things happens: (1) it is not hearsay at all under the definition, (2) it fits an exception, or (3) it is inadmissible. Getting that call right — in real time, over an objection, during trial — is what separates prepared trial lawyers from everyone else.

This guide covers the Florida Evidence Code (Chapter 90, Part IV) and the Federal Rules of Evidence (Article VIII) side by side, with links to every rule and every exception. Florida’s provisions are statutory; the federal counterparts are court rules. The doctrine is close but not identical, and the differences matter.

The two-step hearsay framework

Every hearsay call runs through two questions, in this order:

Is the statement hearsay at all? Look at the definition and the categorical exclusions in § 90.801, Fla. Stat. (Florida) or Fed. R. Evid. 801 (federal). If it is not hearsay, it comes in with no exception needed.
If it is hearsay, does an exception apply? The catalog lives in § 90.803 (regardless of the declarant’s availability) and § 90.804 (unavailable declarant only). The federal counterparts are FRE 803, FRE 804, and the residual exception FRE 807.

Two overlays sit on top of the framework: layered hearsay, where every link in the chain needs its own exception, and the Confrontation Clause, which imposes constitutional limits in criminal cases.

What counts as hearsay — the definition

Both jurisdictions define hearsay the same way in substance:

An out-of-court statement offered in evidence to prove the truth of the matter asserted.

Read the rule: § 90.801, Fla. Stat. — Hearsay; definitions; exceptions · Fed. R. Evid. 801.

Three parts of that definition control most of the litigation:

“Statement.” An oral or written assertion, or nonverbal conduct intended as an assertion. A shrug can be a statement; running from police often is not, because it isn’t intended to assert anything.
“Out of court.” Anything the declarant said before this witness took this stand — including at a deposition, in a different trial, or in a written record.
“For the truth of the matter asserted.” This is the escape hatch. A statement offered for a non-truth purpose — to show notice, effect on the listener, state of mind, or that the words were spoken (as in a defamation or contract case) — is not hearsay at all.

Statements that are NOT hearsay by definition

Both codes carve certain statements out of the definition itself — treat them as evidence, not exceptions:

Prior statements of a testifying witness — a prior inconsistent statement given under oath, a prior consistent statement offered to rebut a charge of fabrication, or a prior identification. § 90.801(2), Fla. Stat.; FRE 801(d)(1).
Opposing-party statements — anything the opposing party said or adopted, or that an authorized agent or coconspirator said. § 90.803(18), Fla. Stat. (Florida places these among the § 90.803 exceptions rather than in the definition); FRE 801(d)(2). The federal rule was amended effective December 1, 2024 to broaden the coconspirator provision — check the current text.

The hearsay rule itself — § 90.802 / FRE 802

Both jurisdictions state the default the same way: hearsay is inadmissible unless a rule or a statute (federal) or a specific provision of the code, another statute, the state or federal Constitution (Florida) says otherwise. Read the rules: § 90.802, Fla. Stat. · Fed. R. Evid. 802.

Exceptions when the declarant’s availability doesn’t matter — § 90.803 / FRE 803

These are the workhorse exceptions. The declarant can be sitting in the gallery or unavailable — makes no difference. Full text: § 90.803, Fla. Stat. · Fed. R. Evid. 803. Florida enumerates 24 exceptions; the federal rule enumerates 23. Grouped by function:

The “in-the-moment” exceptions

Present sense impression. A statement describing an event or condition made while or immediately after the declarant perceived it. § 90.803(1); FRE 803(1). The narrow window is the whole doctrine.
Excited utterance. A statement relating to a startling event, made while the declarant was still under its stress. § 90.803(2), Fla. Stat.; FRE 803(2).
Then-existing mental, emotional, or physical condition. A statement of the declarant’s contemporaneous state of mind, emotion, sensation, or physical condition. § 90.803(3); FRE 803(3).
Statements for medical diagnosis or treatment. § 90.803(4); FRE 803(4). Includes statements about cause, insofar as pertinent to diagnosis or treatment.

Records exceptions

Recorded recollection. § 90.803(5); FRE 803(5).
Business records. § 90.803(6), Fla. Stat.; FRE 803(6). The single most-litigated hearsay exception in civil practice.
Absence of a business record. § 90.803(7); FRE 803(7).
Public records and reports. § 90.803(8); FRE 803(8). Federal rule substantively amended eff. December 1, 2014.
Absence of a public record. § 90.803(10); FRE 803(10).
Records of religious organizations, marriage/baptismal certificates, family records. § 90.803(11)–(13); FRE 803(11)–(13).
Records of property documents. § 90.803(14)–(15); FRE 803(14)–(15).
Statements in ancient documents. § 90.803(16); FRE 803(16). Federal rule tightened in 2017 to pre-1998 documents.

Reputation and reference-work exceptions

Market reports and commercial publications. § 90.803(17); FRE 803(17).
Learned treatises. § 90.803(18); FRE 803(18).
Reputation concerning personal or family history. § 90.803(19); FRE 803(19).
Reputation concerning boundaries or general history. § 90.803(20); FRE 803(20).
Reputation concerning character. § 90.803(21); FRE 803(21).

Judgment exceptions

Judgment of previous conviction. § 90.803(22); FRE 803(22).
Judgment as to personal, family, or general history, or boundaries. § 90.803(23); FRE 803(23).

Florida-only exceptions worth knowing

Statement of child victim — § 90.803(23), Fla. Stat.
Statement of elderly or disabled adult — § 90.803(24), Fla. Stat.
Party admissions — Florida places them at § 90.803(18), not in the definition.

Exceptions when the declarant is unavailable — § 90.804 / FRE 804

Full text: § 90.804, Fla. Stat. · Fed. R. Evid. 804.

Former testimony. § 90.804(2)(a); FRE 804(b)(1).
Dying declaration. Broader in Florida (any homicide or civil case). § 90.804(2)(b); FRE 804(b)(2).
Statement against interest. § 90.804(2)(c); FRE 804(b)(3).
Statement of personal or family history. § 90.804(2)(d); FRE 804(b)(4).
Forfeiture by wrongdoing. § 90.804(2)(e); FRE 804(b)(6).

Hearsay within hearsay — § 90.805 / FRE 805

Layered statements are admissible only if every layer independently fits an exception. Read: § 90.805, Fla. Stat. · Fed. R. Evid. 805.

Attacking the credibility of an absent declarant — § 90.806 / FRE 806

Read: § 90.806, Fla. Stat. · Fed. R. Evid. 806.

The federal residual exception — FRE 807

Federal courts have a safety-valve exception for statements with equivalent circumstantial guarantees of trustworthiness. Tightened by amendment eff. December 1, 2019. Read: Fed. R. Evid. 807.

Florida has no residual exception. The Florida Evidence Code is a closed list — if it isn’t in Chapter 90 (or elsewhere in the Florida Constitution or statutes), it isn’t a hearsay exception in Florida court, period.

The Confrontation Clause overlay — criminal cases only

In a criminal case, admissibility under the hearsay rules is only the first hurdle. The Sixth Amendment’s Confrontation Clause bars the government from using “testimonial” hearsay against a criminal defendant unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. The doctrine was reset by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), replacing the older reliability-based approach.

Applies only in criminal cases and only against the prosecution.
“Testimonial” typically means formal police interviews, affidavits, prior testimony.
Non-testimonial statements (911 calls, business records) generally are governed by the hearsay rules alone.
Forfeiture by wrongdoing forfeits Confrontation Clause objections as well.

Practical points from the trial bar

Object at the offer, not after. Interrupt.
State the exception you rely on. “Business records under § 90.803(6)” or “excited utterance” beats “not hearsay” by a mile.
Foundation first. Most Rule 803 exceptions need a small, specific foundation. Get it in before the substantive answer.
Watch for layered records. A business record repeating a third party’s statement needs two exceptions, not one.
Non-truth purposes. If offered to show notice, motive, effect on the listener, or state of mind, say so on the record.
Florida’s closed list. If you learned hearsay in federal court, remember Florida has no residual exception.