§ 90.804, Fla. Stat. — Hearsay Exceptions (Declarant Unavailable)
Plain English
This is the other half of the hearsay-exception story — these exceptions only open up when the declarant is unavailable: dead, too ill, privileged, refusing to testify despite a court order, genuinely unable to remember, or simply can’t be found despite real effort. When that’s true, several trustworthy categories come in: former testimony (a) the other side already had a chance to cross-examine; the dying declaration (b) — a statement made believing death was imminent; the statement against interest (c) — because people don’t usually say things that hurt their own wallet or expose them to liability unless they’re true; statements of personal or family history (d); and forfeiture by wrongdoing (f) — if you wrongfully made the witness unavailable to keep them off the stand, you forfeit your hearsay objection.
From the Courtroom
The dying declaration still carries the weight it did a century ago. There’s something a jury never forgets about a victim’s last words naming who did it. The real fight is rarely the words — it’s whether the declarant truly believed, in that moment, that death was imminent.
Key Points & Authority
- § 90.804(1): defines “unavailability” (privilege, refusal despite order, lack of memory, death/illness, or absence the proponent can’t cure) — but not if the proponent wrongfully caused it.
- § 90.804(2): exceptions — (a) former testimony; (b) statement under belief of impending death; (c) statement against interest; (d) personal/family history; (e) statement by a deceased/ill declarant similar to one already admitted; (f) statement against a party who wrongfully caused the declarant’s unavailability.
- Federal parallel: Fed. R. Evid. 804 — same structure, including forfeiture by wrongdoing (FRE 804(b)(6)).
Federal Parallel
The federal counterpart is Fed. R. Evid. 804, which defines unavailability and lists closely matching exceptions — former testimony, dying declarations, statements against interest, personal/family history, and forfeiture by wrongdoing.
About this rule walkthrough
Part of The Evidence Code, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
Free consultation: (904) 444-4444 · About John Phillips
Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
(1) DEFINITION OF UNAVAILABILITY.—“Unavailability as a witness” means that the declarant: (a) is exempted by a court ruling on the ground of privilege from testifying about the subject matter; (b) persists in refusing to testify about the subject matter despite a court order; (c) has suffered a lack of memory of the subject matter so as to destroy effectiveness as a witness; (d) is unable to be present or testify because of death or then-existing physical or mental illness or infirmity; or (e) is absent and the proponent has been unable to procure attendance or testimony by process or other reasonable means. However, a declarant is not unavailable if the exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the statement.
(2) HEARSAY EXCEPTIONS.—The following are not excluded under s. 90.802, provided the declarant is unavailable:
(a) Former testimony.—Testimony given as a witness at another hearing of the same or a different proceeding, or in a lawful deposition, if the party against whom it is now offered (or, in a civil action, a predecessor in interest) had an opportunity and similar motive to develop it by direct, cross, or redirect examination.
(b) Statement under belief of impending death.—In a civil or criminal trial, a statement made by a declarant while reasonably believing death was imminent, concerning the physical cause or instrumentalities of, or circumstances surrounding, the impending death.
(c) Statement against interest.—A statement which at the time of its making was so far contrary to the declarant’s pecuniary or proprietary interest, or tended to subject the declarant to liability or to invalidate a claim, that a reasonable person would not have made it unless believing it true. A statement exposing the declarant to criminal liability and offered to exculpate the accused is inadmissible unless corroborating circumstances show trustworthiness.
(d) Statement of personal or family history.—A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or similar fact of personal or family history, even without personal knowledge.
(e) Statement by deceased or ill declarant similar to one previously admitted.—In an action against a deceased person’s representative, heir, assignee, legatee, devisee, survivor, trustee, or a mentally incompetent person’s representative, when the declarant is unavailable under (1)(d), a statement on the same subject matter as another statement by the declarant previously offered by an adverse party and admitted.
(f) Statement offered against a party that wrongfully caused the declarant’s unavailability.—A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability, intending that result.
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Section 90.804 defines witness unavailability and lists hearsay exceptions that apply only when the declarant is unavailable: former testimony, dying declarations, statements against interest, personal/family history, and forfeiture by wrongdoing.