Florida Evidence Code
Key Evidence Sections — Explained
§ 90.401. Definition of relevant evidence.
In plain English. Florida Statute 90.401 defines what counts as “relevant” evidence at trial. Evidence is relevant when it tends to prove or disprove a material fact, meaning a fact that actually matters to the case. The bar is low, so evidence only needs some tendency to make a material fact more or less likely.
What it means for your defense
This rule controls the front door to your trial, and you should understand how it works. Under section 90.401, evidence is relevant when it tends to prove or disprove a material fact, and a material fact is one that actually matters to deciding the case. This is so because the law does not let either side pile on details that have nothing to do with the real issues, such as whether the elements of the charge are met. Also, the test cuts both ways. The same rule that lets the State offer evidence lets your defense offer evidence that tends to disprove a material fact the State must prove. The threshold is intentionally low, so relevance is usually just the first gate, not the last. Clearing it matters because section 90.402 makes relevant evidence admissible only “except as provided by law,” which means relevant evidence can still be challenged and kept out under other rules, like section 90.403, when its probative value is substantially outweighed by unfair prejudice. Relevance opens the door. Other rules decide what walks through.
One caution: Clearing the low relevance bar of section 90.401 does not by itself make evidence admissible, because relevant evidence can still be excluded under section 90.403 when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
Leading Florida authority
- Williams v. State, 110 So. 2d 654 (Fla. 1959) — Foundational Florida decision on relevancy of other-crimes evidence, holding that evidence relevant to a material fact in issue is admissible unless its sole relevance is to show bad character or propensity. This similar-fact (‘Williams Rule’) principle is now codified in section 90.404(2)(a), Florida Statutes, and rests on the same general relevance concept defined in section 90.401.
Full statutory text of § 90.401
Relevant evidence is evidence tending to prove or disprove a material fact.
§ 90.403. Exclusion on grounds of prejudice or confusion.
In plain English. This rule lets a Florida judge keep relevant evidence out of a trial when its danger of unfairly prejudicing, confusing, or misleading the jury substantially outweighs how much it actually helps prove a fact. It is the filter that blocks inflammatory material designed to make jurors decide on emotion instead of proof.
What it means for your defense
Section 90.403 gives your defense a tool to keep damaging evidence away from the jury. Even evidence that is technically relevant can be excluded when its probative value is “substantially outweighed” by the danger of unfair prejudice, confusion of the issues, misleading the jury, or a needless pile-on of cumulative evidence. This is so because the law refuses to let jurors decide your case out of shock, disgust, or emotion instead of proof. Think gruesome photographs, inflammatory prior acts, or cumulative evidence that adds nothing but heat. Also, the word “substantially” matters, because the scale tilts toward letting evidence in, so your lawyer must show the danger of prejudice clearly overpowers any real value. We raise this through a motion in limine, before trial, asking the court to make the State justify each piece it wants the jury to see. The rule reaches collateral-crime or “Williams rule” evidence, too: even when prior-acts evidence is relevant under section 90.404, the judge can still exclude it under 90.403 when its prejudice substantially outweighs its worth. Pressed properly, this can narrow what the jury ever hears. Less heat means a fairer fight.
One caution: Because the test requires the danger to “substantially” outweigh probative value, the rule favors admission. Evidence that is merely unfavorable or unpleasant, rather than truly inflammatory or needlessly cumulative, will usually come in. Section 90.403 is also a rule of general application, not a defense-only weapon, and it cannot be used to keep out evidence of available third-party benefits. Every ruling turns on the specific facts, so no result is guaranteed.
Leading Florida authority
- Williams v. State, 110 So. 2d 654 (Fla. 1959) — Foundational Florida authority establishing that evidence of other crimes, wrongs, or acts is admissible when relevant to a material fact and is not barred merely because it reveals collateral criminal conduct. This ‘Williams rule’ is codified in section 90.404(2)(a); even when such evidence clears that relevance gateway, section 90.403 supplies the separate filter that can still exclude it when its prejudice substantially outweighs its probative value.
- Steverson v. State, 695 So. 2d 687 (Fla. 1997) — The Florida Supreme Court applied the section 90.403 balancing test to collateral-crime (‘Williams rule’) evidence and reversed where the State was permitted to present excessive, inflammatory evidence of a separate shooting so that the collateral crime became a feature of the trial, confirming that the trial court must weigh the danger of unfair prejudice against probative value.
- Czubak v. State, 570 So. 2d 925 (Fla. 1990) — Gruesome photographs of the victim’s body were improperly admitted where their probative value was at best extremely limited and their shocking, inflammatory nature stemmed from circumstances above and beyond the killing (decomposition and animal damage) rather than the killing itself, illustrating exclusion under the section 90.403 prejudice analysis.
Full statutory text of § 90.403
Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. This section shall not be construed to mean that evidence of the existence of available third-party benefits is inadmissible.
§ 90.404. Character evidence; when admissible.
In plain English. This rule controls when the State can use your past bad acts against you. As a general matter, the prosecution cannot show you are a bad person to argue you committed this crime. It can use a prior crime, wrong, or act only when that act proves something specific, like motive, intent, plan, knowledge, or identity, and never when it is offered only to suggest you are the kind of person who would do it.
What it means for your defense
Section 90.404 protects you from being convicted for who the State says you are instead of what the State can prove you did. The general rule is that your character cannot be used to argue you “acted in conformity” with it on this occasion. This is so because the law refuses to let a jury reason that a bad person must be guilty. The State can introduce a prior crime, wrong, or act only when it is relevant to a real material fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, and it is inadmissible when offered solely to prove bad character or propensity. Also, when the State intends to use such evidence, the statute requires it to give you or your counsel written notice no fewer than 10 days before trial, describing the acts with the particularity required of an indictment or information. That notice is automatic, not something you have to demand, and no notice is required for evidence used to impeach you or on rebuttal. You can challenge the evidence before trial and ask the court to weigh its probative value against the danger of unfair prejudice. If the evidence comes in, the court must, if you request it, instruct the jury on the limited purpose for which the evidence may be considered; and after the close of evidence the jury must be instructed both on that limited purpose and that you cannot be convicted for a charge not included in the indictment or information.
One caution: The protection narrows sharply in child-molestation and sexual-offense cases. Section 90.404(2)(b) allows the State to use the defendant’s other acts of child molestation, and section 90.404(2)(c) allows the State to use other sexual-offense acts, on any matter to which they are relevant, including propensity. In McLean v. State, the Florida Supreme Court upheld section 90.404(2)(b) but held that, to satisfy due process, the trial court must first find the prior act proven by clear and convincing evidence and then weigh its probative value against the danger of unfair prejudice under section 90.403. Florida courts apply those same safeguards to sexual-offense evidence offered under section 90.404(2)(c).
Leading Florida authority
- Williams v. State, 110 So. 2d 654 (Fla. 1959) — Source of the “Williams Rule” now codified in section 90.404(2)(a): evidence of other crimes, wrongs, or acts is admissible when relevant to a material fact in issue, such as motive, intent, plan, or identity, but is inadmissible when its sole relevance is to prove bad character or propensity.
- McLean v. State, 934 So. 2d 1248 (Fla. 2006) — Upheld section 90.404(2)(b) for child-molestation cases against a due-process challenge, but required the trial court to find the prior act proven by clear and convincing evidence and to weigh its probative value against the danger of unfair prejudice under section 90.403 before admitting it.
Full statutory text of § 90.404
(1) CHARACTER EVIDENCE GENERALLY. — Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion, except:
(a) Character of accused. — Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the trait.
(b) Character of victim. — 1. Except as provided in s. 794.022 , evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or 2. Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.
(c) Character of witness. — Evidence of the character of a witness, as provided in ss. 90.608 – 90.610 .
(2) OTHER CRIMES, WRONGS, OR ACTS. —
(a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity. (b)1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant. 2. For the purposes of this paragraph, the term “child molestation” means conduct proscribed by s. 787.025
(2)(c), s. 787.06
(3)(g), former s. 787.06
(3)(h), s. 794.011 , excluding s. 794.011 (10), s. 794.05 , former s. 796.03 , former s. 796.035 , s. 800.04 , s. 827.071 , s. 847.0135 (5), s. 847.0145 , or s. 985.701 (1) when committed against a person 16 years of age or younger. (c)1. In a criminal case in which the defendant is charged with a sexual offense, evidence of the defendant’s commission of other crimes, wrongs, or acts involving a sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant. 2. For the purposes of this paragraph, the term “sexual offense” means conduct proscribed by s. 787.025
(2)(c), s. 787.06
(3)(b), (d), (f), or (g), former s. 787.06
(3)(h), s. 794.011 , excluding s. 794.011 (10), s. 794.05 , former s. 796.03 , former s. 796.035 , s. 825.1025
(2)(b), s. 827.071 , s. 847.0135 (5), s. 847.0145 , or s. 985.701 (1). (d)1. When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a), paragraph (b), or paragraph (c), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant’s counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal. 2. When the evidence is admitted, the court shall, if requested, charge the jury on the limited purpose for which the evidence is received and is to be considered. After the close of the evidence, the jury shall be instructed on the limited purpose for which the evidence was received and that the defendant cannot be convicted for a charge not included in the indictment or information.
(3) Nothing in this section affects the admissibility of evidence under s. 90.610 .
§ 90.405. Methods of proving character.
In plain English. This rule sets the two ways character may be proven in a Florida case, civil or criminal. When a person’s character is admissible at all, the normal method is reputation testimony, meaning a witness speaks to what the person is known for. A party may instead prove character with specific past acts only when that character is an essential element of a charge, claim, or defense.
What it means for your defense
When character is properly in a case, this rule controls how you are allowed to prove it. The default is reputation testimony, meaning a witness speaks to what a person is known for in the community. This is so because the law treats general reputation as the cleaner, less inflammatory way to establish character. Specific past incidents are a different matter. You may prove character with specific instances of conduct only when that character is an essential element of the charge, claim, or defense. A common example is a self-defense case: your reasonable apprehension of the alleged victim is an essential element, so specific prior acts of that person’s violence can come in, but only acts you actually knew about before the incident, because the point is what was in your mind. Reputation evidence that the alleged victim was the aggressor follows a looser rule and does not require that you knew of it beforehand. Either way, Florida courts require a threshold showing first: some overt act by the alleged victim at or about the time of the incident that reasonably signaled a need to act in self-defense. Also, knowing which method applies shapes the witnesses we line up and the evidence we move to admit or keep out. The method is not a technicality. It can decide what the jury ever hears.
One caution: When a person’s character is not an essential element of the case, you are limited to reputation testimony and cannot prove character with specific past acts. Even where specific acts are allowed, such as in self-defense, there are strict conditions: you generally must have known of the acts before the incident, and you must first show an overt act by the alleged victim that reasonably placed you in fear. Miss those conditions and the evidence stays out.
Leading Florida authority
- Smith v. State, 606 So. 2d 641 (Fla. 1st DCA 1992) — In a self-defense case, reputation evidence of the alleged victim’s violent character is admissible under section 90.405(1) to show the victim was the aggressor (no prior knowledge required), while specific instances of the victim’s violent conduct are admissible under section 90.405(2) because the defendant’s apprehension of bodily harm is an essential element of the defense, provided the defendant knew of those acts beforehand and laid a predicate overt act by the victim.
- Hedges v. State, 667 So. 2d 420 (Fla. 1st DCA 1996) — Reversing a battery conviction, the court held that to prove the alleged victim’s dangerous character in a self-defense case, evidence either of the victim’s reputation for violence or of specific prior acts of violence is admissible when the defendant knew of those acts or that reputation at the time of the offense, because the specific acts are relevant to the reasonableness of the defendant’s apprehension, so long as a predicate overt act by the victim is shown.
Full statutory text of § 90.405
(1) REPUTATION. — When evidence of the character of a person or of a trait of that person’s character is admissible, proof may be made by testimony about that person’s reputation.
(2) SPECIFIC INSTANCES OF CONDUCT. — When character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.
§ 90.608. Who may impeach.
In plain English. This Florida rule lets either side attack a witness’s believability, including the side that called that witness. You can challenge a witness in five ways: showing prior statements that clash with their testimony, showing the witness is biased, attacking their character for truthfulness (including certain prior criminal convictions), showing a flawed ability to see, remember, or recount what they describe, and calling other witnesses who show key facts are not as testified.
What it means for your defense
Section 90.608 gives your defense five concrete ways to attack a witness whose testimony hurts you. Your lawyer can confront that witness with statements they made earlier that clash with what they say on the stand, show the witness is biased, attack their character for truthfulness (which can include certain prior criminal convictions), show they could not clearly see, remember, or recount what they claim, and call other witnesses who show the facts are not as testified. This is so because the statute treats credibility as fair game for every party. Also, the rule cuts both ways and is not a defense-only tool: it lets the State impeach its own witness who turns on it, and it lets your defense impeach a witness it called too. This matters because cases are often built on people whose accounts shift, and the law gives you tools to put those shifts in front of the jury. Credibility is the battleground.
One caution: A party cannot call a witness mainly as a pretext to slip otherwise-inadmissible prior statements before the jury as substantive proof; that subterfuge is improper under Morton v. State. There is no legitimate purpose in calling a witness solely to impeach them with a prior statement that could not otherwise come in.
Leading Florida authority
- Morton v. State, 689 So. 2d 259 (Fla. 1997) — The Florida Supreme Court confirmed that under section 90.608 any party, including the party calling the witness, may impeach with prior inconsistent statements, but held that a party may not call a witness for the primary purpose of impeaching them as a subterfuge to place otherwise inadmissible statements before the jury as substantive evidence.
Full statutory text of § 90.608
Any party, including the party calling the witness, may attack the credibility of a witness by:
(1) Introducing statements of the witness which are inconsistent with the witness’s present testimony.
(2) Showing that the witness is biased.
(3) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610 .
(4) Showing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which the witness testified.
(5) Proof by other witnesses that material facts are not as testified to by the witness being impeached.
§ 90.610. Conviction of certain crimes as impeachment.
In plain English. If you take the stand in a Florida case, the other side can tell the jury that you have a prior conviction to suggest you are less believable. This applies to any witness, not just a defendant. But the conviction has to qualify: it must be a felony, meaning a crime punishable by death or by more than one year in prison, or any crime involving dishonesty or a false statement. Juvenile adjudications do not count, and in a civil case a conviction too old to say anything about your character now can be kept out. The questioning is usually limited to whether you were convicted and how many times.
What it means for your defense
If you testify, the other side can use your record to chip away at your credibility. This is a rule about any witness and any party, though in a criminal case it most often means the State using a defendant’s record. The door only opens for certain convictions: a felony, meaning a crime punishable by death or by more than one year in prison, or any crime involving dishonesty or a false statement. Juvenile adjudications are off limits, and in a civil trial a conviction so old that it says nothing about who you are today can be excluded. The questioning is also tightly limited. The other side may ask whether you have been convicted of a qualifying crime and how many times, and that is generally where it stops. This is so because the rule lets the jury weigh your believability without putting your whole past on trial. The trap is simple: if you answer untruthfully or try to mislead the jury about your record, you open the door, and the other side can then dig into the details to correct the false impression. One more thing worth knowing is that a pending appeal or a pardon does not keep the conviction out. This is important because how you handle the question can matter as much as the conviction itself. Answer straight, and the inquiry stays narrow.
One caution: If you answer untruthfully or try to minimize your record on the stand, you open the door for the other side to question you about the nature and details of your prior convictions. How you answer the question can matter as much as the conviction itself.
Leading Florida authority
- Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992) — Confirms that impeachment under section 90.610 is generally restricted to whether the witness was convicted and how many times, and that the questioner may not inquire into the nature of the prior convictions unless the witness answers untruthfully and creates a false impression, in which case further questioning is allowed to negate that false impression.
- Lawhorne v. State, 500 So. 2d 519 (Fla. 1986) — Recognizes a testifying defendant’s right to anticipatory rehabilitation, allowing him to bring out his own prior convictions first to take the wind out of the impeachment, but cautions that the trial court controls how far that goes so the parties do not wander too far afield.
- Cummings v. State, 412 So. 2d 436 (Fla. 4th DCA 1982) — Sets out the proper procedure for prior-conviction impeachment, confining the questioning to whether the witness has been convicted of a qualifying crime and how many times, and barring inquiry into the nature of the offenses unless the witness denies a conviction or volunteers the details.
Full statutory text of § 90.610
(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:
(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.
(b) Evidence of juvenile adjudications are inadmissible under this subsection.
(2) The pendency of an appeal or the granting of a pardon relating to such crime does not render evidence of the conviction from which the appeal was taken or for which the pardon was granted inadmissible. Evidence of the pendency of the appeal is admissible.
(3) Nothing in this section affects the admissibility of evidence under s. 90.404 or s. 90.608 .
§ 90.701. Opinion testimony of lay witnesses.
In plain English. This rule lets an ordinary witness, not an expert, share an opinion or impression about something they personally saw or heard, like whether someone seemed drunk or upset. The catch is that the opinion has to be the natural shorthand for what they actually perceived, it cannot be the kind of thing that needs special training, and it cannot mislead the jury. If it crosses any of those lines, it does not belong in front of the jury.
What it means for your defense
When the State puts a regular witness on the stand against you, that witness is supposed to give the jury facts, not dressed-up conclusions. Section 90.701 lets a non-expert offer an opinion about what he or she perceived, but only on conditions. First, the witness has to be describing something personally perceived. Then the statute adds two more requirements: the opinion has to be the only practical way to convey what was perceived without misleading the jury to your prejudice, and it cannot require special knowledge, skill, experience, or training. This is so because the moment a witness guesses about something they did not see, or dresses up an expert conclusion as a casual impression, the testimony stops being ordinary observation and starts demanding expertise the rule does not allow, so the judge can keep it out. Also, “you seemed impaired” or “that looked like a deadly weapon” is exactly the kind of testimony we test against this rule. Your defense scrutinizes whether each opinion is grounded in what the witness actually observed and whether it secretly demands expertise the witness lacks. Where it crosses that line, we object and ask the court to strike it.
One caution: The biggest trap is the opinion that sounds casual but actually requires expert training, such as a witness calling a substance a particular drug or describing an injury as “consistent with” a specific cause. That kind of conclusion needs the foundation of section 90.702, not section 90.701, and since Florida moved to the Daubert standard for experts, that foundation is harder for the State to lay than it used to be.
Leading Florida authority
- Nardone v. State, 798 So. 2d 870 (Fla. 4th DCA 2001) — Reversed in part where an officer who never witnessed the assault was allowed to opine that the object used was a deadly weapon; that opinion was speculative and not based on her own personal perception, so it was not permissible lay opinion under section 90.701, which requires the opinion to rest on what the witness actually perceived.
- Floyd v. State, 569 So. 2d 1225 (Fla. 1990) — Applying section 90.701(2), the Florida Supreme Court held that officers’ opinions that a wound was a ‘defensive wound’ and that the victim’s injuries occurred at the same time called for special knowledge, skill, experience, or training and were not proper lay opinion, while other testimony was admissible because it fell ‘within the permissible range of lay observation and ordinary police experience’ – drawing the exact line between an everyday impression and a conclusion that demands expertise.
Full statutory text of § 90.701
If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.
§ 90.702. Testimony by experts.
In plain English. This rule controls when an expert witness can testify in your case. A person qualified by knowledge, skill, experience, training, or education may give an opinion only if it rests on sufficient facts or data, uses reliable principles and methods, and applies those methods reliably to the facts of your case. The judge screens that reliability before the jury ever hears it, and the same test applies whether the expert belongs to the State or to your defense.
What it means for your defense
When an expert takes the stand, your case can turn on what that expert tells the jury. Section 90.702 puts a gatekeeper between that expert and the verdict. The judge must confirm the testimony rests on sufficient facts or data, comes from reliable principles and methods, and that the expert applied those methods reliably to your facts. This is so because Florida adopted the Daubert standard, which makes the judge test the science itself, not just the expert’s resume. Also, this means your defense can demand a hearing before trial to expose junk methods, untested techniques, or sloppy lab work and ask the court to keep that opinion out. A credentialed witness is not enough. The method has to hold up, and the party offering the expert carries the burden of showing it does.
One caution: Qualifications alone do not make testimony admissible, and a missed pretrial objection can waive the challenge, so the reliability of the method must be attacked early under Daubert. This page is general information, not legal advice, and the outcome of any expert challenge depends on the specific facts of your case.
Leading Florida authority
- In re Amendments to the Florida Evidence Code, 278 So. 3d 551 (Fla. 2019) — The Florida Supreme Court adopted the Daubert amendments to section 90.702, receding from its earlier position and replacing the Frye general-acceptance test, so judges now act as gatekeepers screening expert testimony for reliability. This is the controlling authority and remains good law.
Full statutory text of § 90.702
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
§ 90.704. Basis of opinion testimony by experts.
In plain English. This rule lets an expert witness base an opinion on facts or data the expert relied on before or during trial, even if some of that underlying material could not be admitted on its own, so long as it is the type of material experts in the field reasonably rely on. But the party offering the opinion does not get to put that inadmissible material in front of the jury unless the judge finds its value in helping the jury evaluate the opinion substantially outweighs its prejudicial effect.
What it means for your defense
When the State puts an expert on the stand against you, that expert can lean on facts and data gathered before trial, and some of it may be material that would never reach a jury on its own. That sounds dangerous, and it can be. This is so because an expert who repeats inadmissible reports, lab notes, or another person’s conclusions can smuggle evidence in front of your jury that you never get to cross-examine. The rule builds a wall against exactly that. Also, the inadmissible facts behind the opinion stay hidden from the jury unless the judge specifically finds their value in helping the jury weigh the opinion substantially outweighs their prejudicial effect. That gatekeeping is your leverage. Your defense fights to keep the State’s expert from becoming a mouthpiece for hearsay. We push the State to prove the opinion, not parrot it.
One caution: The rule cuts both ways: an expert may rely on inadmissible facts, so the fight is usually not whether the expert can use them but whether the State may disclose them to the jury, and that disclosure requires a separate judicial balancing ruling under the statute’s substantially-outweighs standard.
Leading Florida authority
- Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006) — The Florida Supreme Court held that an expert may not testify on direct examination that the opinion was formed after consulting other experts, because doing so improperly bolsters the opinion and turns the expert into a conduit for hearsay the opposing party cannot cross-examine.
- Gerber v. Iyengar, 725 So. 2d 1181 (Fla. 3d DCA 1998) — Section 90.704 does not allow a party to use an expert’s testimony as a vehicle to place otherwise inadmissible hearsay before the jury; eliciting an expert’s account of an out-of-court conversation to prove the truth of that conversation improperly turns the expert into a conduit for hearsay the opposing party cannot cross-examine.
Full statutory text of § 90.704
The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
§ 90.801. Hearsay; definitions; exceptions.
In plain English. Hearsay is an out-of-court statement that someone repeats in court to prove that what was said is true. Florida generally keeps hearsay out, because the person who said it is not in the courtroom to be questioned. But if a statement is offered for some other reason, or fits an exception, it can still come in.
What it means for your defense
When the State wants a witness to repeat what someone else said outside of court to prove you did something, that is hearsay, and the rule exists to guard you against secondhand accusation. This is so because the person who actually made the statement is not in the courtroom, under oath, where your attorney can cross-examine them and test whether the account is true. Also, the rule turns on why the statement is offered. This is important because if the only reason the State wants it in is to prove the statement is true, it is hearsay even when prosecutors dress it up with a different label, such as calling it the “logical sequence” of a police investigation. The statute also carves out a narrow set of statements that are defined as not hearsay, but only when the person who made the statement actually testifies at your trial and is available for cross-examination about it. Your defense lives in these distinctions, and we work to keep unreliable secondhand accounts away from your jury.
One caution: The hearsay bar does not apply when a statement is offered for a non-truth purpose, such as its effect on the listener, and Florida recognizes many statutory exceptions that can let an out-of-court statement in. How section 90.801 applies depends heavily on the specific facts and on why the statement is offered, so this overview is general information, not legal advice about your case.
Leading Florida authority
- Keen v. State, 775 So. 2d 263 (Fla. 2000) — Where the only relevance of an out-of-court statement is to prove the truth of what it asserts, it is hearsay, and the State cannot make it admissible by relabeling it as non-hearsay; accusatory information offered merely to show the ‘logical sequence of events’ in an investigation is inadmissible because its prejudice outweighs its probative value.
- Conley v. State, 620 So. 2d 180 (Fla. 1993) — An out-of-court statement that conveys accusatory information but is offered simply to establish a logical sequence of events is inadmissible hearsay; its prejudice substantially outweighs any probative value, and the State may not use it to put a non-testifying accuser’s words before the jury.
Full statutory text of § 90.801
(1) The following definitions apply under this chapter:
(a) A “declarant” is a person who makes a statement. (b) “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(c) A “statement” is: 1. An oral or written assertion; or 2. Nonverbal conduct of a person if it is intended by the person as an assertion.
(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:
(a) Inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(b) Consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or
(c) One of identification of a person made after perceiving the person.
§ 90.802. Hearsay rule.
In plain English. Hearsay is an out-of-court statement that someone repeats in court to prove the statement was true. Section 90.802 makes that kind of evidence inadmissible. Unless a specific statutory exception applies, a secondhand statement cannot come in, and the judge must keep it out. Because the Evidence Code lists many exceptions, the real fight is usually whether a statement fits one of them.
What it means for your defense
Section 90.802 says hearsay evidence is inadmissible unless a statute specifically allows it. This matters to your defense because the State often wants to prove its case with what someone said outside of court instead of putting that person on the witness stand. The hearsay rule guards the same values as your right to confront the witnesses against you: a statement nobody can cross-examine cannot be tested for lies, mistakes, faulty memory, or motive. This is so because the person who made the statement is not in the courtroom, under oath, facing your attorney’s questions. Also, the label the State puts on the evidence does not control. The Florida Supreme Court has held that when an out-of-court statement is offered to prove the truth of an accusation, it is hearsay no matter what \”purpose\” the proponent claims. Your attorney can object and ask the court to exclude it. The right objection at the right moment can shape the entire course of your trial.
One caution: The ban has many statutory exceptions (sections 90.803 and 90.804 list dozens, covering things like excited utterances, business records, and admissions), so the real fight is usually whether the statement fits one of those exceptions, not whether it is hearsay in the first place. Keep in mind, too, that the hearsay rule and the constitutional right to confront witnesses are related but separate; a statement can clear one and still run into the other.
Leading Florida authority
- Conley v. State, 620 So. 2d 180 (Fla. 1993) — The Florida Supreme Court held that admitting an out-of-court statement that relates accusatory information (here, a police dispatch report that a man was chasing a woman with a rifle) merely to establish the ‘logical sequence of events’ is inherently prejudicial and inadmissible; because the statement was effectively used to prove the truth of the matter asserted, it was hearsay falling within no recognized exception, regardless of the purpose the State claimed.
- Keen v. State, 775 So. 2d 263 (Fla. 2000) — The Florida Supreme Court held that an officer’s testimony relaying what others told him during the investigation was inadmissible hearsay where the clear inference was that those out-of-court declarants implicated the defendant; offering the statements to ‘explain the police investigation’ or show a ‘sequence of events’ did not avoid the hearsay bar of section 90.802, and admission of such testimony required reversal.
Full statutory text of § 90.802
Except as provided by statute, hearsay evidence is inadmissible.
§ 90.803. Hearsay exceptions; availability of declarant immaterial.
In plain English. This rule lists the kinds of out-of-court statements a court can let into evidence even though the person who said them never takes the stand. It covers things like spontaneous statements and excited utterances, statements made to get medical diagnosis or treatment, business records, and public records. Whether that person is available to testify does not matter.
What it means for your defense
Section 90.803 is how a party puts words spoken outside the courtroom in front of your jury without ever calling the person who said them. In a criminal case, that usually means the State, and that should concern you, because it means a 911 call, a statement to a treating doctor, or a business record can become evidence against you. This is so because the statute treats certain kinds of statements as reliable enough to skip live testimony entirely. Also, each exception carries its own foundational requirements the proponent must satisfy first. An excited utterance must actually be made while the declarant is still under the stress of the startling event, not after time to reflect. A business record needs a proper foundation before a judge admits it. Your defense works inside those limits, challenges whether the statement truly fits the exception it is offered under, and holds the State to every element it tried to skip. The exception is the State’s door. The requirements are your lever.
One caution: Watch the excited-utterance exception closely: if enough time passed to permit reflective thought, the statement should not come in absent proof the declarant did not in fact reflect, because a calm, considered account is not an excited utterance.
Leading Florida authority
- State v. Jano, 524 So. 2d 660 (Fla. 1988) — Sets the excited-utterance standard under 90.803(2): there must be a startling event, the statement must be made before there was time to contrive or misrepresent, and it must be made while the declarant is still under the stress of excitement from the event. Where the interval is long enough to permit reflective thought, the statement is excluded absent proof the declarant did not in fact engage in reflective thought.
- Yisrael v. State, 993 So. 2d 952 (Fla. 2008) — Lays out the foundation the proponent must establish for the business-records exception under 90.803(6): the record was made at or near the time of the event, by or from information transmitted by a person with knowledge, kept in the course of a regularly conducted business activity, and made as a regular practice of that business, and reaffirms that evidence offered under a hearsay exception must be in strict compliance with that exception’s requirements.
Full statutory text of § 90.803
The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(1) SPONTANEOUS STATEMENT. — A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.
(2) EXCITED UTTERANCE. — A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION. —
(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: 1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. 2. Prove or explain acts of subsequent conduct of the declarant.
(b) However, this subsection does not make admissible: 1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will. 2. A statement made under circumstances that indicate its lack of trustworthiness.
(4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. — Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.
(5) RECORDED RECOLLECTION. — A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY. —
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902 (11), unless the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(b) Evidence in the form of an opinion or diagnosis is inadmissible under paragraph (a) unless such opinion or diagnosis would be admissible under ss. 90.701 – 90.705 if the person whose opinion is recorded were to testify to the opinion directly.
(c) A party intending to offer evidence under paragraph (a) by means of a certification or declaration shall serve reasonable written notice of that intention upon every other party and shall make the evidence available for inspection sufficiently in advance of its offer in evidence to provide to any other party a fair opportunity to challenge the admissibility of the evidence. If the evidence is maintained in a foreign country, the party intending to offer the evidence must provide written notice of that intention at the arraignment or as soon after the arraignment as is practicable or, in a civil case, 60 days before the trial. A motion opposing the admissibility of such evidence must be made by the opposing party and determined by the court before trial. A party’s failure to file such a motion before trial constitutes a waiver of objection to the evidence, but the court for good cause shown may grant relief from the waiver.
(7) ABSENCE OF ENTRY IN RECORDS OF REGULARLY CONDUCTED ACTIVITY. — Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, of a regularly conducted activity to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances show lack of trustworthiness.
(8) PUBLIC RECORDS AND REPORTS. — Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354 .
(9) RECORDS OF VITAL STATISTICS. — Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if a report was made to a public office pursuant to requirements of law. However, nothing in this section shall be construed to make admissible any other marriage of any party to any cause of action except for the purpose of impeachment as set forth in s. 90.610 .
(10) ABSENCE OF PUBLIC RECORD OR ENTRY. — Evidence, in the form of a certification in accord with s. 90.902 , or in the form of testimony, that diligent search failed to disclose a record, report, statement, or data compilation or entry, when offered to prove the absence of the record, report, statement, or data compilation or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation would regularly have been made and preserved by a public office and agency.
(11) RECORDS OF RELIGIOUS ORGANIZATIONS. — Statements of births, marriages, divorces, deaths, parentage, ancestry, relationship by blood or marriage, or other similar facts of personal or family history contained in a regularly kept record of a religious organization.
(12) MARRIAGE, BAPTISMAL, AND SIMILAR CERTIFICATES. — Statements of facts contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, when such statement was certified by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and when such certificate purports to have been issued at the time of the act or within a reasonable time thereafter.
(13) FAMILY RECORDS. — Statements of fact concerning personal or family history in family Bibles, charts, engravings in rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY. — The record of a document purporting to establish or affect an interest in property, as proof of the contents of the original recorded or filed document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording or filing of the document in the office.
(15) STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY. — A statement contained in a document purporting to establish or affect an interest in property, if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) STATEMENTS IN ANCIENT DOCUMENTS. — Statements in a document in existence 20 years or more, the authenticity of which is established.
(17) MARKET REPORTS, COMMERCIAL PUBLICATIONS. — Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations if, in the opinion of the court, the sources of information and method of preparation were such as to justify their admission.
(18) ADMISSIONS. — A statement that is offered against a party and is:
(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or
(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.
(19) REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY. — Evidence of reputation:
(a) Among members of a person’s family by blood, adoption, or marriage;
(b) Among a person’s associates; or
(c) In the community, concerning a person’s birth, adoption, marriage, divorce, death, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
(20) REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY. — Evidence of reputation:
(a) In a community, arising before the controversy about the boundaries of, or customs affecting lands in, the community.
(b) About events of general history which are important to the community, state, or nation where located.
(21) REPUTATION AS TO CHARACTER. — Evidence of reputation of a person’s character among associates or in the community.
(22) FORMER TESTIMONY. — Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403 .
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD VICTIM. —
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 17 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and 2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804 (1).
(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
(24) HEARSAY EXCEPTION; STATEMENT OF ELDERLY PERSON OR DISABLED ADULT. —
(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by an elderly person or disabled adult, as defined in s. 825.101 , describing any act of abuse or neglect, any act of exploitation, the offense of battery or aggravated battery or assault or aggravated assault or sexual battery, or any other violent act on the declarant elderly person or disabled adult, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if: 1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the elderly person or disabled adult, the nature and duration of the abuse or offense, the relationship of the victim to the offender, the reliability of the assertion, the reliability of the elderly person or disabled adult, and any other factor deemed appropriate; and 2. The elderly person or disabled adult is unavailable as a witness, provided that there is corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the elderly person’s or disabled adult’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional, mental, or physical harm, in addition to findings pursuant to s. 90.804 (1).
(b) In a criminal action, the defendant shall be notified no later than 10 days before the trial that a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the content of the elderly person’s or disabled adult’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
§ 90.804. Hearsay exceptions; declarant unavailable.
In plain English. This rule lets certain out-of-court statements come into evidence, but only when the person who said them cannot testify, such as when they have died, are too ill, invoke a privilege, cannot remember the subject, refuse to testify despite a court order, or cannot be found. It covers former testimony, dying declarations, statements against the speaker’s own interest (including statements that hurt the speaker financially or expose the speaker to liability), and family-history statements.
What it means for your defense
Section 90.804 controls when the State can use a witness’s words against you without that witness ever taking the stand. The witness must first be truly unavailable, meaning dead, too ill, protected by privilege, suffering a genuine lack of memory of the subject, refusing to testify despite a court order, or impossible to locate after a real effort. Only then can certain statements come in: prior testimony, a dying declaration, a statement against the speaker’s own interest, or a family-history statement. This matters to your defense because each exception has strict requirements, and the State must satisfy every one. Also, the rule cuts both ways. This is so because the same statute lets you introduce a third party’s confession that points away from you, provided corroborating circumstances show it is trustworthy. Your lawyer’s job is to test whether the witness is genuinely unavailable and whether the statement actually fits an exception. Unavailability is not a formality.
One caution: A statement that exposes someone else to criminal liability and is offered to clear the accused is inadmissible unless corroborating circumstances show it is trustworthy, so a bare third-party confession, standing alone, will not get in.
Leading Florida authority
- Bearden v. State, 161 So. 3d 1257 (Fla. 2015) — Addresses a third party’s statement against penal interest offered to exculpate the accused under section 90.804(2)(c), and holds, on the Chambers due-process line, that excluding a sufficiently corroborated, exculpatory third-party confession can violate the defendant’s right to due process.
- Davis v. State, 207 So. 3d 142 (Fla. 2016) — Florida Supreme Court held that a victim’s dying declaration admitted under section 90.804(2)(b) did not violate the defendant’s Confrontation Clause rights, concluding the dying-declaration exception survives Crawford v. Washington as historically rooted.
Full statutory text of § 90.804
(1) DEFINITION OF UNAVAILABILITY. — “Unavailability as a witness” means that the declarant:
(a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement;
(b) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so;
(c) Has suffered a lack of memory of the subject matter of his or her statement so as to destroy the declarant’s effectiveness as a witness during the trial;
(d) Is unable to be present or to testify at the hearing because of death or because of then-existing physical or mental illness or infirmity; or
(e) Is absent from the hearing, and the proponent of a statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means. However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.
(2) HEARSAY EXCEPTIONS. — The following are not excluded under s. 90.802 , provided that the declarant is unavailable as a witness:
(a) Former testimony. — Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony 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 that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding 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 render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.
(d) Statement of personal or family history. — A statement concerning the declarant’s own birth, adoption, marriage, divorce, parentage, ancestry, or other similar fact of personal or family history, including relationship by blood, adoption, or marriage, even though the declarant had no means of acquiring personal knowledge of the matter stated.
(e) Statement by deceased or ill declarant similar to one previously admitted. — In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph
(1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.
(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 as a witness, and did so intending that result.
§ 90.502. Lawyer-client privilege.
In plain English. This rule gives you, the client, the power to keep your private conversations with your lawyer secret. What you tell your attorney to get legal help is confidential, and you can refuse to disclose it and stop your lawyer, and others who learned it because it was shared while your lawyer was providing legal services, from disclosing it.
What it means for your defense
When you hire a lawyer, the things you say to get legal help are yours, and you decide whether anyone ever hears them. Section 90.502 gives you a privilege to refuse to disclose your confidential communications and to prevent your lawyer, and anyone who learned of them because they were made while legal services were being provided to you, from disclosing them. This is so because the law wants you to speak openly with your attorney without fear that your own words will be used against you. Tell us everything, including the parts that worry you. We cannot do our best work around facts you hold back. Also, this privilege is yours, not ours. It belongs to you, and we assert it on your behalf, never against your interests. The protection applies whether your matter is civil or criminal, and it survives even after your case ends. Speak freely, and let us carry the legal weight.
One caution: The privilege does not protect communications when your lawyer’s services were sought or obtained to enable or aid anyone to commit or plan what you knew was a crime or fraud. In other words, this shield covers getting legal help, not using a lawyer to further an ongoing or future crime or fraud.
Leading Florida authority
- Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994) — The Florida Supreme Court set the framework for the lawyer-client privilege under section 90.502 and held that the burden of establishing the privilege rests on the party claiming it, requiring confidential communications made to obtain legal services (and, in the corporate context, subjecting the claim to heightened scrutiny).
- American Tobacco Co. v. State, 697 So. 2d 1249 (Fla. 4th DCA 1997) — Applies the crime-fraud exception in section 90.502(4)(a): the privilege does not shield communications when a lawyer’s services were sought to enable or aid the commission or planning of a crime or fraud, and addresses the in camera procedure for evaluating such a challenge.
Full statutory text of § 90.502
client privilege. —
(1) For purposes of this section:
(a) A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
(b) A “client” is any person, public officer, corporation, association, or other organization or entity, either public or private, who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer.
(c) A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than: 1. Those to whom disclosure is in furtherance of the rendition of legal services to the client. 2. Those reasonably necessary for the transmission of the communication.
(2) A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
(3) The privilege may be claimed by:
(a) The client.
(b) A guardian or conservator of the client.
(c) The personal representative of a deceased client.
(d) A successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence.
(e) The lawyer, but only on behalf of the client. The lawyer’s authority to claim the privilege is presumed in the absence of contrary evidence.
(4) There is no lawyer-client privilege under this section when:
(a) The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud.
(b) A communication is relevant to an issue between parties who claim through the same deceased client.
(c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.
(d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.
(e) A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.
(5) Communications made by a person who seeks or receives services from the Department of Revenue under the child support enforcement program to the attorney representing the department shall be confidential and privileged as provided for in this section. Such communications shall not be disclosed to anyone other than the agency except as provided for in this section. Such disclosures shall be protected as if there were an attorney-client relationship between the attorney for the agency and the person who seeks services from the department.
(6) A discussion or activity that is not a meeting for purposes of s. 286.011 shall not be construed to waive the attorney-client privilege established in this section. This shall not be construed to constitute an exemption to either s. 119.07 or s. 286.011 .
§ 90.503. Psychotherapist-patient privilege.
In plain English. Florida law lets you keep private what you tell a mental-health professional during treatment. The privilege reaches a broad set of providers, including physicians and psychiatrists, psychologists, clinical social workers, marriage and family therapists, mental-health counselors, qualifying treatment-facility personnel, and certain advanced practice registered nurses. You can refuse to disclose those confidential communications and records, and you can prevent any other person from disclosing them too. The privilege covers any diagnosis made and any advice given in the course of treatment, and only a few narrow legal exceptions remove it.
What it means for your defense
If you sought help for a mental or emotional condition, including alcoholism or drug addiction, what you told your therapist belongs to you. You can refuse to disclose those confidential communications and records, and you can prevent any other person from disclosing them. This is so because section 90.503(2) hands the privilege to the patient, not the provider, and it reaches every diagnosis made and every piece of advice given in the course of treatment. Also, having other people in the room does not automatically break confidentiality. This is so because the statute protects communications shared with those present to further your interest in the consultation, those necessary to transmit the communication, and those helping carry out your diagnosis and treatment under the psychotherapist’s direction. The protection holds unless one of the statute’s narrow exceptions applies. So before your records ever reach a courtroom, that privilege has to be confronted and respected.
One caution: The privilege does not apply in three situations set out in section 90.503(4). It drops when you put your own mental or emotional condition in issue as an element of your claim or defense, such as raising an insanity defense, under section 90.503(4)(c). It also does not apply to communications made in a court-ordered examination of your mental or emotional condition under section 90.503(4)(b), or to communications relevant to a proceeding to compel your hospitalization for mental illness when your psychotherapist has reasonable cause to believe you need hospitalization under section 90.503(4)(a).
Leading Florida authority
- State v. Famiglietti, 817 So. 2d 901 (Fla. 3d DCA 2002) — Confirms the psychotherapist-patient privilege is qualified only by the statutory exceptions in section 90.503; a criminal defendant cannot pierce a victim’s protected psychotherapy records, even on a showing that they may contain material information, because no constitutional provision authorizes an intrusion into communications the statute protects. The holding remains good law and was reaffirmed in Traffanstead v. State (Fla. 1st DCA 2019).
- Critchlow v. Critchlow, 347 So. 2d 453 (Fla. 3d DCA 1977) — Illustrates the ‘shield and sword’ patient-litigant principle that the Evidence Code later codified in section 90.503(4)(c): a party who affirmatively places his or her own mental or emotional condition in issue cannot then invoke the privilege to withhold communications relevant to that condition. (Decided before the Code’s privilege provisions took effect on July 1, 1979, so it states the principle the statute now embodies rather than applying the subsection itself.)
Full statutory text of § 90.503
patient privilege. —
(1) For purposes of this section:
(a) A “psychotherapist” is: 1. A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; 2. A person licensed or certified as a psychologist under the laws of any state or nation, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; 3. A person licensed or certified as a clinical social worker, marriage and family therapist, or mental health counselor under the laws of this state, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; 4. Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Families pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907 (1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction; or 5. An advanced practice registered nurse licensed under s. 464.012 , whose primary scope of practice is the diagnosis or treatment of mental or emotional conditions, including chemical abuse, and limited only to actions performed in accordance with part I of chapter 464.
(b) A “patient” is a person who consults, or is interviewed by, a psychotherapist for purposes of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction.
(c) A communication between psychotherapist and patient is “confidential” if it is not intended to be disclosed to third persons other than: 1. Those persons present to further the interest of the patient in the consultation, examination, or interview. 2. Those persons necessary for the transmission of the communication. 3. Those persons who are participating in the diagnosis and treatment under the direction of the psychotherapist.
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
(3) The privilege may be claimed by:
(a) The patient or the patient’s attorney on the patient’s behalf.
(b) A guardian or conservator of the patient.
(c) The personal representative of a deceased patient.
(d) The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.
(4) There is no privilege under this section:
(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.
Complete Index of the Florida Evidence Code
1. General Provisions (§§ 90.101–90.108)
2. Judicial Notice (§§ 90.201–90.207)
- § 90.201 Matters which must be judicially noticed.
- § 90.202 Matters which may be judicially noticed.
- § 90.203 Compulsory judicial notice upon request.
- § 90.2035 Judicial notice of information taken from web mapping services, global satellite imaging sites, or Internet mapping tools.
- § 90.204 Determination of propriety of judicial notice and nature of matter noticed.
- § 90.205 Denial of a request for judicial notice.
- § 90.206 Instructing jury on judicial notice.
- § 90.207 Judicial notice by trial court in subsequent proceedings.
3. Presumptions and Burden of Proof (§§ 90.301–90.304)
4. Relevancy and Its Limits (§§ 90.401–90.410)
- § 90.401 Definition of relevant evidence. explained above
- § 90.402 Admissibility of relevant evidence.
- § 90.4025 Admissibility of paternity determination in certain criminal prosecutions.
- § 90.4026 Statements expressing sympathy; admissibility; definitions.
- § 90.403 Exclusion on grounds of prejudice or confusion. explained above
- § 90.404 Character evidence; when admissible. explained above
- § 90.405 Methods of proving character. explained above
- § 90.406 Routine practice.
- § 90.407 Subsequent remedial measures.
- § 90.408 Compromise and offers to compromise.
- § 90.409 Payment of medical and similar expenses.
- § 90.410 Offer to plead guilty; nolo contendere; withdrawn pleas of guilty.
5. Privileges (§§ 90.501–90.510)
- § 90.501 Privileges recognized only as provided.
- § 90.5015 Journalist’s privilege.
- § 90.502 Lawyer-client privilege. explained above
- § 90.5021 Fiduciary lawyer-client privilege.
- § 90.503 Psychotherapist-patient privilege. explained above
- § 90.5035 Sexual assault counselor-victim privilege.
- § 90.5036 Domestic violence advocate-victim privilege.
- § 90.5037 Human trafficking victim advocate-victim privilege.
- § 90.504 Husband-wife privilege.
- § 90.505 Privilege with respect to communications to clergy.
- § 90.5055 Accountant-client privilege.
- § 90.506 Privilege with respect to trade secrets.
- § 90.507 Waiver of privilege by voluntary disclosure.
- § 90.508 Privileged matter disclosed under compulsion or without opportunity to claim privilege.
- § 90.509 Application of privileged communication.
- § 90.510 Privileged communication necessary to adverse party.
6. Witnesses (§§ 90.601–90.616)
- § 90.601 General rule of competency.
- § 90.603 Disqualification of witness.
- § 90.604 Lack of personal knowledge.
- § 90.605 Oath or affirmation of witness.
- § 90.606 Interpreters and translators.
- § 90.6063 Interpreter services for deaf persons.
- § 90.607 Competency of certain persons as witnesses.
- § 90.608 Who may impeach. explained above
- § 90.609 Character of witness as impeachment.
- § 90.610 Conviction of certain crimes as impeachment. explained above
- § 90.611 Religious beliefs or opinions.
- § 90.612 Mode and order of interrogation and presentation.
- § 90.613 Refreshing the memory of a witness.
- § 90.614 Prior statements of witnesses.
- § 90.615 Calling witnesses by the court.
- § 90.616 Exclusion of witnesses.
7. Opinion and Expert Testimony (§§ 90.701–90.706)
- § 90.701 Opinion testimony of lay witnesses. explained above
- § 90.702 Testimony by experts. explained above
- § 90.703 Opinion on ultimate issue.
- § 90.704 Basis of opinion testimony by experts. explained above
- § 90.705 Disclosure of facts or data underlying expert opinion.
- § 90.706 Authoritativeness of literature for use in cross-examination.
8. Hearsay (§§ 90.801–90.806)
- § 90.801 Hearsay; definitions; exceptions. explained above
- § 90.802 Hearsay rule. explained above
- § 90.803 Hearsay exceptions; availability of declarant immaterial. explained above
- § 90.804 Hearsay exceptions; declarant unavailable. explained above
- § 90.805 Hearsay within hearsay.
- § 90.806 Attacking and supporting credibility of declarant.
9. Authentication and Identification (§§ 90.901–90.903)
10. Contents of Writings, Recordings, and Photographs (Best Evidence) (§§ 90.951–90.958)