Florida Rules of Evidence: Hearsay, Privileges & Daubert

The Florida Rules of Evidence are contained in Chapter 90 of the Florida Statutes, known as the Florida Evidence Code. The Code governs what information reaches a judge or jury in every civil and criminal case tried in the state’s courts, setting the tests for relevance, the treatment of hearsay, the scope of privileges, the standards for expert opinions, and the procedures for authenticating documents.¹ Evidence that fails any of these tests never reaches the factfinder, no matter how important it may seem to the party offering it.

The Relevance Threshold

Every piece of evidence has to clear the same starting gate. Section 90.401 defines relevant evidence as anything that tends to prove or disprove a material fact in the case.² The bar is deliberately low. A photo, a document, or a witness’s account does not need to be conclusive; it just needs to move the needle on something that actually matters to the dispute.

Section 90.402 then sets the default: all relevant evidence is admissible unless a specific law says otherwise.³ The “unless otherwise provided” language does a lot of work. Hearsay rules, privileges, and character-evidence restrictions all carve out categories where relevant evidence still gets excluded.

Section 90.403 gives judges the power to exclude evidence whose value is outweighed by its costs. Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless repetition.⁴ The word “substantially” matters. A judge cannot exclude evidence merely because it hurts one side. Virtually all evidence hurts one side. The prejudice has to clearly outweigh the value before exclusion is warranted.

Character Evidence and Prior Acts

Florida follows the general rule that a person’s character cannot be used to prove they acted a certain way on a particular occasion. Section 90.404(1) makes character evidence inadmissible for that purpose, subject to narrow exceptions.⁵ A criminal defendant may open the door by introducing a relevant character trait, and the prosecution can then rebut it. In a homicide case, the prosecution can offer evidence of a victim’s peacefulness to counter a claim that the victim was the aggressor.

The more frequently litigated provision is Section 90.404(2), covering evidence of other crimes, wrongs, or acts. Such evidence is admissible when it proves something specific: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. It is inadmissible when the only purpose is to show bad character or a propensity to commit crimes.⁵ The line between the two can be razor-thin.

Florida allows broader use of prior-acts evidence in prosecutions for child molestation and sexual offenses. Evidence of the defendant’s other acts of child molestation or sexual offenses is admissible and may be considered for any relevant purpose, not just the limited list that applies to other crimes.⁵ The state must give the defendant written notice at least 10 days before trial when it plans to introduce any prior-acts evidence.

When character evidence is admissible, Section 90.405 limits how it can be proved. A party may generally offer reputation testimony. Proof of specific instances of conduct is allowed only when character is an essential element of the charge, claim, or defense.⁶

Hearsay

Under Section 90.801, hearsay is a statement made outside the current trial or hearing that is offered to prove the truth of what the statement asserts.⁷ The purpose of the statement controls. If a witness quotes what someone said on the phone to show that what was said is true, that is hearsay. If the same quote is offered only to show that a phone call happened, it is not.

A “statement” under the Code includes oral and written assertions and nonverbal conduct meant as an assertion, such as nodding yes.⁷ Hearsay is generally inadmissible because the opposing party cannot cross-examine the person who originally spoke.

Statements That Are Not Hearsay

Section 90.801(2) treats three categories of prior statements as non-hearsay when the declarant testifies and is subject to cross-examination: prior inconsistent statements given under oath, prior consistent statements offered to rebut a charge of recent fabrication, and prior identifications of a person made after perceiving them.⁷ A witness who identified the defendant in a lineup shortly after the crime can have that identification admitted as substantive evidence, not just to bolster credibility.

Exceptions That Apply Regardless of Availability

Section 90.803 lists hearsay exceptions that apply whether or not the declarant is available to testify. The most commonly used include:

Spontaneous statement under 90.803(1): a statement describing an event made while the declarant was perceiving it or immediately afterward.
Excited utterance under 90.803(2): a statement about a startling event made while the declarant was still under the stress of excitement caused by it.⁸
State of mind under 90.803(3): a statement of the declarant’s current mental, emotional, or physical condition, such as intent, motive, or pain. It does not cover after-the-fact statements about what the declarant remembered or believed, with a narrow exception for statements about a will.
Medical diagnosis or treatment under 90.803(4): statements made to a healthcare provider for diagnosis or treatment, including descriptions of symptoms and their cause.
Recorded recollection under 90.803(5): a written record made by a witness when a matter was fresh in memory, offered when the witness can no longer recall the details well enough to testify.
Business records under 90.803(6): records of a regularly conducted business activity, made at or near the time of the event by someone with knowledge, kept in the ordinary course of business. Hospital records, corporate emails, and financial ledgers typically come in through this provision.⁸

Section 90.803(23) contains a specific exception for out-of-court statements by child victims with a physical, mental, emotional, or developmental age of 17 or younger, when those statements describe child abuse, neglect, or sexual offenses. The court must hold a hearing outside the jury’s presence and find that the circumstances provide sufficient safeguards of reliability.⁸ The child must testify or be unavailable; if unavailable, there must be other corroborating evidence. In criminal cases, the prosecution must give notice at least 10 days before trial.

Exceptions Requiring an Unavailable Declarant

Section 90.804 covers exceptions that apply only when the declarant is unavailable to testify. Unavailability includes death, illness that prevents attendance, memory loss that destroys effectiveness as a witness, refusal to testify despite a court order, or inability to locate the witness through reasonable efforts.⁹ A declarant does not count as unavailable if the party offering the statement caused the unavailability.

The main exceptions under Section 90.804(2) include:

Former testimony from a prior hearing or deposition, admissible when the opposing party had a chance to examine the witness in that earlier proceeding.
Dying declarations, meaning statements made by someone who reasonably believed death was imminent, concerning the cause or circumstances of what the person believed to be impending death.
Statements against interest, meaning statements so contrary to the declarant’s financial or legal interest that a reasonable person would not have made them unless true. When the statement exposes the declarant to criminal liability and is offered to help the accused, it requires corroborating circumstances showing trustworthiness.⁹

Privileges

Section 90.501 starts from a strict default: no one has a privilege to refuse testimony, withhold information, or prevent someone else from testifying, except where a specific statute, the Code itself, or a constitutional provision creates one.¹⁰ The privileges that do exist reflect a policy judgment that protecting certain relationships outweighs the interest in getting every piece of relevant evidence before the court.

Section 90.502 protects confidential communications between a client and lawyer made during the course of legal representation. A client can refuse to disclose those communications and can prevent anyone else who learned of them through the legal relationship from disclosing them.¹¹ The privilege belongs to the client. Communications lose their protected status if shared with third parties outside the legal relationship, or if made to further a crime or fraud.

Section 90.503 shields confidential communications made for the purpose of diagnosing or treating a patient’s mental or emotional condition, including substance addiction. The privilege covers the patient’s statements and any diagnosis or advice given by the psychotherapist.¹ The patient holds the privilege, but placing mental health at issue in a lawsuit can result in a court finding an implied waiver.

Section 90.504 gives spouses the right to refuse to disclose confidential communications made during the marriage and to prevent others from disclosing them. The privilege survives divorce for communications that took place while the marriage was intact.¹² Only communications intended to be confidential are protected, so conversations held in front of third parties generally do not qualify.

Section 90.505 protects confidential communications made to a member of the clergy acting as a spiritual adviser. “Member of the clergy” includes a priest, rabbi, Christian Science practitioner, or minister of any religious organization, as well as anyone reasonably believed to be one by the person seeking counsel.¹³ The communication must be made privately for spiritual advice and not intended for further disclosure. Either the person or the clergy member can assert the privilege.

Witness Competency and Impeachment

Section 90.601 sets a simple default: every person is competent to be a witness unless a statute says otherwise.¹⁴ Age, mental condition, and prior convictions are not automatic disqualifiers. Those factors go to credibility, which the jury weighs, not competency, which the judge decides.

Every witness must take an oath or affirmation before testifying. Section 90.605 allows a child to testify without the formal oath if the court determines the child understands the duty to tell the truth or not to lie.¹⁵

Section 90.608 allows any party, including the party that called the witness, to attack a witness’s credibility. The methods include showing prior inconsistent statements, demonstrating bias, attacking character for truthfulness, exposing a defect in the ability to observe or remember, and offering contradictory testimony from other witnesses.¹⁶ Florida’s rule that a party can impeach its own witness matters in practice, because it means a party stuck with an uncooperative or inconsistent witness is not defenseless.

Expert Testimony Under Daubert

When a case involves technical, scientific, or specialized knowledge, Section 90.702 allows expert witnesses to offer opinion testimony. The expert must be qualified by knowledge, skill, experience, training, or education, and the testimony must satisfy three requirements: it is based on sufficient facts or data, it is the product of reliable principles and methods, and the expert has applied those methods reliably to the facts of the case.¹⁷

Florida’s path to this standard was contested. The legislature amended Section 90.702 in 2013 to adopt the Daubert standard, replacing the older Frye general-acceptance test. The Florida Supreme Court initially rejected the change in 2017 and declared it unconstitutional in 2018, viewing it as a legislative intrusion into the court’s authority over procedural rules. In May 2019 the court reversed course and adopted Daubert as the governing standard. The current framework mirrors the federal approach under Federal Rule of Evidence 702.

In practice, Daubert gives the trial judge a gatekeeping role. Before expert testimony reaches the jury, the judge evaluates whether the underlying methodology has been tested, whether it has been subjected to peer review, its known error rate, and whether it is generally accepted in the relevant scientific community. That evaluation typically happens at a pretrial hearing where the expert presents findings and the opposing side challenges them.

Authentication and the Original Document Rule

Before any exhibit is admitted, the offering party has to show it is what they claim it to be. Section 90.901 requires enough evidence to support a finding that the item is genuine.¹⁸ For a physical object like a weapon or contract, this usually means testimony from someone who can identify it. For digital evidence like emails or text messages, authentication may require metadata, testimony about how the records were stored, or other circumstantial evidence linking the document to the claimed author.

Florida’s version of the “best evidence rule” appears in Sections 90.951 through 90.955. Section 90.952 requires that when a party wants to prove the contents of a writing, recording, or photograph, the original must be produced.¹⁹ The rule applies when the contents themselves are at issue, not when a witness simply testifies about an event that happens to be documented somewhere.

Duplicates are generally admissible to the same extent as originals under Section 90.953, with three exceptions: when the document is a negotiable instrument or similar writing that represents a right to payment, when a genuine question arises about the original’s authenticity, or when admitting the duplicate would be unfair.²⁰ For computer-stored data, any printout or output that accurately reflects the data qualifies as an original, which lets the rule adapt to modern digital records.

When an original is unavailable, Section 90.954 allows other evidence of its contents if the originals were lost or destroyed without bad faith, cannot be obtained through judicial process in Florida, were in the opposing party’s control after notice, or relate to a non-controlling issue.²¹

Categorical Exclusions for Policy Reasons

Some evidence is excluded regardless of how relevant it is, because admitting it would discourage socially useful conduct.

Section 90.407 bars evidence of repairs, safety improvements, or other corrective measures taken after an injury-causing event, when offered to prove negligence, product defect, or culpable conduct. The rationale is that companies or individuals would delay making things safer if fixing a hazard could be used against them in court.²² The same evidence can come in for other purposes, such as proving ownership, control, or the feasibility of a precautionary measure, if those points are disputed.

Section 90.408 makes evidence of settlement offers and any statements made during compromise negotiations inadmissible to prove liability or the value of a claim.²³ The protection only applies when the claim was disputed as to validity or amount. Statements made before any dispute has crystallized may not be protected.

Judicial Notice

Some facts are accepted without proof. Under Section 90.201, Florida courts must take judicial notice of decisional law, constitutional law, public statutory law, Florida legislative resolutions, acts of Congress, and applicable court rules.²⁴ When a party requests judicial notice and supplies the necessary information, the court has no discretion to refuse. A court can also take judicial notice on its own. The practical effect is that no one has to “prove” what a Florida statute says by calling a witness or introducing the text as an exhibit; the court simply recognizes the law as established.

1
Florida Senate. Florida Code Chapter 90 – Evidence Code
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Florida Senate. Florida Code 90.401 – Definition of Relevant Evidence
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Florida House of Representatives. Florida Code 90.402 – Admissibility of Relevant Evidence
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Florida Senate. Florida Code 90.403 – Exclusion on Grounds of Prejudice or Confusion
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Florida Senate. Florida Code 90.404 – Character Evidence; When Admissible
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Online Sunshine. Florida Code 90.405 – Methods of Proving Character
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Florida Senate. Florida Code 90.801 – Hearsay; Definitions; Exceptions
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Online Sunshine. Florida Code 90.803 – Hearsay Exceptions; Availability of Declarant Immaterial
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Online Sunshine. Florida Code 90.804 – Hearsay Exceptions; Declarant Unavailable
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Online Sunshine. Florida Code 90.501 – Privileges Recognized Only as Provided
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Florida Senate. Florida Code 90.502 – Lawyer-Client Privilege
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Florida Senate. Florida Code 90.504 – Husband-Wife Privilege
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Online Sunshine. Florida Code 90.505 – Privilege With Respect to Communications to Clergy
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Florida Senate. Florida Code 90.601 – General Rule of Competency
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Online Sunshine. Florida Code 90.605 – Oath or Affirmation of Witness
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Florida Senate. Florida Code 90.608 – Who May Impeach
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Florida Senate. Florida Code 90.702 – Testimony by Experts
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Florida Public Law. Florida Code 90.901 – Requirement of Authentication or Identification
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Online Sunshine. Florida Code 90.952 – Requirement of Originals
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Online Sunshine. Florida Code 90.953 – Admissibility of Duplicates
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Online Sunshine. Florida Code 90.954 – Admissibility of Other Evidence of Contents
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Online Sunshine. Florida Code 90.407 – Subsequent Remedial Measures
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Justia Law. Florida Code 90.408 – Compromise and Offers to Compromise
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Online Sunshine. Florida Code 90.201 – Matters Which Must Be Judicially Noticed