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Attack outline

Florida Evidence Trip-Wires

Review the Florida Evidence Trip-Wires with ordered issue-spotting steps and Florida flags where relevant before you jump back into practice.

SubjectEvidenceLast reviewedMarch 12, 2026JurisdictionFlorida-aware

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Ordered attack steps

Step 1. No general spousal testimonial privilege
  • Florida does NOT recognize a general spousal immunity / testimonial privilege
  • Only § 90.504 confidential MARITAL COMMUNICATIONS privilege exists — covers private statements made during the marriage; survives divorce; either spouse may invoke
  • Common trap: a spouse may be compelled to testify about observations or non-confidential interactions, but a private marital conversation remains protected
Step 2. Prior inconsistent under oath is SUBSTANTIVE
  • § 90.801(2)(a) — prior inconsistent statement is substantive (not hearsay) when given under oath subject to perjury at a trial, hearing, other proceeding, or in a deposition
  • Florida courts have read the oath/perjury trigger broadly; check whether the prior statement was sworn even outside a formal proceeding
Step 3. Dying declaration in ALL criminal cases
  • § 90.804(2)(b) — admissible in ANY criminal case + civil cases
  • Federal FRE 804(b)(2) limit to homicide prosecutions + civil cases does NOT apply in Florida state court
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Step 4. Daubert under § 90.702 (2019)
  • Legislature amended § 90.702 to adopt the federal Daubert standard in 2013; the Florida Supreme Court reaffirmed adoption as a procedural rule in 2019 (In re Amendments to the Florida Evidence Code)
  • No more Frye pure-opinion carve-out — judge is the gatekeeper as in federal court
Step 5. Child victim hearsay — § 90.803(23)
  • Statement by a child victim with a physical, mental, emotional, or developmental age of 17 OR LESS describing child abuse, neglect, sexual abuse, child-abuse offenses, or unlawful sexual acts performed in the presence of, with, by, or on the declarant child
  • Two prongs: (a) judicial reliability hearing (time, content, circumstances), and (b) child testifies OR is unavailable + corroboration
  • Findings on the record
  • NO direct federal equivalent — federal courts fall back on the residual exception (FRE 807)
Step 6. No Dead Man's Statute in current Chapter 90
  • Florida no longer has a Dead Man's Statute in Chapter 90
  • Interested parties are competent to testify if otherwise qualified; analyze ordinary competency, hearsay, relevance, privilege
  • Common trap: do not exclude estate testimony just because the witness is interested
Step 7. Williams Rule — § 90.404(2)
  • Florida's version of FRE 404(b) — same MIMIC purposes (motive, intent, mistake, identity, common plan)
  • 10-DAY WRITTEN NOTICE before trial (absent good cause)
  • Broader admissibility in child-molestation and domestic-violence cases under § 90.404(2)(b)-(c)
  • Heightened factual-similarity threshold under Florida case law
Step 8. Confrontation Clause overlay — FL state courts
  • Florida follows Crawford / Davis / Melendez-Diaz / Bullcoming
  • A § 90.803(6) business-record or § 90.803(8) public-record foundation does NOT override the Confrontation Clause requirement to produce the testing analyst for a forensic certificate
  • Forfeiture by wrongdoing under § 90.804(2)(f) defeats both hearsay and Confrontation Clause objections if the Giles intent requirement is met