Florida Criminal Law: Understanding the Concept of Hearsay

In  court proceedings, hearsay is a statement made out- of- court  coming in for the truth of the matter asserted. In essence, it is a  statement elicited of  a witness where the witness is repeating what she or he was told by someone else. So a hearsay statement  is often prefaced by the courtroom witness testifying,  “He told me…” or “She said to me that….”
Hearsay, which might include  oral testimony and sometimes  written documents, is not typically admissible as evidence for three reasons:

  • The person who originally made the statement is not present to state his or her exact words  leaving room for misinterpretation
  • The judge and /or jury cannot see the person to assess the demeanor and credibility of the witness
  • The attorney for the other side is unable to cross-examine the witness.

There are, however, numerous exceptions to the hearsay rule. Generally speaking, they might  be broken up into three categories of circumstance.
Declarant Available
In certain situations a hearsay statement made by a third party can be admitted into evidence even if the original declarant is available to to testify.

  • Excited utterances:  A statement motivated by stress is generally admissible, provided the witness actually heard the person say it. Examples include “You shot me!” and “That man grabbed my purse!”
  • Present sense impressions: Testimony about what a person was experiencing the moment they said something can be admissible as hearsay. For example, Joe can take the stand to testify that he heard Jane say, “I’m so upset because it’s raining.”
  • Statements made for medical treatment: Statements such as “I can’t feel my arms” or “I vomited up blood” are admissible based on the premise that people will be truthful when their health is at stake.
  • Prior inconsistent statements: Florida allows the pre-trial statement of a declarant to be used at a trial if the prior statement conflicts with their trial testimony.

Declarant Unavailable
Certain hearsay statements may be admitted only if the person who originally made the declaration is unable to testify.

  • Dying declarations: Statements made by a person who is dying or believes they are dying can be admissible.
  • Declaration against interest:  A statement that could potentially put the original declarant at a disadvantage may be admissible as hearsay, because the assumption is that he or she would not say it unless it were true. An example could be “I was texting- I didn’t even see her step into the street.”
  • Forfeiture by wrongdoing: If a witness is unavailable to testify at trial because the opposing party intentionally prevented the witness from being available, their original statement may be admitted even though it’s  hearsay.

In addition to the exceptions listed above, a hearsay statement may still be admitted at trial if it meets the following criteria:

  • It has been guaranteed as trustworthy
  • The opposing side was informed in advance of the intention to admit it
  • It has been offered to provide a material fact
  • Allowing it as evidence would “forward the cause of justice”

If you or a loved one are facing criminal charges in Florida, it is critical that you retain a skilled and experienced defense attorney who will actively defend your rights and protect your interests. Contact the law firm of Weisberg Kainen Mark today to learn how we can help!

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Weisberg Kainen Mark, PL

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