CopyCited 585 times | Published | Supreme Court of Florida | 2002 WL 500315
...nation concerning that statement; and the statement is offered to `rebut an express or implied charge ... of improper influence, motive, or recent fabrication.'" Id. at 197-98 (quoting Rodriguez v. State, 609 *
810 So.2d 493, 499 (Fla.1992)) (quoting section
90.801(2)(b), Florida Statutes (1989))....
CopyCited 297 times | Published | Supreme Court of Florida | 1998 WL 114500
...d them he killed the officer. The trial court treated this testimony as prior inconsistent statements of Schofield and considered it as impeachment evidence, rather than substantive evidence of Schofield's culpability. See §§
90.608(1),
90.614(1),
90.801(1)(c),
90.802, Fla....
...[10] Additionally, as previously discussed, Schofield testified only at the most recent hearing and not at any prior proceedings. Thus, there was no prior testimony from Schofield that could be considered "[i]nconsistent with the declarant's testimony" and admissible as non-hearsay substantive evidence under section 90.801(2)(a), Florida Statutes (1997)....
CopyCited 201 times | Published | Supreme Court of Florida | 2000 WL 373757
...ere given a life sentence. (3) The trial court did not err in admitting Thompson's prior testimony during Surace's trial, in which Thompson testified he was responsible for the murder. This statement was prior inconsistent testimony admissible under section 90.801(2)(a), Florida Statutes (1987).(4) Although the trial court erred in admitting autopsy photos, the error was harmless in light of the testimony of the eyewitness, the medical examiner, Thompson himself, and the other photographs....
CopyCited 154 times | Published | Supreme Court of Florida | 2005 WL 168510
...The initial question is whether the proposed testimony constitutes hearsay at all. Hearsay is defined as "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." § 90.801(1)(c), Fla....
CopyCited 146 times | Published | Supreme Court of Florida
...hysical abuse, never reported Breedlove's statements regarding the beating and later coercion on the 21st, and never investigated Breedlove's claims. [7] We note that ch. 81-93, Laws of Fla., slightly modified the definition of hearsay as set out in § 90.801(1)(c), Fla....
CopyCited 126 times | Published | Supreme Court of Florida | 1990 WL 252114
...Estes made one of her prior statements under oath to a prosecutor and a *314 deputy sheriff in the presence of a court reporter. The state introduced that evidence not only to impeach but also as substantive evidence given during an "other proceeding" within the meaning of section 90.801(2)(a) of the Florida Statutes (1985)....
...he jury to consider the statement as substantive evidence to prove the truth of the matter asserted. The state cites Diamond v. State,
436 So.2d 364 (Fla. 3d DCA 1983), arguing that the trial court properly applied the statute to admit the evidence. Section
90.801(2)(a) allows a prior inconsistent statement to be admitted as substantive evidence to prove the truth of the matter asserted when it meets the narrow criteria of the statute, provided that the declarant testifies at trial. Moore v. State,
452 So.2d 559 (Fla. 1984). In Delgado-Santos, we established a bright-line rule that a law enforcement investigative interrogation conducted by the police, even if under oath, is not an "other proceeding" pursuant to section
90.801(2)(a). Accord Dudley v. State,
545 So.2d 857, 859 (Fla. 1989); Kirkland v. State,
509 So.2d 1105 (Fla. 1987). This Court adopted as its own the three-part rationale of the district court's opinion in Delgado-Santos, concluding that section
90.801(2)(a) was intended to be a very narrow provision....
...bility of the process in question." Id. Based on this rationale, and supported by the "overwhelming weight of authority," id. at 78, the Court concluded that a police investigative interrogation cannot qualify as a "proceeding" within the meaning of section 90.801(2)(a). [I]t seems obvious to us on the face of it that no process of police questioning much less one of the kind involved here can qualify as a 90.801(2)(a) "proceeding." Investigative interrogation is neither regulated nor regularized; it contains none of the safeguards involved in an appearance before a grand jury and does not otherwise even remotely resemble that process; and it has no qu...
...he accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement."); Maugeri v. State,
460 So.2d 975 (Fla. 3d DCA 1984) [, dismissed,
469 So.2d 749 (Fla. 1985)]. In the absence of such a provision in [section]
90.801(2)(a), the Robinson-Smith rationale, rendering a "reliable" statement admissible although there would otherwise be no "proceeding," would amount to the enactment of a catch-all or umbrella exception for the admission of trustworthy hearsay which does not fall within any of the specific exceptions....
...OVERTON, Justice, concurring in part and dissenting in part. I concur with all parts of the opinion except that part holding that testimony given *319 to an assistant state attorney under oath before a court reporter was not admissible as substantive evidence under section 90.801(2), Florida Statutes (1985), because it was not an "other proceeding" under the provisions of that section....
...Although the facts in Dudley seem to be remarkably similar to those in this case, Dudley does not directly control this issue here because it is unclear from the opinion in Dudley exactly why the Court held that the statement failed to satisfy the requirements of section 90.801(2)(a) of the Florida Statutes (1985)....
CopyCited 103 times | Published | Supreme Court of Florida | 2002 WL 432561
...As the State argues, however, defense counsel's question, on its face, attempts to improperly elicit the hearsay statement of a third party. This would be true if the statements of the detective or another police officer were offered to prove the truth of the matter asserted. § 90.801(1)(c) Fla....
CopyCited 98 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 159
...Appellant does not deny that the jury was left with an impression of Sweet's improper motive to fabricate, Van Gallon v. State,
50 So.2d 882 (Fla. 1951), but argues that Sweet's statements as reported by Namia were not sufficiently consistent with Sweet's testimony at trial to be properly admissible under section
90.801(2)(b), Florida Statutes (1983)....
CopyCited 96 times | Published | Supreme Court of Florida | 1997 WL 633729
...ent testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to "rebut an express or implied charge ... of improper influence, motive, or recent fabrication." Rodriguez,
609 So.2d at 500 (quoting section
90.801(2)(b), Florida Statutes (1989))....
...g the suggestion that Mays' 1994 Hard Copy appearance motivated her trial testimony, since Mays testified and was subject to cross-examination, and the statement pre-dated the existence of her motive to fabricate, i.e., the Hard Copy appearance. See § 90.801(2)(b), Fla....
CopyCited 93 times | Published | Court of Appeals for the Eleventh Circuit | 1999 U.S. App. LEXIS 809, 1999 WL 24620
...We quote Trent's out-of-court statement not for the "truth of the matter" that he asserts, but to point out that Trent was not in the main room when Freund stabbed Walker, and that Trent expressed no knowledge to Daniell that Freund was killing him. Fla. Stat. § 90.801 (1)(c) (1998) 10 They called the vice squad officer who had arrested Mills on cocaine trafficking charges....
CopyCited 87 times | Published | Supreme Court of Florida | 2004 WL 1348732
...n jail. The State's purpose in introducing Thibault's conversation with his mother, which *1101 was recorded four days after the murders and presumably before any motive to lie arose, was to rehabilitate Thibault through prior consistent statements. Section 90.801, Florida Statutes (2003), which excludes some prior consistent statements from the definition of hearsay, provides in pertinent part: (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: .......
...onsistent with his trial testimony. Nor does he contest the fact that one of the defense strategies was to argue that Thibault was fabricating Chamberlain's role in the murders. Chamberlain's sole argument against the admissibility of the tape under section 90.801(2)(b) is that Thibault's motive to lie arose before the conversation with his mother....
CopyCited 86 times | Published | Supreme Court of Florida | 2000 WL 123997
...Ray did not testify during the guilt phase of his trial. The only evidence of coercion offered by the defense was Whitney's testimony. [3] That testimony was inadmissible as it violated the rules of evidence. The bulk of Whitney's evidence consisted of inadmissible hearsay. See § 90.801, Fla....
CopyCited 82 times | Published | Supreme Court of Florida | 23 Educ. L. Rep. 406
...[7] The evidentiary ruling was the refusal of the court to allow the defendant to testify concerning statements made to him by his son about the plaintiff's performance. The testimony was excluded on the ground of hearsay. To be hearsay, evidence must be "offered in evidence to prove the truth of the matter asserted." § 90.801, Fla....
CopyCited 77 times | Published | Supreme Court of Florida | 1993 WL 347761
...Jones,
625 So.2d 821 (Fla. 1993), T.F.'s statement to the Child Protection Team was not admissible under the medical diagnosis or treatment exception to the hearsay rule. However, the court below pointed out that the testimony was properly admitted under section
90.801(2)(b), Florida Statutes (1987).
CopyCited 77 times | Published | Supreme Court of Florida | 2001 WL 197024
...stent statement testifies at trial and is subject to cross-examination concerning that statement; and the statement is offered to `rebut an express or implied charge ... of improper influence, motive, or recent fabrication.'" Id. at 197-98; see also § 90.801(2)(b), Fla....
CopyCited 77 times | Published | Supreme Court of Florida | 2002 WL 188359
...Puryear's arrest, testified that Puryear was wearing a burgundy T-shirt, faded black jeans, and white sneakers at the time of his arrest. The jury found Puryear guilty of robbery, as a lesser included offense of robbery with a weapon. [3] Based upon section
90.801(2)(c), Florida Statutes (1999), the Fourth District affirmed *903 en banc the trial court's rulings allowing Cratsenberg and Detective Wardlaw to testify to the description Deese gave of her assailant. See id. at 852. The court also affirmed Puryear's robbery conviction. See id. at 853. In an attempt to discern the proper interpretation of section
90.801(2)(c), the Fourth District reviewed Swafford v. State,
533 So.2d 270, 275-76 (Fla.1988), and Power v. State,
605 So.2d 856, 862 (Fla.1992), and concluded that these two opinions irreconcilably conflicted regarding the proper interpretation of section
90.801(2)(c)....
...nsively cross-examined, the trial court did not err in admitting the victim's out-of-court statements to the detective and her boyfriend." Id. at 852. Concurring specially, Judge Taylor maintained that the court was bound by this Court's most recent section 90.801(2)(c) pronouncement in Power, but she argued that Swafford was the correct interpretation of section 90.801(2)(c). See id. at 853 (Taylor, J., concurring specially). Judge Farmer dissented and argued that the section 90.801(2)(c) statement in Power was dicta and, therefore, Swafford was binding precedent. See id. at 854 (Farmer, J., dissenting). We align ourselves with Judge Farmer's conclusion and hold that Swafford remains controlling precedent on the correct interpretation of section 90.801(2)(c). Puryear argues that this Court decided the issue in Swafford and that the discussion in Power regarding section 90.801(2)(c) was dicta....
...The certified question requires us to examine whether the trial court erred by allowing Cratsenberg and Detective Wardlaw to testify regarding Deese's descriptions of her assailant. The conclusion turns on the discrete issue of whether, pursuant to the nonhearsay exception of section 90.801(2)(c), Florida Statutes (1999), a third party may testify to a declarant's out-of-court description of an assailant where the declarant testifies at trial and is subject to cross-examination....
...At issue in Swafford was a defense claim that the trial court improperly excluded a police officer's testimony about description statements made to the officer by a witness of a possible suspect.
533 So.2d at 275-76. On appeal, Swafford argued that the description testimony was not hearsay under section
90.801(2)(c), Florida Statutes (1985)....
...at 276. [5] In rejecting this *904 argument, we focused on the distinction between "description" and "identification." See id. This Court explained: [A] description is not an identification. An "identification of a person after perceiving him," subsection 90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived. The witness in this case never made an identification of the person he had seen; he only gave a description. This testimony does not meet the definition of "identification" as used in subsection 90.801(2)(c). Id. (citation omitted). Subsequent to our 1988 decision in Swafford, in 1992, we decided Power which also contained a discussion of section 90.801(2)(c)....
...(Deputy Welty testified that Miller "appeared to be a person that had just witnessed an unusual or serious crime, and very shaken."). This Court, however, further stated: "Additionally, the statement regarding the reddish hair was admissible nonhearsay as one of identification of a person made after perceiving him. See §
90.801(2)(c). Frank Miller testified at trial and was clearly subject to cross-examination." Power,
605 So.2d at 862. Without question, this Court's discussion in Swafford concerning section
90.801(2)(c) was essential to its holding. We drew a clear distinction between a description and a statement of identification in Swafford and held that description "testimony does not meet the definition of `identification' as used in subsection
90.801(2)(c)."
533 So.2d at 276. This Court's discussion in Power concerning section
90.801(2)(c), however, was not essential to the holding in Power....
...Admittedly, this Court was not clear in Power that it rested its holding on the excited utterance hearsay exception. A close examination of Power, however, reveals that the excited utterance hearsay exception applied to admit both statements at issue, whereas the section 90.801(2)(c) nonhearsay rule could only be applied to admit the reddish-color hair comment. Despite the equivocal language used by this Court in Power, i.e., "probably admissible" as an excited utterance, the only theory that explains the admission of both statements is the excited utterance theory. Thus, the section 90.801(2)(c) discussion was not necessary and constituted dicta....
...Where this Court's decisions create this type of *906 disharmony within the case law, the district courts may utilize their authority to certify a question of great public importance to grant this Court jurisdiction to settle the law. Contrary to the Fourth District's conclusion, we conclude that section 90.801(2)(c) did not authorize the admission of the testimony of Detective Wardlaw and Cratsenberg regarding Deese's out-of-court descriptive statements....
...Detective Wardlaw also testified without objection that Deese unequivocally identified Puryear as her assailant at the time Puryear was arrested. [3] The record indicates that based upon the State's motion, Puryear displayed his mouth for the jury. [4] Section 90.801(2), Florida Statutes (1999), provides: (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: . . . . (c) One of identification of a person made after perceiving the person. [5] The 1999 version of section 90.801(2)(c) is the same as the 1985 version of this statute, except that the 1999 version contains sex-neutral language....
...lar exception. See State v. Hester,
746 So.2d 95, 108 (La.Ct.App.1999); People v. Sykes, 229 Mich.App. 254, 582 N.W.2d 197, 205 (1998); State v. Jenkins, 168 Wis.2d 175, 483 N.W.2d 262, 267-68 (1992). It does not necessarily follow that this Court's section
90.801(2)(c) discussion in Swafford contained an error in legal analysis on account of the fact that this Court aligned itself with the minority rule....
CopyCited 76 times | Published | Supreme Court of Florida | 2006 WL 560586
...morse (given minimal weight). The trial court accepted the jury's recommendation and sentenced Ibar to death. Ibar raises eight issues in this appeal: (1) whether certain out-of-court statements were "statements of identification" as contemplated by section 90.801(2)(c), Florida Statutes (1995); (2) whether the trial court erred in admitting witness testimony for purpose of impeaching that testimony; (3) whether the trial court erred in admitting the transcript of testimony given by a deceased w...
...as substantive evidence. In addition, Ibar contends that these witnesses as well as Quinones were called as witnesses simply for the purpose of impeachment. The State contends the prior identifications by these witnesses were properly admitted under section 90.801(2)(c), Florida Statutes (1999)....
...lice investigators to testify that these six witnesses had actually confirmed the identity of the person in the photo as Ibar. The investigators' testimonies were not admitted as impeachment, however; they were admitted as substantive evidence under section 90.801(2)(c), Florida Statutes (1999). We agree with the defendant that the prior identifications testified to by the officers should not have been admitted as substantive evidence under section 90.801(2)(c). Section 90.801(2)(c) provides as follows: (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: ....
...erceiving" and is in keeping with the interpretation given to the statute by a number of our district courts of appeal. The Fourth District Court of Appeal in Stanford v. State,
576 So. 2d 737 (Fla. 4th DCA 1991), addressed the meaning and intent of section
90.801(2)(c)....
...In Stanford, the trial court allowed the victim's daughter and another person to testify concerning out-of-court statements the victim made to them which included the victim naming the defendant as her assailant. The trial court allowed these statements as substantive evidence under section 90.801(2)(c), that is, statements of identification made after perceiving a person....
...ed vehicle. On appeal and after determining that the tape recordings did not satisfy the requirements of recorded recollection, the Second District addressed the State's argument that the tape recordings were admissible as substantive evidence under section 90.801(2)(c). In holding that only portions of the statements were admissible as substantive evidence of identification, the Second District quoted with approval a line of cases including Stanford that discussed the admissibility of evidence under section 90.801(2)(c)....
...At trial, the victim was unable to identify the defendant as his assailant. Over objection, the police officer was allowed to testify concerning the prior identification. On appeal the Fourth District affirmed and found the identification admissible under section 90.801(2)(c) as a statement of identification made after perceiving the defendant....
...The court went on to opine that one of the principles applicable to the admission of this type of identification as substantive evidence is the inherent reliability of identifications made shortly after the crime. See also A.E.B. v. State,
818 So. 2d 534 (Fla. 2d DCA 2002) (finding admissible under section
90.801(2)(c) an out-of-court identification made by a witness who saw the juvenile approach the victim's house and go into the backyard); Ferreira v....
...State,
413 So. 2d 414 (Fla. 5th DCA 1982) (finding admissible the victim's out-of-court statement of identification despite the fact that the victim testified at trial that he was mistaken in his prior identification). Without discussing the perimeters of section
90.801(2)(c), this Court in Evans v....
...l offense. As the Stanford court also opined, expansion of the rule could lead to an endless repetition of out-of-court identifications. Although Ian Milman's prior testimony concerning identification was not admissible as substantive evidence under section 90.801(2)(c), it was admissible as substantive evidence under section 90.801(2)(a). Section 90.801(2)(a) provides that an out-of-court statement is not hearsay if the declarant, in this case Milman, testifies at the trial and is subject to cross-examination about the statement....
...2003) (holding that a trial judge's ruling on the admissibility of evidence will not be disturbed on appeal absent an abuse of discretion). We also find that Melissa Munroe's prior identification statement was also admissible as substantive evidence under section 90.801(2)(a)....
...She explained that she just continued to go along with what the police initially wrote in their report. As with Milman, the trial judge deemed Munroe a "turncoat witness." With this finding, the judge allowed Munroe's prior testimony to be admitted for its truth under section 90.801(2)(a)....
...e persons in the photos looked like Ibar and Penalver. Munroe's trial testimony is inconsistent with her prior grand jury testimony. The grand jury testimony is therefore admissible for its substantive value as an exception to the hearsay rule under section 90.801(2)(a)....
...NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. WELLS, J., concurring in part and dissenting in part. I concur in the majority's decision to affirm the convictions and the sentences. However, I write to expressly disagree with the majority's holding that the hearsay exclusion provided in section 90.801(2)(c), Florida Statutes (1999), is limited to statements of identification made by eyewitnesses, including victims, to a crime or event....
...als confirming that Ibar was the man depicted in a photograph made from a surveillance video taken of the crime. These six individuals were acquaintances of Ibar, but they were not eyewitnesses to the crime. The majority restricts the application of section 90.801(2)(c) to eyewitness identifications because doing so "is in keeping with the interpretation given to the statute by a number of our district courts of appeal." Majority op....
...I disagree that the decisions cited by the majority support a limitation on this statutory hearsay exclusion. More importantly, I believe that the plain language of the statute is clearly written to encompass a wide range of identifications, including the identifications at issue in this case. Section 90.801(2)(c) provides that an out-of-court identification by a declarant is excluded from the definition of hearsay if the statement of identification is one "of a person made after perceiving the person." The only requirement of this statuto...
...veillance photograph. [8] The district court cases cited by the majority do not support the majority's decision to limit the scope of this broadly worded statutory exclusion. Although the majority correctly notes that findings of admissibility under section 90.801(2)(c) in Florida case law have all involved eyewitness identifications, it does not logically follow that the statute must be limited only to those kinds of identifications....
...Notably, the majority fails to point to a single decision where an identification by a non-eyewitness was found to fall outside the scope of the exclusion. In fact, it appears to be a question of first impression in Florida whether out-of-court identifications by non-eyewitnesses are admissible under section 90.801(2)(c)....
...le by the Fourth District in Stanford v. State,
576 So. 2d 737 (Fla. 4th DCA 1991). In that decision, the Fourth District Court of Appeal held that the victim's statement naming the individual she believed to be her attacker was not admissible under section
90.801(2)(c)....
...The victim did not view a lineup, photo-array, or surveillance photograph before she gave the defendant's name. She simply named the defendant based on her memory of the attack. Id. at 738-40. This Court has similarly found that an eyewitness statement describing an assailant is not an identification for purposes of section 90.801(2)(c) because a description does not involve "perceiving" the person identified....
...State,
810 So. 2d 901, 903-06 (Fla. 2002); Swafford,
533 So. 2d at 276 ("The witness in this case never made an identification of the person he had seen; he only gave a description. This testimony does not meet the definition of `identification' as used in subsection
90.801(2)(c).")....
...stify that the defendant was the individual in the photo. The Tenth Circuit Court of Appeals held that the statements were admissible as substantive evidence of the assailant's identity under rule 801(d)(1)(C). See id. at 261 & n*. I would interpret section 90.801(2)(c) as the Tenth Circuit interpreted the federal rule in Ingram....
...The majority incorrectly concludes that Ingram conflicts with the views espoused by our district courts. Majority op. at 13. As noted above, our district courts have never addressed whether an out-of-court identification by a non-witness falls within the scope of section 90.801(2)(c)....
...ng individuals is not at issue in this case. The issue is whether the dangers of hearsay are concerning enough in this situation to prevent the admission of identifications which were made out of court. The majority, however, overlooks the fact that section 90.801(2)(c) eliminates the major danger of hearsay by requiring the identifying declarant to testify at trial and be subject to cross-examination concerning the identification statement....
...pport in the statutory language or case law. For these reasons, I disagree with the majority and would find that a statement by a non-eyewitness identifying an assailant in a surveillance photograph is an admissible statement of identification under section 90.801(2)(c)....
...[2] Casmir Sucharski was also known as Butch Casey. [3] This Court in both Puryear v. State,
810 So. 2d 901 (Fla. 2002), and Swafford v. State,
533 So. 2d 270 (Fla. 1998), has clearly said that descriptions are not identifications as contemplated under section
90.801(2)(c)....
...h instruction. [8] This Court has previously held that identifications based on a photograph are within the scope of the hearsay exclusion. Swafford v. State,
533 So. 2d 270, 276 (Fla. 1988) ("An `identification of a person after perceiving him,' subsection
90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived.") (emphasis added)....
CopyCited 76 times | Published | Supreme Court of Florida | 1988 WL 33735
...]: Did she display anything that appeared to you as fear of the Defendant? [VALENTINE]: Yes, in language. Susan Correll's statements, as related by Valentine, were hearsay. In the absence of an applicable exception, hearsay evidence is inadmissible. § 90.801, Fla....
CopyCited 74 times | Published | Supreme Court of Florida | 1993 WL 241044
...At first blush the statement appears to have constituted hearsay as defined in the Evidence Code, which declares that "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. § 90.801(1)(c), Fla....
...Feagle's earlier statement was hearsay and *997 therefore inadmissible in the absence of any other exception to or exclusion from the hearsay rule. Alternatively, the State argues that Feagle's prior statement was excluded from the category of hearsay by operation of paragraph (a) of subsection 90.801(2), Florida Statutes (1989)....
...is: (a) Inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition... . Id. For purposes of the statute, the "declarant" is the person who makes a statement, § 90.801(1)(b), Fla. Stat. (1989); and a "statement" for present purposes is an oral or written assertion. § 90.801(1)(a)1., Fla....
...Day,
789 F.2d 1217 (6th Cir.1986), or sworn statements made to obtain a warrant. Kirkland v. State,
509 So.2d 1105 (Fla. 1987). In Delgado-Santos and again in State v. Smith,
573 So.2d 306 (Fla. 1990), this Court conducted an extensive analysis of the history and purpose of paragraph (a) of subsection
90.801(2), Florida Statutes....
...Moreover, an information-gathering process is not an "other proceeding" within the meaning of the rule unless it has a degree of formality, convention, structure, regularity, and replicability of the process in question. Id. at 314-15 (quoting Delgado-Santos,
471 So.2d at 77). Thus, in Smith we found error under subsection
90.801(2), paragraph (a), where the court admitted into evidence the sworn statement of a witness made to a prosecutor and deputy sheriff in the presence of a court reporter....
...[3] Impeachment's object is to attack the credibility of the witness. Where this genuinely is the predominant purpose of the questioning, then the evidence so introduced is not being admitted "to prove the truth of the matter asserted" but rather to show why the witness is not trustworthy. See § 90.801(1)(c), Fla....
CopyCited 74 times | Published | Court of Appeals for the Eleventh Circuit | 1992 U.S. App. LEXIS 1439, 1992 WL 7453
...han other equivocal statements made by Rhodes and available to the defense. Under Florida rules of evidence, the defense could have entered this report both to impeach the witness and to establish the truth of the matter asserted. See Fla.Stat. Ann. § 90.801(2) (West 1979)....
CopyCited 74 times | Published | Supreme Court of Florida | 1999 WL 215347
...et Woods at the library on the night of the homicide. We disagree. Hearsay is defined as 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." See § 90.801(1)(c), Fla....
CopyCited 66 times | Published | Supreme Court of Florida | 1997 WL 93765
...e 801(d)(1)(A). However, Congress amended rule 801(d)(1)(A) to provide that only prior inconsistent statements given under oath at a hearing, deposition, or formal proceeding could be considered for the truth of their contents. Though not identical, section 90.801(2), Florida Statutes (1993), is substantially similar to rule 801(d)(1)(A)....
CopyCited 66 times | Published | Supreme Court of Florida | 2003 WL 21283161
...g that statement; and the statement is offered to `rebut an express or implied charge ... of improper influence, motive, or recent fabrication.'" See Chandler,
702 So.2d at 197-98 (quoting Rodriguez v. State,
609 So.2d 493, 500 (Fla.1992)); see also §
90.801(2)(b), Fla....
...I concur in the result of the majority in affirming the conviction and sentence. I do not join the opinion. *33 I find that the majority's opinion is in error as to its discussion of the hearsay statements. The majority fails to recognize that the statements under review were not hearsay. Section 90.801(1)(c), Florida Statutes, defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." In Breedlove v....
CopyCited 66 times | Published | Supreme Court of Florida | 1991 WL 165227
...hing was said to this witness." We conclude that the trial court abused its discretion. The only relevance of this out-of-court statement was to prove the truth of the matters asserted by the declarant, Ashe. Therefore, the evidence was hearsay. See § 90.801(1)(c), Fla....
CopyCited 65 times | Published | Florida 1st District Court of Appeal | 2004 WL 2600408
...e statement violates the defendant's Sixth Amendment right to confront the witnesses against him. A Section
90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section
90.801(1)(c) as "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." The parties agree that the statement Officer Gaston attributed to Hector Ruiz was hearsay....
...In that case, a child who had been the victim of sexual abuse recanted the testimony she gave in a discovery deposition. She testified at trial that another man committed the offense. *701 Because the victim testified at trial, her deposition was presented as substantive evidence under section 90.801(2)(a) of the Florida Evidence Code....
CopyCited 64 times | Published | Supreme Court of Florida | 1990 WL 191708
...at he did pursuant to information concerning the defendant, but under no circumstances may he relate the information itself because such is hearsay. However, Collins was decided in 1953, long before Florida's Evidence Code was adopted in 1976. Under section 90.801(1)(c), Florida Statutes (1987), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted....
...matter asserted, would not be considered hearsay [2] and, if relevant to a material fact in issue, would generally be admissible unless its probative value was found to be substantially outweighed by its prejudicial effect. See §§
90.402,
90.403,
90.801(1)(c), Fla....
...f the challenged testimony was offered for a purpose other than to prove the truth of the matter asserted, it was by definition not hearsay. Breedlove v. State,
413 So.2d 1, 6 (Fla.), cert. denied,
459 U.S. 882,
103 S.Ct. 184,
74 L.Ed.2d 149 (1982); §
90.801(1)(c), Fla....
CopyCited 59 times | Published | Supreme Court of Florida | 2006 WL 1381880
...hile the remainder of the interview was inadmissible hearsay. Florida law defines hearsay as "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." § 90.801(1)(c), Fla....
...of the crime were in fact being offered by Reynolds for their truth and nothing to the contrary was argued by the defense at trial. Therefore, the trial court properly found these statements to be hearsay subject to the rule of inadmissibility, see § 90.801(1)(c), Fla....
CopyCited 57 times | Published | Supreme Court of Florida | 1997 WL 561433
...he fact that no homicide or police reports had been written at the time Bays made his statement. Shellito objected, contending that this testimony constituted cumulative, improper bolstering of Bays' testimony. The trial court allowed the testimony. Section 90.801(2)(b), Florida Statutes (1995), allows a prior consistent statement to be used "to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication." Shellito contends that this exception is...
CopyCited 55 times | Published | Supreme Court of Florida | 1992 WL 275891
...Moreover, because prior consistent statements are usually hearsay, they are inadmissible as substantive evidence unless they qualify under an exception to the rule excluding hearsay. Ehrhardt, Florida Evidence § 801.8. The prior statements of Fernandez and Valdez were properly admitted under section 90.801(2)(b), Florida Statutes (1989), which excludes from the definition of hearsay the prior consistent statement of a witness who testifies at trial and is subject to cross-examination concerning that statement when the statement is offered to "rebut an express or implied charge ......
...Therefore, although I disagree with the reasoning employed by the majority, I agree that the deposition testimony was properly excluded in this case. NOTES [1] When a party seeks to offer a deposition as substantive evidence, it is generally considered inadmissible hearsay. See section 90.801(1)(c), Florida Statutes (1989) ("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.")....
CopyCited 55 times | Published | Supreme Court of Florida
...e hearsay rule. Id. §
90.803(18)(a). Furthermore, the earlier *731 exculpatory statements were offered not to prove the truth of the matters stated, but rather to show the context of appellant's confession, so they were not even hearsay at all. Id. §
90.801(1)(c)....
CopyCited 55 times | Published | Supreme Court of Florida | 2007 WL 1933048
...g impending death." §
90.804(2)(b), Florida Statutes (2006). The State does not challenge this ruling or assert dying declaration as an alternative basis for admission. [3] We assume without deciding that Hagin's statement constituted hearsay under section
90.801(1)(c), Florida Statutes (2006), because the State has not argued to the contrary....
CopyCited 54 times | Published | Supreme Court of Florida | 2000 WL 1424523
...When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. See § 90.801(1)(c), Fla....
CopyCited 53 times | Published | Supreme Court of Florida | 2004 WL 1469327
...The State now contends the testimony was admissible as either an excited utterance or a spontaneous statement. Hearsay is an out-of-court statement testified to by a person other than the declarant which is offered for the truth of the matter asserted therein. See § 90.801(1)(c), Fla....
CopyCited 50 times | Published | Supreme Court of Florida | 2008 WL 4380919
...On the other hand, the court began its analysis by citing a rule of law, quoted above, that was more akin to Thayer's theory. The court mostly seemed concerned with circumstances indicating reliability. See id. [14] These components are embodied in section 90.801(1)-(3), Florida Statutes (2007)....
CopyCited 50 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 157
...iss was granted. On appeal, respondent moved to dismiss the appeal as frivolous because the state had acknowledged "that it in fact had no evidence and the law compelled dismissal." The district court denied the motion to dismiss and later held that section 90.801(2)(a), Florida Statutes (1981), permitted the introduction of prior inconsistent statements made before a grand jury as substantive evidence provided the declarant testifies at trial....
...present the prior inconsistent statements for consideration by the jury. State v. Moore,
424 So.2d 920 (Fla. 4th DCA 1982) ( Moore I ). We subsequently granted review because of direct and express conflict with decisions antedating the enactment of section
90.801(2)(a) which held that such statements could not be introduced as substantive evidence....
CopyCited 48 times | Published | Supreme Court of Florida | 2004 WL 1469337
...is subject to cross-examination concerning the statement and the statement is ... [i]nconsistent 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." § 90.801(2)(a), Fla....
...However, in State v. Delgado-Santos,
497 So.2d 1199 (Fla.1986), this Court held that a statement given under oath during a police investigation is not a statement given at an "other proceeding" and consequently is not admissible as substantive evidence under section
90.801(2)(a). See also Ellis v. State,
622 So.2d 991, 997-98 (Fla.1993) (concluding that pretrial statement by witness during interview with prosecutor could not be admitted as substantive evidence under section
90.801(2)(a) because the interview was not an "other proceeding" within the meaning of the rule). Thus, the videotaped statement that Brittingham gave to the investigating detective did not meet the last requirement of section
90.801(2)(a) and could not be admitted as substantive evidence here....
CopyCited 44 times | Published | Supreme Court of Florida | 1997 WL 603489
...ject to cross-examination concerning the statement and the statement is ... [c]onsistent 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." § 90.801(2)(b), Fla....
CopyCited 44 times | Published | Supreme Court of Florida | 1992 WL 68952
...This taped statement was introduced by the state to rebut the inference that Livingston had a motive to fabricate his story in light of his agreement to testify against Jackson. To the extent the taped statement was consistent with Livingston's trial testimony, it was properly admitted under section 90.801(2)(b), Florida Statutes (1989)....
...The children died of smoke and soot inhalation, and it was Jackson who set fire to the car. *111 The judgments of death should be affirmed. HARDING, J., concurs. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. [2] Section 90.801(2)(b), Florida Statutes (1989), excludes from the definition of hearsay the prior consistent statement of a witness who testifies at trial and is subject to cross-examination concerning that statement when the statement is offered to "rebut an express or implied charge ......
CopyCited 44 times | Published | Supreme Court of Florida | 1993 WL 92767
...ating circumstance that Thompson had helped his equally guilty codefendant avoid the death penalty and, ultimately, a mandatory minimum sentence. We reject this contention and find that Thompson's prior inconsistent testimony met the requirements of section 90.801(2)(a), Florida Statutes (1987), and was admissible....
CopyCited 41 times | Published | Supreme Court of Florida | 2004 WL 2922134
...Further, even if Trevena's testimony is hearsay, the details with regard to Gail's romantic involvement with Larry Royston and her role in planning the murder would likely have been admitted for impeachment purposes, not to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....
CopyCited 41 times | Published | Supreme Court of Florida | 2001 WL 326683
...veled to Crestview with Carlson on the night of the murders. We agree. Hearsay is defined as 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." § 90.801(1)(c), Fla....
CopyCited 40 times | Published | Supreme Court of Florida | 1997 WL 792794
...testimony that he could not find anyone who had sold appellant tires. Hearsay is defined as "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." § 90.801(1)(c), Fla....
CopyCited 39 times | Published | Supreme Court of Florida | 2000 WL 1259395
...this case that an impartial jury could not be impaneled, and an impartial jury appears to have been actually seated. Hearsay In issue two, Foster contends that the trial court erred in admitting hearsay testimony of several witnesses. As defined in section 90.801(1)(c), Florida Statutes (1997), "`[h]earsay' is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A statement may, however, be offered to prove a *915 variety of things besides its truth....
...A prior consistent statement of a witness who testifies at trial and is subject to cross-examination concerning that statement is excluded from the definition of hearsay when the statement is offered to "rebut an express or implied charge ... of improper influence, motive, or recent fabrication." § 90.801(2)(b), Fla....
CopyCited 39 times | Published | Supreme Court of Florida | 55 U.S.L.W. 2247
...o need existed for further cross-examination, especially upon such a flimsy foundation. Appellant next argues that the trial court erred in allowing witness Detective Hansen to read into evidence portions of a statement made by Taylor in 1982, under section 90.801(2)(b), Florida Statutes (1983), as prior consistent testimony tending to rebut implications of improper motive or recent fabrication....
CopyCited 37 times | Published | Supreme Court of Florida | 1992 WL 205517
...Miller flagged him down, "[h]e appeared to be a person that had just witnessed an unusual or serious crime, and very shaken." Additionally, the statement regarding the reddish hair was admissible nonhearsay as one of identification of a person made after perceiving him. See § 90.801(2)(c)....
CopyCited 37 times | Published | Supreme Court of Florida | 2000 WL 350558
...Having concluded that this issue was properly preserved, we turn to the merits of the issue. Clearly, Julie Stoll's handwritten statement is hearsay because it "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." § 90.801(1)(c), Fla....
CopyCited 36 times | Published | Supreme Court of Florida | 1991 WL 1328
...ley told him on August 20 that "Mr. Anderson [said] they should return to where Grantham's body had been left and take it to Orlando because it would be easier to hide over there." Anderson argues that the statements were inadmissible under sections 90.801-.802, Florida Statutes (1985), because they were out-of-court statements offered to prove the truth of the matter asserted. The state argues that Agent Velboom's out-of-court statements were not hearsay, and were admissible under section 90.801(2)(b), Florida Statutes (1985)....
...ting a favorable plea. Thus, if Beasley's statements to Velboom were made before her alleged motive to falsify arose, the state was entitled to present Beasley's prior consistent statements to rebut the implication of recent fabrication, pursuant to section 90.801(2)(b)....
CopyCited 36 times | Published | Supreme Court of Florida | 2006 WL 240418
...nzella accepted Klimeczko's statement. The trial court overruled the defense's objection and allowed the testimony. We conclude that the trial court did not err in admitting this testimony because the testimony was not hearsay. Hearsay is defined in section 90.801(1)(c), Florida Statutes (2005), as "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." (Emphasis added.) See also Hernandez v....
...ape of the crime. [8] The State counters that this issue is not preserved for appellate review because no objection was made at the time the testimony was presented, and that the statement was admissible as a prior inconsistent statement pursuant to section 90.801(2)(a), Florida Statutes (1999)....
...ny could be taken. Moreover, the discovery deposition was not admissible as nonhearsay because *1137 Kinnaman did not testify at trial and the testimony in the discovery deposition was not a statement of identification after perceiving a person. See § 90.801(2)....
...I concur in result only because I do not agree with the majority's opinion in regard to witness Milman's testimony being hearsay. Milman's testimony that Hernandez told him that Hernandez "intended to go to North Carolina" did not meet the definition of hearsay in section 90.801(1)(c)....
CopyCited 35 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 415
...be corroborated by his own prior consistent statement. Van Gallon v. State,
50 So.2d 882 (Fla. 1951); McRae v. State,
383 So.2d 289 (Fla. 2d DCA 1980). The appellant recognizes that the Florida Evidence Code contains certain exceptions to this rule. Section
90.801(2)(b), Florida Statutes (1981), provides such an exception and reads, in part: (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: ......
...ates that the same motive to falsify, namely, to keep Bush out of the electric chair, existed when both statements were made. We find that the admission of the challenged testimony was error because the testimony did not fall within the exception of section 90.801(2)(b)....
CopyCited 34 times | Published | Supreme Court of Florida | 2008 WL 657867
...Finally, the State argues that even if the trial court erred in admitting the videotaped statement at trial, the error was harmless. Section
90.802, Florida Statutes (2007), of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section
90.801(1)(c) as "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." §
90.801(1)(c), Fla....
...ial because defendant was not present during the examination); cf. State v. Green,
667 So.2d 756, 759 (Fla.1995) (ruling that an inconsistent discovery deposition given by a victim who recants at trial is not admissible as substantive evidence under section
90.801(2)(a) which provides that an inconsistent statement given under oath in a deposition is not hearsay)....
CopyCited 33 times | Published | Supreme Court of Florida | 1995 WL 752298
...1st DCA 1995), in which the district court reversed Green's conviction and certified the following question as one of great public importance: WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, DOES HER PRIOR INCONSISTENT STATEMENT, ADMISSIBLE PURSUANT TO SECTION
90.801(2)(a), FLORIDA STATUTES, CONSTITUTE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE ONLY OTHER EVIDENCE OF THE DEFENDANT'S GUILT IS OTHER PRIOR INCONSISTENT STATEMENTS MADE BY THE VICTIM, WHICH HAVE BEEN FOUND TO BE RELIABLE AND ARE ADMISSIBLE PURSUANT TO SECTION
90.803(23)(a), FLORIDA STATUTES? Id. at 791. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We reword the question as follows: WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, IS THE VICTIM'S PRIOR INCONSISTENT STATEMENT ADMISSIBLE UNDER SECTION
90.801(2)(a), WHEN THE STATEMENT WAS TAKEN AS PART OF A DISCOVERY DEPOSITION PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.220? IS THE PRIOR INCONSISTENT STATEMENT OF AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE, EVEN IF SAID ON MULTIPLE OCCASI...
...ed instead that he had not committed those offenses against her and that she had never told anyone that he had. [At trial, she identified another man as the person who forced her to have sex.] Thereupon, over defense counsel's objection, pursuant to section 90.801(2)(a), the trial court allowed the state to read to the jury the victim's deposition testimony....
...d that, before accusing Green, she had accused another man of "messing with" her. A divided First District Court of Appeal reversed the conviction. The district court first found that the deposition was admissible as substantive evidence pursuant to section 90.801(2)(a) (statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and the statement is inconsistent with the testimony and was given under oath subject to the penalty of perjury in a deposition or other official proceeding)....
...nt to sustain the conviction. ADMISSIBILITY OF DISCOVERY DEPOSITION AS SUBSTANTIVE EVIDENCE We first address the admissibility of discovery depositions as substantive evidence. As indicated above, the victim's deposition testimony was admitted under section 90.801(2)(a), Florida Statutes (1989), which reads in part as follows: (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) In...
...idence, the district court relied on this Court's decision in Moore v. State,
452 So.2d 559 (Fla. 1984) ( Moore I ). In Moore I, this Court concluded that prior inconsistent statements given in grand jury proceedings could be properly admitted under section
90.801(2)(a) as substantive evidence. Additionally, we specifically ruled that the words "other proceeding" within the meaning of section
90.801(2)(a) included a grand jury proceeding. We did not, however, address the issue before us here; that is, whether the term "deposition" as used in section
90.801(2)(a) includes depositions taken for purposes of discovery under rule 3.220....
...evidence. State v. Delgado-Santos,
497 So.2d 1199 (Fla. 1986). Consequently, the 1978 adoption of the evidence code allowed, for the first time, *759 the use of prior inconsistent statements as substantive evidence under the conditions set forth in section
90.801(2)(a). Delgado-Santos v. State,
471 So.2d 74 (Fla. 3d DCA 1985), approved,
497 So.2d 1199 (Fla.1986). As we indicated in Moore I, "section
90.801(2)(a) was inspired in part by Federal Rule of Evidence 801(d)(1), which requires the statement to have been given under oath, subject to the penalty of perjury, at a trial, hearing, or deposition."
452 So.2d at 561-62. See also Webb v. State,
426 So.2d 1033 (Fla. 5th DCA), review denied,
440 So.2d 354 (Fla. 1983). Because section
90.801(2)(a) was patterned after the federal provision and because the federal provision had been interpreted to include grand jury proceedings, we concluded that prior inconsistent statements made to a grand jury came within the confines of section
90.801(2)(a)....
...1st DCA 1981) (for a deposition to be used as substantive evidence, it must be taken in compliance with rule 3.190, not rule 3.220). Given our holding in James and the distinctions between depositions taken pursuant to rules 3.190 and 3.220, we must conclude that the term "deposition" in section 90.801(2)(a) does not include depositions taken pursuant to rule 3.220....
....804(2)(a)). We recognize that two lower courts have issued decisions that could be construed to the contrary. See Dennis v. State,
649 So.2d 263 (Fla. 5th DCA 1994) (videotaped deposition of child was properly admitted as substantive evidence under section
90.801(2)(a) after child appeared at trial and recanted prior statements), dismissed,
666 So.2d 142 (Fla.1995); Holmon v. State,
603 So.2d 111 (Fla. 4th DCA 1992) (prior deposition testimony was admissible both as impeachment and as substantive evidence under section
90.801(2)(a))....
...under rule 3.220 or to perpetuate testimony under rule 3.190. Nevertheless, to ensure that no confusion exists as to the issue before us today, we answer the first question in the negative and specifically hold that the term "deposition" as used in section 90.801(2)(a) does not include discovery depositions taken pursuant to rule 3.220. We additionally disapprove both Dennis and Holmon to the extent they could be construed to hold that depositions taken pursuant to rule 3.220 are admissible as substantive evidence under section 90.801(2)(a)....
...ent standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that conclusion today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)....
...ed question in the negative. Accordingly, we answer both of the reworded questions in the negative; we disapprove that part of the district court's opinion finding that the rule 3.220 deposition testimony was admissible as substantive evidence under section 90.801(2)(a); and we approve that part of the district court's opinion holding that the prior inconsistent statements of the victim were insufficient to sustain the conviction in this case....
CopyCited 33 times | Published | Supreme Court of Florida
...State,
303 So.2d 656 (Fla.2d DCA 1974). [3] The new Florida Evidence Code, which takes effect July 1, 1979, provides that this testimony is admissible as non-hearsay if the declarant testifies at trial and is subject to cross-examination concerning the identification. §
90.801(2)(c), Fla....
CopyCited 33 times | Published | Supreme Court of Florida | 1994 WL 137858
...of premeditation. Next, Peterka asserts that the trial court erred in admitting testimony that he was an escaped fugitive from Nebraska and was considered "armed and dangerous" as this testimony was hearsay, irrelevant, and highly prejudicial. Under section 90.801(1)(c), Florida Statutes (1989), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted....
...Baird,
572 So.2d 904, 907 (Fla. 1990). An out-of-court statement, however, may be admitted for a purpose other than proving the truth of the matter asserted, if the statement is relevant to prove a material fact and is not outweighed by any prejudice. See §§
90.402,
90.403,
90.801(1)(c), Fla....
CopyCited 32 times | Published | Supreme Court of Florida | 2002 WL 31519866
..., they cannot qualify as excited utterances and should not have been admitted under that hearsay exception. Although the statements do not qualify under the excited utterance exception to the hearsay rule, their admission was not error because under section 90.801, Florida Statutes (1999), a statement is not hearsay "if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement and the statement is ... [o]ne of identification of a person made after perceiving the person." § 90.801(2)(c), Fla....
CopyCited 31 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 428
...o this case. However, the testimony was properly admitted because it was not hearsay in the first place. Hearsay is a statement, other than one made by a declarant while testifying, offered to prove the truth of the matter asserted in the statement. § 90.801(1)(c), Fla....
CopyCited 28 times | Published | Florida 1st District Court of Appeal | 1991 WL 133574
...ted when examined by the doctor. For any one of three reasons, we find appellant's *1093 argument on this point to be without merit. First, under the facts of the case, we are not persuaded that T.F.'s statement to Dr. Penrod was hearsay at all. [5] Section 90.801(2)(b) provides that a statement is not hearsay 1) if the declarant testifies at trial; 2) is subject to cross-examination concerning the statement; and 3) the statement is consistent with his testimony and is offered to rebut an expres...
...made by the victim to Dr. Penrod identifying her father as the perpetrator of the abuse on the ground that such statements are not hearsay because they were consistent with the witness's testimony and offered to rebut a charge of recent fabrication, Section 90.801(2)(b), Florida Statutes (1985)....
...Dr. Goslin. I. The trial court's admission of statements made by the child victim identifying her father as the person who abused her. As to Judge Miner's conclusion that Dr. Penrod's testimony was otherwise admissible pursuant to the provisions of section 90.801(2)(b), the rule is clear that evidence inadmissible for one purpose under the hearsay rule may be admissible for another purpose....
...in points in Judge Miner's opinion. Judge Miner's opinion correctly concludes that the testimony of Dr. Penrod concerning the victim's response to his question that identified the appellant as her sexual abuser was not hearsay in this instance under section 90.801(2)(b) of the Florida Evidence Code, and thus it was admissible on that basis....
...ring the victim's credibility. Nevertheless, because the victim below had made a pretrial statement that was inconsistent with her earlier statement implicating the defendant, I am of the view that the statement given to Dr. Penrod must, pursuant to section 90.801(2)(b), be considered nonhearsay....
...im, once he or she has come under attack due to a charge of inconsistent conduct, appears to be an extension of the Evidence Code's approval of the admission of prior consistent statements once a witness has been charged with recent fabrication. See section 90.801(2)(b) and discussion supra....
CopyCited 28 times | Published | Florida 4th District Court of Appeal | 2014 WL 1796099, 2014 Fla. App. LEXIS 6716
...rding the conversations he had with his attorney during his police interview. 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.” § 90.801(l)(c), Fla....
CopyCited 28 times | Published | Supreme Court of Florida | 2008 WL 657832
...SC05-1767, ___ So.2d ___,
2008 WL 657867 (Fla. Mar. 13, 2008); State v. Lopez,
974 So.2d 340 (Fla.2008). ANALYSIS Section
90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. §
90.802, Fla. Stat. (2006). Hearsay is defined in section
90.801(1)(c) as "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." Id. §
90.801(1)(c)....
CopyCited 28 times | Published | Florida 1st District Court of Appeal | 2006 WL 176685
...Defense counsel argued that Appellant should be allowed to call the police officer to testify to this matter. We find that because the evidence was to be used to impeach the mother's testimony, rather than to prove the content of the statement, it was not hearsay. § 90.801(1)(c), Fla....
CopyCited 27 times | Published | Supreme Court of Florida | 1991 WL 83561
...was hearsay. The state argued the evidence was admissible because "a specific exception to the hearsay rule, identification of a witness is not hearsay, [or] is excepted" under the Florida Evidence Code. The trial court overruled Hayes's objection. Section 90.801(2)(c) of the Florida Statutes (1987) addresses the admissibility of an out-of-court identification....
...It provides: (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: ... . (c) One of identification of a person made after perceiving him. (Emphasis supplied.) Section 90.801(2)(c) excludes from the definition of hearsay out-of-court statements of identification only when the declarant also testifies at trial....
...State v. Freber,
366 So.2d 426 (Fla. 1978). Since Sedrick did not testify, the identification was hearsay under the rule, and was inadmissible. The state now acknowledges that while the statement may not have satisfied the standard of nonhearsay under section
90.801(2)(c), it was nonetheless nonhearsay because it was not offered to prove the truth of the matter asserted, i.e., the fact that Watson was at the scene....
CopyCited 27 times | Published | Supreme Court of Florida | 2003 WL 1561437
...t statement testifies at trial and is subject to cross-examination concerning that *862 statement; and the statement is offered to `rebut an express or implied charge... of improper influence, motive, or recent fabrication.'" Id. at 197-98; see also § 90.801(2)(b), Fla....
CopyCited 27 times | Published | Supreme Court of Florida
...enal interest to be introduced in evidence. See §
90.804(2)(c), Fla. Stat. (1981). 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. §
90.801(1)(c), Fla....
CopyCited 25 times | Published | Florida 1st District Court of Appeal
...ndbook, [5] it does not appear that any Florida appellate court has expressly confronted the issue of the admissibility of the handbook. Appellant's counsel argues that the handbook is hearsay and does not fit within any of the hearsay exceptions. §§ 90.801, .802, .803, Fla....
...We disagree with SCL's contentions. We conclude the handbook represents a classic example of hearsay. "`Hearsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. " § 90.801(1)(c), Fla....
CopyCited 25 times | Published | Supreme Court of Florida | 2009 Fla. LEXIS 405, 2009 WL 702262
...this purpose and should be redacted. We agree. The Florida Evidence Code defines hearsay as "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." § 90.801(1)(c), Fla....
CopyCited 24 times | Published | Supreme Court of Florida
...On the other hand, the statute contains no "consistency" requirement. In contrast, and to demonstrate that the legislature knew how to impose a "consistency" requirement if desired, the legislature specifically addressed the issue of consistency between out-of-court statements and in-court testimony in section 90.801, Florida *1161 Statutes (1995), in defining non-hearsay....
...If the basis is that, because the out-of-court statement which is admissible under a recognized hearsay exception, is inadmissible simply because it is inconsistent with the in-court testimony of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception. These exceptions are surrounded by circumstantial guarantees of reliability which are not necessarily present when a statement is offered under section
90.801(2)....
...Freber,
366 So.2d 426, 428 (Fla.1978). Realizing that physical appearances can change and memories dim, we concluded that the use of prior identifications as substantive evidence of identity was imperative or "conviction would in some instances be impossible." Id. Under section
90.801(2)(c), the codification of the Freber holding, this out-of-court statement of identification is considered nonhearsay and, thus, "is admissible in court to prove the truth of the matter asserted, e.g., to prove that the person identified was the person who committed the act." Charles W....
...Ehrhardt, Florida Evidence § 803.23, at 697-98 (1996 ed.) (footnotes omitted). [9] This does not mean, for example, that a trial court may not be asked to reconsider any previous finding of reliability based upon subsequent inconsistent statements, including those made at trial, of the child victim. [10] Section 90.801 provides in pertinent part: (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 defendant's test...
...imony is specifically addressed in paragraphs (2)(a) and (b) of the statute. There is no similar language in section
90.803(23). [11] In Green we also held that a discovery deposition could not be used as substantive evidence under the provisions of section
90.801(2)(a)....
CopyCited 24 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 370, 2012 WL 1722581, 2012 Fla. LEXIS 963
...ble hearsay that could not be considered during the penalty phase. Hearsay is defined as “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.” § 90.801(l)(c), Fla....
CopyCited 24 times | Published | Supreme Court of Florida | 2001 WL 1585324
...ds that it would constitute a hearsay statement. We hold that the State's questioning of Detective Brumley on direct examination neither constituted hearsay nor "opened the door" to allow the defense to ask about specific leads on cross-examination. Section 90.801(1)(c), Florida Statutes (2001), defines "hearsay" as "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." In this case, Detective B...
...offered in evidence to prove the truth of the matter asserted." Rather, Detective Brumley provided testimony concerning the police department's conduct after the investigation. Even under the definition of a "statement" that provides "nonverbal conduct of a person if it is intended by the person as an assertion," section 90.801(1)(a)2., Detective Brumley's statements do not qualify as hearsay....
CopyCited 23 times | Published | Florida 1st District Court of Appeal
...rmitted. Under the Florida Evidence Code, there are limited circumstances under which a prior inconsistent statement may be admissible as substantive evidence, i.e. for purposes of establishing the truth of the content of such prior statement. Under Section 90.801(2)(a), Florida Statutes (1983), a prior inconsistent statement may be received as substantive evidence if the person who gave the statement testifies and is subject to cross-examination concerning the statement and such statement had b...
...1st DCA 1983) (testimony of witness exculpating defendant was prejudicial to state and witness was therefore adverse thus, prior unsworn statement was properly admitted for impeachment purposes under Section
90.608 but inadmissible as substantive evidence under Section
90.801(2)(a)); and Mazzara v. State,
437 So.2d 716 (Fla. 1st DCA 1983) (prior statement not admissible under Section
90.801(2)(a) but admissible under Section
90.608(2))....
CopyCited 22 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 434
...stent statements. §
90.614(2), Fla. Stat. (1985). The statements were not admissible as an exception to the hearsay rule for purposes of substantive evidence because they were not given "at a trial, hearing, or other proceeding or in a deposition." §
90.801(2)(a), Fla....
CopyCited 21 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 321
...There is no indication in the record as to when within the two-week period the incidents occurred, nor is there any indication as to how long she had been home before she made the statement. Finally, the state argues that the mother's testimony is admissible under section 90.801(2)(b) of the Florida Statutes, which provides: 90.801 Hearsay; definitions; exceptions....
CopyCited 20 times | Published | Supreme Court of Florida | 11 Fla. L. Weekly 565
...t statement made by respondent's alleged accomplice during a police interrogation. We find conflict with Robinson v. State,
455 So.2d 481 (Fla. 5th DCA 1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue requires interpretation of section
90.801(2)(a), Florida Statutes (1981), to determine whether this provision of our evidence code permits admission, as substantive evidence at trial, of a trial witness's prior inconsistent statement made during police interrogation. Prior to the evidence code's adoption in 1978, such evidence was inadmissible. See Tomlinson v. Peninsular Naval Stores Co.,
61 Fla. 453,
55 So. 548 (1911). The evidence code, under section
90.801(2)(a), now permits such prior inconsistent statements that are "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." In the instant case, the district court thoroughly reviewe...
CopyCited 20 times | Published | Florida 2nd District Court of Appeal
...GRIMES, C.J., and RYDER, J., concur. NOTES [1] Under the Florida Evidence Code, applicable to criminal proceedings related to crimes committed after its effective date, §
90.103(2), Fla. Stat. (1979), Piacenti's testimony would not constitute hearsay. Section
90.801(2)(c) provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and if the statement is "[o]ne of identification of a person made after perceiving him." However, because the crimes in question here were committed prior to the effective date of Section
90.801, July 1, 1979, Ch....
CopyCited 20 times | Published | Florida 3rd District Court of Appeal
...Here, although the witness was not incompetent to testify concerning the decedent's actions or nonverbal conduct, it is clear that such testimony was being offered to prove an assertion on the part of the decedent and is therefore, by definition, hearsay. See § 90.801(1)(a), Fla....
CopyCited 20 times | Published | Florida 5th District Court of Appeal
...See also 3A Wigmore, Evidence § 907 (Chadbourne Rev. 1970). [8] § 90.09, Fla. Stat. (1974) (amended 1978). [9] This was formerly considered improper because the prior statement was considered hearsay but some prior statements are now not within the statutory definition of hearsay. See §
90.801(2)(a), Fla. Stat. (1981). [10] See, e.g., Gibbs v. State,
193 So.2d 460 (Fla. 2d DCA 1967). [11] In that circumstance the calling party is not bound by that party-witness' testimony and may introduce statements of the witness as described in section
90.801(2) or admissions under section
90.803(18), and such statements and admissions are incidentally considered as impeachment under section
90.608(1)(a), and may also introduce proof by other witnesses as to facts material to the issues in...
CopyCited 19 times | Published | Florida 1st District Court of Appeal
...Although the general rule is that the witness's testimony cannot be corroborated by a prior consistent statement, McRae v. State,
383 So.2d 289, 292 (Fla. 2d DCA 1980), the Florida Evidence Code, following the common law, has recognized exceptions to this rule. The exception pertinent to this issue is provided in Section
90.801(2)(b), Florida Statutes, stating: (2) A statement is not hearsay if the declarant testifies at the trial or hearing in a subject to cross-examination concerning the statement and the statement is: * * * * * * (b) Consistent with his te...
CopyCited 19 times | Published | Florida 4th District Court of Appeal | 2002 WL 384970
...Nevertheless, it was harmless because the prosecutor also referred to Anna's statement at the bond hearing in which she testified that she had invited the victims into the home. This statement was not hearsay because it was given under oath at the bond hearing. See § 90.801(2)(a), Fla....
CopyCited 19 times | Published | Supreme Court of Florida
...y testimony as substantive evidence. On appeal the district court reversed, holding that the use of prior inconsistent statements as substantive evidence is now authorized by the Florida Evidence Code, which took effect on July 1, 1979. Section *561 90.801(2)(a), Florida Statutes (1981), provides: (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 his testimony...
...The Florida Law Revision Council, which drafted the Code pursuant to legislative authority and in turn recommended it for adoption by the legislature, wrote extensive commentaries on the intent and purposes supporting the various provisions. The Law Revision Council's note to section 90.801(2)(a) explained as follows: Paragraph (a) This paragraph excludes from the definition of hearsay certain out-of-court statements by a witness who testifies at the trial or hearing and is subject to cross-examination....
...w the use of prior sworn statements of witnesses as substantive evidence. Accordingly, we approve the district court's holding that the use of such statements as substantive evidence was intended. As was stated above, however, petitioner argues that section 90.801(2)(a) excludes from the definition of hearsay only statements made in proceedings where the witness was subject to cross-examination....
...of the proceedings specifically mentioned entail the right of cross-examination; testimony before a grand jury is not subject to cross-examination by the accused. We disagree with petitioner's conclusion. The Law Revision Council notes indicate that section 90.801(2)(a) was inspired in part by Federal Rule of Evidence 801(d)(1), which requires the statement to have been given under oath, subject to the *562 penalty of perjury, at a trial, hearing, or deposition. As is indicated below, Rule 801(d)(1) has been interpreted as including statements given under oath before a grand jury. Because section 90.801(2)(a) was patterned after Federal Rule of Evidence 801(d)(1), we should construe the former in accordance with federal court decisions interpreting the latter....
...the confrontation clause of the sixth amendment in California v. Green,
399 U.S. 149,
90 S.Ct. 1930,
26 L.Ed.2d 489 (1970). In response to that decision Congress enacted Federal Rule of Evidence 801(d)(1)(A) which uses language identical to that in section
90.801(2)(a)....
...Champion International Corp.,
557 F.2d 1270 (9th Cir.), cert. denied,
434 U.S. 938,
98 S.Ct. 428,
54 L.Ed.2d 298 (1977); United States v. Mosley,
555 F.2d 191 (8th Cir.), cert. denied,
434 U.S. 851,
98 S.Ct. 163,
54 L.Ed.2d 120 (1977). We therefore hold that under section
90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact. We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence. Section
90.801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal
...clusion. This rule we hold applies to relevant similar fact evidence ... even though it points to the commission of another crime." [2] Examples of relevant but inadmissible evidence are: Privileged relationships, §
90.502-506, Fla. Stat.; hearsay, §
90.801, Fla....
CopyCited 18 times | Published | Florida 4th District Court of Appeal | 2007 WL 2609428
...When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. See § 90.801(1)(c), Fla....
CopyCited 18 times | Published | Florida 3rd District Court of Appeal | 1990 WL 58256
...The fact said to indicate the motive, Jennifer's desire to maintain her sexual relationship with her boyfriend, took place when she first engaged in sexual intercourse with the boyfriend. According to Jennifer's testimony, this occurred one week before she reported her father to the authorities. Section 90.801(2)(b), Florida Statutes (1985), sets forth the following exception to the general rule against admissibility of hearsay evidence: 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: ... . Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication. .. . However, section 90.801(2)(b) permits the admission of only prior consistent statements made before the existence of the facts said to indicate an improper influence....
CopyCited 18 times | Published | Florida 4th District Court of Appeal | 1993 WL 174881
...Lasky testified that during the course of their conversation that night, Ms. Rigdon told her that she felt threatened. Ms. Rigdon's statement, as related by Ms. Lasky, was hearsay, as it was an out of court statement offered in evidence to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....
CopyCited 18 times | Published | Supreme Court of Florida | 2008 WL 89979
...endant's trial because defendant was not present during the examination). Cf. State v. Green,
667 So.2d at 759 (ruling that an inconsistent discovery deposition given by a victim who recanted at trial was not admissible as substantive evidence under section
90.801(2)(a), Florida Statutes (1989), which provided that an inconsistent statement given under oath in a deposition was not hearsay)....
CopyCited 17 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 541, 2009 Fla. LEXIS 1577, 2009 WL 3029662
...As this Court has recognized, hearsay is defined as "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." Penalver v. State,
926 So.2d 1118, 1131 (Fla.2006) (quoting §
90.801(1)(c), Fla....
CopyCited 17 times | Published | Florida 3rd District Court of Appeal | 2008 WL 723786
...at trial, told Martin that he had "done a robbery in Miami Lakes," and that "The Fish," later identified as Salgado, participated in the robbery. The defendant argues that the introduction of the statements was in violation of the hearsay rule, see § 90.801(1)(c), Fla....
CopyCited 17 times | Published | Supreme Court of Florida | 1996 WL 296517
...any factual conflict which exists. Because otherwise, we submit, then, the pleadings cannot justify the denial of the Motion to Vacate Judgment. State v. Roberts, No. 84-13010 (Fla.Cir.Ct. Feb. 21, 1996) (Transcript of Proceedings at 24). [2] Under section 90.801(2), Florida Statutes (1983), this prior inconsistent statement, made at a deposition, could not only be used to impeach but could be used as substantive evidence....
CopyCited 17 times | Published | Florida 3rd District Court of Appeal | 2017 WL 36264, 2017 Fla. App. LEXIS 28
...ting disclosure
should be modified and the witness should be allowed to testify.
16 We note, however, that the letter appears to be admissible as non-hearsay, to
rebut an implied charge of improper influence, motive, or recent fabrication. See §
90.801(2)(b), Fla....
CopyCited 17 times | Published | Supreme Court of Florida | 1993 WL 322935
...[12] However, the State's failure to introduce the physicians' statements through section
90.803(23) is not fatal to the State in this case because the statements in question were admissible as prior consistent statements by the child to rebut charges of recent fabrication and improper influence. Section
90.801(2)(b), Fla....
...ay on the stand. The defense counsel also asked if she had been told to accuse Jones in order to protect her uncle. The physicians' later testimony, which was consistent with that of the *827 child at trial, satisfies the definition of nonhearsay in section 90.801(2)(b), and under the circumstances and facts of this particular case, it was properly admitted by the trial judge....
...ng and is subject to cross-examination concerning the statement and the statement is: ... . (b) Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication. .. . § 90.801(2)(b), Fla....
CopyCited 16 times | Published | Florida 5th District Court of Appeal
...The lower court's dismissal was based on the well-entrenched rule applicable at trials in Florida, that a witness' prior inconsistent statement cannot be used as substantive evidence, but can only be used for the purpose of impeachment. [1] Because the alleged crime took place prior to July 1, 1979, the "new" Evidence Code § 90.801(2)(a) would not be applicable to the trial of this case, and we do not reach the question of whether or not the statements would be admissible as substantive evidence under the Code....
CopyCited 16 times | Published | Florida 1st District Court of Appeal
...The State, as part of its case in chief, introduced over objection the testimony of two witnesses, each of whom testified as to statements made to him by the victim, each of which statement was offered to prove the truth of the matter asserted. The statements were hearsay by definition, § 90.801, Fla....
CopyCited 16 times | Published | Florida 5th District Court of Appeal | 2013 WL 756350, 2013 Fla. App. LEXIS 3302
...d not be considered by the trial court to support extension of the injunction. See, e.g., Pittman v. State,
646 So.2d 167, 171-72 (Fla.1994) (holding witness’s testimony concerning what stepson had told him was inadmissible hearsay); see generally §
90.801(l)(c), Fla....
CopyCited 16 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 1426
...Before SCHWARTZ, C.J., and HUBBART and FERGUSON, JJ. SCHWARTZ, Chief Judge. This appeal is from convictions, after a jury trial, of first degree murder and armed robbery. The controlling question presented is whether a police interrogation is a "proceeding" under section 90.801(2)(a), Florida Statutes (1981), so as to permit the admission as substantive evidence of a trial witness's prior inconsistent statement made during such questioning....
...nt itself as direct evidence of Santos's guilt. Overruling the defendant's specific objection that it could not be received for that purpose, the trial court admitted it into evidence. This was reversible error. The question before us is governed by section 90.801(2)(a), Florida Statutes (1981)....
...st be construed so as to limit its meaning to one similar to that of the specific terms, "trial" and "hearing," which it follows. 49 Fla.Jur.2d Statutes § 128 (1984); Black's Law Dictionary 608 (rev. 4th ed. 1968). Indeed, the order of the words in section 90.801(2)(a), Florida Statutes (1981) indicates a descending sequence from the most formal setting to the least formal....
...C.J.S. Actions § 1h (1936); cases collected, 34 Words and Phrases "Proceeding" (1957). Using these tools, it seems obvious to us on the face of it that no process of police questioning much less one of the kind involved here can qualify as a 90.801(2)(a) "proceeding." Investigative interrogation is neither regulated nor regularized; it contains none of the safeguards involved in an appearance before a grand jury and does not otherwise even remotely resemble that process; and it has no qu...
...could arguably raise the interrogation to a dignity akin to that of a hearing or trial. In accordance with this view, the overwhelming weight of authority on the issue is that no variation of police investigatory activity constitutes an 801(d)(1)(A)-90.801(2)(a) proceeding....
...Castro-Ayon : An Interpretation of Federal Rule of Evidence 801(d)(1)(A), 10 S.W.U.L.Rev. 985 (1978). [6] On a related question, Arner v. State,
459 So.2d 1136 (Fla. 4th DCA 1984) holds that a prior sworn statement given to defense counsel was inadmissible under
90.801(2)(a) because it had not been taken in a prior "judicial [sic] proceeding." On the other hand, in Diamond v....
...(1981) ("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."); Maugeri v. State,
460 So.2d 975 (Fla. 3d DCA 1984). In the absence of such a provision in
90.801(2)(a), the Robinson-Smith rationale, rendering a "reliable" statement admissible although there would otherwise be no "proceeding," would amount to the enactment of a catch-all or umbrella exception for the admission of trustworthy hearsay which does not fall within any of the specific exceptions....
CopyCited 16 times | Published | Supreme Court of Florida | 2001 WL 788085
...erted in the statements, i.e., Banks' participation in the illegal drug transaction. Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....
CopyCited 16 times | Published | Florida 1st District Court of Appeal | 1989 WL 97684
...ify as to statements the victim made to them regarding what had occurred on the night of the incident. Appellant argues that the statements were consistent with the victim's trial testimony and served only to bolster her credibility, in violation of section 90.801(2)(b), Florida Statutes....
...In general, prior consistent statements of a witness are inadmissible to corroborate or bolster the witness' trial testimony. Van Gallon v. State,
50 So.2d 882 (Fla. 1951); Jackson v. State,
498 So.2d 906 (Fla. 1986); McElveen v. State,
415 So.2d 746 (Fla. 1st DCA 1982). However, under §
90.801(2)(b), prior consistent statements are not hearsay and can be used as substantive evidence, if the declarant testifies at trial, is subject to cross-examination regarding the prior statement, and the statement is offered to rebut an express or implied charge of improper influence, motive, or recent fabrication....
CopyCited 15 times | Published | Florida 1st District Court of Appeal | 1992 WL 123322
...under other provisions of the evidence code, i.e., that C.M.F.'s statements to his mother were admissible under section
90.803(2), the excited utterance exception of the hearsay rule, while his hearsay statements to the officer were admissible under section
90.801(2)(b) to rebut a charge of recent fabrication of C.M.F.'s trial testimony....
...bout it. The circuit court ruled, and we agree, that C.M.F.'s statements to his mother were not an excited utterance. We likewise conclude that C.M.F.'s statements to the officer were not admissible to rebut the inference of recent fabrication under section 90.801(2)(b), Florida Statutes (1989)....
...This court held that the trial court committed reversible error in allowing the state to introduce these prior statements made to the mother and the deputy sheriff because they were consistent with the victim's trial testimony and served only to impermissibly bolster her credibility, contrary to section 90.801(2)(b)....
CopyCited 15 times | Published | Florida 3rd District Court of Appeal | 1980 Fla. App. LEXIS 16902
...herwise inadmissible as hearsay; such testimony was not admitted to prove the truth of the matter stated, but only to show that such testimony was, in fact, the insured's position in this cause. Pauline v. Lee,
147 So.2d 359, 363 (Fla. 2d DCA 1962); §
90.801(1)(c), Fla....
CopyCited 15 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 211, 2010 Fla. LEXIS 545, 2010 WL 1488028
...nocent of the crime based on Schlup v. Delo,
513 U.S. 298,
115 S.Ct. 851,
130 L.Ed.2d 808 (1995). Lambrix mischaracterizes the holding of Schlup, which does not provide a freestanding claim to relitigate claims that are procedurally barred. [11] See §
90.801(2)(b), Fla....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal
...The appellee contends that the statements were admissible under the common law complaint theory or pursuant to the spontaneous statement exception to the hearsay rule. We agree with the appellant's contention that it was error to admit the testimony. The statements were clearly hearsay. Section 90.801(1)(c), Florida Statutes (1979), provides: "Hearsay" is an out-of-court statement, other than one made by a declarant who testifies at the trial or hearing, offered in court to prove the truth of the matter contained in the statement....
...Second, the declarant is not in court for the trier of fact to observe his or her demeanor. Third, and of prime importance, the declarant is not subjected to cross-examination in order to test the truth of the statement. State v. Freber,
366 So.2d 426 (Fla. 1978). Section
90.801(2)(c), Florida Statutes (1979), provides that a statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him....
CopyCited 14 times | Published | Florida 1st District Court of Appeal | 10 Fla. L. Weekly 2078, 1985 Fla. App. LEXIS 15736
...Hooper's proferred testimony that Hosner told him he had made the necessary arrangements for the loan with Riffel that day. We agree with appellee that if this statement was not offered to prove the truth of the fact stated by Hosner, it was irrelevant. If it was offered to prove the fact, it was hearsay. Section 90.801, Florida Statutes (1983), Florida Evidence Code....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal
...Our analysis of Dinter's first point begins with the proposition that Heinz Dinter's deposition, being "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," is hearsay. § 90.801(1)(c), Fla....
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 2006 WL 473880
...ject to de novo review. K.V. v. State,
832 So.2d 264, 265-66 (Fla. 4th DCA 2002). "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. §
90.801(1)(c), Fla....
CopyCited 14 times | Published | Supreme Court of Florida | 1991 WL 6532
...s engaged in a burglary; and the defendant had been convicted previously of a violent felony. [2] We recognize that at least some of the proffered testimony was not hearsay at all because it was not offered to prove the truth of the matter asserted. § 90.801(1)(c), Fla....
CopyCited 14 times | Published | Florida 3rd District Court of Appeal | 1997 WL 799591
...ement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that decision today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)....
...If the basis is that, because the out-of-court statement which is admissible under a recognized hearsay exception, is inadmissible simply because it is inconsistent with the in-court testimony of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception. These exceptions are surrounded by circumstantial guarantees of reliability which are not necessarily present when a statement is offered under section
90.801(2)....
...EHRHARDT, FLORIDA EVIDENCE § 803.23, at 702 (1996 Edition) *465 (footnote omitted))(emphasis in original). The Court's expressed agreement with this concept is difficult to reconcile with its opinion in Green, which, as quoted above, specifically refuses to distinguish between prior inconsistent statements admitted under section
90.801(2) and those admitted under section
90.803(23) for purposes of establishing the legal sufficiency of a criminal conviction secured solely on the basis of such statements....
...[5] We do not suggest that only hearsay evidence which qualifies as a firmly rooted exception is sufficient to sustain a criminal conviction. Like the Supreme Court of Florida, we find persuasive Professor Ehrhardt's conclusion that "although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception." In our view, even a child victim hearsay statement is sufficient, on its own...
CopyCited 14 times | Published | Florida 4th District Court of Appeal | 1998 WL 171564
...vidence on which the revocation was based was hearsay. We affirm. *97 Appellant's community control officer testified as to what three witnesses, who were not present at the revocation hearing, told him. This was, of course, hearsay as is defined by section 90.801(1)(c), Florida Statutes (1995)....
CopyCited 13 times | Published | Florida 2nd District Court of Appeal | 1990 WL 60895
...Lastly, Page argues that the trial court erred in allowing a friend of Nicole's, Christie Helms, to testify that Nicole told Christie that Page had molested her. The admissibility of that clearly hearsay testimony was sought to be justified as within the provisions of section 90.801(2)(b), Florida Statutes (1987)....
CopyCited 13 times | Published | Florida 4th District Court of Appeal | 1991 WL 4311
...The court permitted, over objection, the victim's daughter and the witness Hayes to testify that the victim named Stanford as his assailant. In addition, the victim's grandson testified without objection that his grandfather affirmatively indicated that Stanford was the assailant. According to section 90.801(2), Florida Statutes, [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: * * * * * * (c) One of identification of a person made after perceiving him. Both the testimony of the person having made the identification and of witnesses who were present when the identification was made are admissible. The official comments to section 90.801 note that such statements bear the mark of reliability because they are usually made in close temporal proximity to the actual event while the witnesses' visual memory of the event is fresh....
...554,
108 S.Ct. 838,
98 L.Ed.2d 951 (1988), the court approved admission of a victim's statement naming his attacker, even though the declarant himself could no longer remember the incident, under Federal Rule of Evidence 801(d)(1)(C), which is similar to section
90.801 in its language and effect....
...The trial court excluded the evidence as hearsay. Although the appellate court recognized the general rule permitting out-of-court identifications, it approved the exclusion because the witness' description did not amount to an actual identification. Section 90.801(2)(C), the court held, applies only to designations and references to a particular person, not to general characteristic descriptions.
CopyCited 12 times | Published | Florida 4th District Court of Appeal | 2006 WL 3018232
...There is no showing that the request would have been refused. As to the remaining evidentiary issues raised, the trial court did not abuse its discretion in admitting either the traffic investigator's expert evidence, or in admitting a prior consistent statement by one of the officers. See § 90.801(2)(b), Fla....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 1983 Fla. App. LEXIS 19369
...To support his testimony, Johnson offered a written statement, admitted over objection, describing in general terms what he achieved but offering no details to enlighten the court as to the manner in which he performed his obligation. Johnson's written statement constituted hearsay, Florida Evidence Code, section 90.801(1)(c), as amended by Chapter 81-93, section 2, Laws of Florida, and was therefore inadmissible....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1489
...al. Over defense objection, the trial court permitted the investigating officer and the prosecutrix' boyfriend to recount the prosecutrix' prior consistent statements concerning the details of the alleged offense. This testimony was clearly hearsay. § 90.801(1)(c), Fla. Stat. (1983). While section 90.801(2)(b), Florida Statutes (1983), provides that a prior consistent statement is not objectionable if it is offered to rebut an express or implied charge of improper influence, motive, or recent fabrication, the statement must have been m...
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 1997 WL 400088
...[2] Even if the prosecutor had made his statement in testimony under oath, reporting facts developed by a third party, or if the State had attempted to introduce the traverse into evidence, both properly would have been rejected as inadmissible hearsay. § 90.801, Fla....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal
...t the opinion expressed, the facts or data need not be admissible in evidence. This does not permit an expert witness in one field to testify as to the expert opinion given to him by another expert. Such testimony is inadmissible hearsay pursuant to section 90.801(2)(c), Florida Statutes (1981)....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 18105, 2011 WL 5554829
..."The fact that a witness once stated something was true is not logically inconsistent with a subsequent loss of memory." James v. State,
765 So.2d 763, 766 (Fla. 1st DCA 2000) (quoting with approval State v. Staley, 165 Or.App. 395, 995 P.2d 1217, 1220 (2000)). Moreover, under Section
90.801(2)(c), Florida Statutes, a statement of identification is not hearsay....
...As stated by our court in Stanford v. State,
576 So.2d 737 (Fla. 4th DCA 1991): Both the testimony of the person having made the identification and of witnesses who were present when the identification was made are admissible. The official comments to section
90.801 note that such statements bear the mark of reliability because they are usually made in close temporal proximity to the actual event while the witnesses' visual memory of the event is fresh....
...the witness seeing a person after the criminal episode and identifying that person as the offender. Id. at 739-40. (emphasis added) (footnote omitted.) See also Liscinsky v. State,
700 So.2d 171, 172 (Fla. 4th DCA 1997) (officer could testify under section
90.801(2) that a witness to a crime identified the accused by name, as the perpetrator at the initial investigation immediately following the incident)....
CopyCited 11 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1175488
...Each of the recanting witnesses selected a photograph of a person they referred to as "Troy." Smith's nickname is Troy. At trial, one of the prosecutors suggested that the statements were admissible as nonhearsay evidence under the alternative *739 theory of "statements of identification" pursuant to section 90.801(2)(c)....
...This exchange reveals that both the trial judge and the prosecutor realized that even if the small segments of the tape-recorded statements containing the photopack identifications could be played for the jury as statements of identification pursuant to section 90.801(2)(c), this would not render the balance of the tape-recorded statements admissible into evidence....
...identification theory and embraced the recorded recollection rationale, declaring, "Okay, I'll do it that way then." On appeal, the State now argues that the tape-recorded statements were properly played for the jury as statements of identification. Section 90.801 provides, in pertinent part: (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: .......
...State,
692 So.2d 264, 265 (Fla. 5th DCA 1997) (photopack); Brown v. State,
413 So.2d 414 (Fla. 5th DCA 1982) (photopack). A lineup was involved in Eans,
366 So.2d 540, a case decided before the effective date of the evidence code. Florida courts have limited the scope of section
90.801(2)(c) to exclude statements containing descriptions or accusatory narratives....
...n identification. In Stanford v. State, 576 So.2d *740 737 (Fla. 4th DCA 1991), the Fourth District considered whether testimony concerning a victim's statements naming the defendant as his assailant was properly admissible into evidence pursuant to section 90.801(2)(c)....
...tement of identification. Simmons v. State,
782 So.2d 1000, 1001 (Fla. 4th DCA 2001). A police officer's testimony in a prosecution for burglary that a witness reported seeing "two black men prowling around the neighborhood" was not admissible under section
90.801(2)(c). Hendrieth v. State,
483 So.2d 768, 769 (Fla. 1st DCA 1986). Therefore, accusatory statements in the form of a narrative are not admissible into evidence pursuant to section
90.801(2)(c). But see Liscinsky v. State,
700 So.2d 171 (Fla. 4th DCA 1997) (holding testimony that witness to crime identified defendant by name as perpetrator at initial investigation immediately following incident was admissible under section
90.801(2)(c) or, in the alternative, was harmless error). [3] The tape-recorded statements of the recanting witnesses were largely accusatory narratives that recited the witnesses' accounts of the shooting and Smith's role in it. Therefore, the statements were not admissible in their entirety under section
90.801(2)(c) as statements of identification. See Puryear,
810 So.2d 901; Richards,
843 So.2d 962; Simmons,
782 So.2d 1000; Stanford,
576 So.2d 737. The expansive view of section
90.801(2)(c) contended for by the State would seriously erode the rule that a witness's prior inconsistent statements are admissible for impeachment purposes only and not as substantive evidence....
...I dissent from the majority's conclusion that the admission of the tape-recorded statements at trial requires the reversal of Smith's convictions. Because I conclude that the crucial portions of the recorded statements were admissible as statements of identification under section 90.801(2)(c) and that any error with respect to the admission of other portions of the recorded statements was not harmful, I would affirm Smith's convictions. As the majority apparently acknowledges, it is well-established that "[s]ection 90.801(2)(c) applies regardless of whether the declarant identifies the individual in court....
...."); United States v. Shryock,
342 F.3d 948, 982 (9th Cir.2003) (holding that "prior identification of [defendant] was admissible nonhearsay" where witness denied identification at trial). A prior statement of identification is thus admissible under section
90.801(2)(c) as substantive evidence to refute the testimony of witnesses who have changed their story at trial....
...victions which rest on such statements of identificationmust be reversed. The majority bases the reversal of Smith's conviction on its conclusion that "accusatory statements in the form of a narrative are not admissible into evidence pursuant to section 90.801(2)(c)." In support of this conclusion, the majority observes that the State's position in support of the admission of the tape-recorded statements "would seriously erode the rule that a witness's prior inconsistent statements are admis...
...confront adverse witnesses." The majority also apparently takes the view that testimony relating to the "statements that concerned the recanting witnesses' selection of Smith's photograph from the photopack" could have been properly introduced under section 90.801(2)(c)....
...In connection with this, the majority expresses no opinion regarding whether the "limited segments of the tape-recorded statements" regarding the identification of Smith from his photograph might properly have been played for the jury but observes that "the better practice would [be] to lay a proper foundation under section 90.801(2)(c) and elicit testimony from [the detective who conducted the taped interviews] about the out-of-court identifications." The majority opinion, in my view, places unreasonable limitations on the admission of evidence that is highly relevant and probative and that is specifically made admissible under section 90.801(2)(c)....
...ts of identification. Although the precise parameters of the limitations on statements of identification are not made clear by the majority, the majority opinion manifests an unmistakable inclination to minimize the admission of evidence pursuant to section 90.801(2)(c)....
...The Admissibility of Tape-Recorded Statements The majority's unduly restrictive approach is illustrated by its statement admittedly in dictathat the better practice would be not to play even the portions of the audiotapes containing statements that would properly be admissible under section 90.801(2)(c)....
...ce do not permit the exclusion of such evidence. Here, there is nothing suggesting that there is any danger of unfair prejudice to Smith from the admission of the admissible portions of the audiotapes. The Scope of Statements of Identification Under Section 90.801(2)(c) For the identification of a person to have any practical significance and legal relevance, *744 the identification must be correlated with some specific conduct of the person identified....
...te that any statement of identification necessarily involves some description a narrativeof the identified person's conduct. They also demonstrate that such statements can have an unmistakable accusatory character. A reasonable interpretation of section 90.801(2)(c) requires that the permissible scope of the content of a statement of identification be broad enough to establish the practical significance and legal relevance of the out-of-court identification....
...In determining that the admission of those "accusatory statements" required reversal of the conviction, the A.E.B. court relied on Caruso v. State,
645 So.2d 389, 394 (Fla.1994), a case which does not address the admission of statements of identification pursuant to section
90.801(2)(c)....
...red reversal. The court did not discuss how those inadmissible statements related toor did not relate tothe properly admitted statement of identification. A.E.B. thus affords no guidance on the proper scope of a statement of identification under section 90.801(2)(c)....
...ut the use of a photograph or in-person identification. In this case, we therefore need not address the issue of whether such statements of identification made without the use of a photograph or in-person identification are properly admissible under section 90.801(2)(c) as statements "of identification of a person made after perceiving the person." Compare Liscinsky v....
...nesses establishing the time and place of the incident and the fact that Troy who was identified from a photograph by each witnesshad shot the gun at the truck in which the victim was located were admissible as statements of identification under section 90.801(2)(c)....
...the person who left the scene carrying a gun and exclaiming, "I killed that cracker"were necessary to give meaning to the identification of the photograph of the person known to the witnesses as Troy. Their admission into evidence was proper under section 90.801(2)(c)....
...of the portions of the tape-recorded statements beyond the scope of the statements of identification was not harmful error. Id. There is no reason to believe that anything in the portions of the tape-recorded statements that were inadmissible under section 90.801(2)(c) influenced the jury to assign a level of credibility to the statements of identification that would have been lacking if those portions had been properly introduced for impeachment subject to a limiting instruction....
...There is simply no basis for concluding that there is a reasonable possibility that the jury's verdict was influenced by the purely incidental information that was admitted without a proper limiting instruction. The majority's opinion cites nothing in the portions of the tape-recorded statements not admissible under section 90.801(2)(c) that specifically bolsters the actual statements of identification or that would have otherwise influenced the jury to reach a guilty verdict....
...ent trial testimony. That assumption leads the majority to ignore "permissible evidence on which the jury could have legitimately relied." Id. Statements of Identification as Substantive Evidence The majority makes the point that the State's view of section
90.801(2)(c) would "seriously erode the rule that a witness's prior inconsistent statements are admissible for impeachment purposes only and not as substantive evidence." This is a curious point that the majority supports by the citation of decisions Delgado-Santos and Ivery which do not address section
90.801(2)(c). The problem with the State's position is not that it would erode the general rule that a witness's prior inconsistent statements are admissible for impeachment purposes only but that it would stretch the admission of substantive evidence under section
90.801(2)(c) beyond what can reasonably be considered a statement of identification. Whatever one may think of the policy underlying section
90.801(2)(c), the unmistakable point of that policy is to supplant not merely erodethe rule limiting the admission of inconsistent out-of-court statements as substantive evidence when the declarant testifies at the relevant trial or hearing and the out-of-court statement is "[o]ne of identification of a person made after perceiving the person." §
90.801(2)(c). See Dep't of Health & Rehabilitative Servs. v. M.B.,
701 So.2d 1155, 1161-62 (1997) ("Under section
90.801(2)(c)......
...Whatever the reason for the inconsistency between a declarant's prior statement of identification and that declarant's trial testimony, the defendant's right to confront witnesses is protected by the availability of the declarant for cross-examination at trial. Conclusion In sum, I conclude that under a fair reading of section 90.801(2)(c) the crucial statements establishing Smith's identity as the perpetrator of the crimes for which he was convicted were properly admissible as substantive evidence and that the error related to the admission of the other portions of the tape-recorded statements was harmless....
...us, and we express no opinion on it. However, we do observe that whether or not these limited segments of the tape-recorded statements might properly have been played for the jury, the better practice would have been to lay a proper foundation under section 90.801(2)(c) and elicit testimony from Detective Brown about the out-of-court identifications instead of playing the audiotapes....
...s. Upon retrial, if the State again seeks admission of these tape-recorded interviews into evidence, we suggest that the trial court consider whether some statements by Smith or the interrogating officers or both should be redacted. See §§
90.403,
90.801-.802; Martinez v. State,
761 So.2d 1074, 1079 (Fla.2000); Worden v. State,
603 So.2d 581, 583 (Fla. 2d DCA 1992). [6] I also note that each statement was made after the declarant was placed under oath by the interviewing detective. Section
90.801(2)(a) provides that prior statements "given under oath subject to the penalty of perjury at a trial, hearing[,] or other proceeding or in a deposition" are admissible as nonhearsay testimony when such statements are inconsistent with the declarant's testimony at trial. Although the recorded statements here were given under oath, it has been held that an interview by an investigating law enforcement officer does not fall within the scope of the "other proceeding[s]" referred to in section
90.801(2)(a)....
CopyCited 11 times | Published | Florida 3rd District Court of Appeal | 1991 WL 87226
...State,
574 So.2d 1185, 1186-87 (Fla. 3d DCA 1991) (Baskin, J., specially concurring). [2] The exception to this rule of inadmissibility, which arises in order to counter a claim of "improper influence, motive, or recent fabrication" against the witness, §
90.801(2)(b), Fla....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2014 WL 223094, 2014 Fla. App. LEXIS 585, 39 Fla. L. Weekly Fed. D 201
...We find the trial court erred in relying on the excited utterances exception in admitting the victim’s hearsay statements. The state also argues that we can affirm the admission of the friend’s testimony regarding the victim’s statement based on the application of the prior consistent statement rule, pursuant to section 90.801(2)(b), Florida Statutes (2010)....
...State,
829 So.2d 901, 906 (Fla.2002) (The tipsy coachman doctrine “allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’ ”) (citations omitted). *318 Under section
90.801(2)(b), Florida Statutes, prior statements of a witness that are “[c]onsistent with the declarant’s testimony and ......
...and is subject to cross-examination concerning the statement.” (emphasis added). “Both conditions must be satisfied to admit a prior consistent statement as nonhearsay.” Graham v. State,
56 So.3d 97, 102 (Fla. 4th DCA 2011). Additionally, “a prior consistent statement is inadmissible under section
90.801(2)(b) if it is made after the witness’ motive to lie arose.” Carter v....
CopyCited 11 times | Published | Supreme Court of Florida | 1994 WL 416719
...in the commission of a sexual battery, §
921.141(5)(d); (4) the capital felony was especially heinous, atrocious, or cruel, §
921.141(5)(h). [2] As stated by Professor Ehrhardt: Technically, evidence of the absence of a record is not hearsay under Section
90.801....
CopyCited 11 times | Published | Florida 1st District Court of Appeal | 1991 WL 54131
...e defense had opened the door to the remark. The jury later found McDonald guilty. The testimony of the victim's friend and the investigating officer as to the victim's version of events clearly constituted prior consistent statements of the victim. Section 90.801(2)(b), Florida Statutes (1989) provides that such statements are not hearsay "if the declarant testifies at the trial ......
...In this case, while cross-examination of the victim did point out inconsistencies in her pre-trial and trial versions of events, there was no indication that she was changing her story at trial, or of improper influence or a motive to falsify. Therefore, the disputed testimony is not admissible under section
90.801(2)(b). However, we find that certain exceptions to the hearsay rule apply. See, e.g., Adams v. State,
559 So.2d 436, 438 (Fla. 1st DCA 1990) (since §
90.801(2)(b) was inapplicable, the witness should not have been allowed to relate his information unless it otherwise met some recognized exception to the hearsay rule)....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 1991 WL 191586
...State,
498 So.2d 906 (Fla. 1986); Van Gallon v. State,
50 So.2d 882 (Fla. 1951); Jenkins v. State,
547 So.2d 1017 (Fla. 1st DCA 1989); McElveen v. State,
415 So.2d 746 (Fla. 1st DCA 1982). The State argues that the statements were properly admitted under section
90.801(2)(b), Florida Statutes *1260 (1987), which sets forth the following exception to the general rule against the admissibility of hearsay: A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cr...
...The attack had already occurred, along with the passage of enough time to permit reflection and possibly the inception of a motive to fabricate. In Quiles v. State,
523 So.2d 1261 (Fla. 2d DCA 1988), the statements made by the victim to an investigating officer were inadmissible under section
90.801(2)(b) for precisely this reason....
...As one of the first witnesses to take the stand, William Cooper testified prior to the victim. Over Keller's hearsay objection, Cooper testified that the victim told him, "I think he tried to rape me." Contrary to the State's assertions, this statement was not admissible under section 90.801(2)(b) because it was offered before the declarant testified. [4] A prior consistent statement is only admissible under section 90.801(2)(b) when (1) the declarant has testified, (2) the declarant has been subjected to cross-examination and (3) the prior consistent statement is used to rebut an express or implied charge of fabrication or improper influence....
CopyCited 10 times | Published | Supreme Court of Florida
evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (2016). Where testimony is not
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 1998 WL 712705
...Additionally, the court erred in excluding, on hearsay grounds, the periodical articles Kiwanis sought to introduce into evidence. The articles were not hearsay because they were not being "offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla....
CopyCited 10 times | Published | Supreme Court of Florida | 2004 WL 2534277
...Moore had been indicted for first-degree murder based on grand jury testimony by two witnesses who later recanted their testimony and testified at trial that they had lied to the grand jury. However, the witnesses' prior inconsistent testimony before the grand jury was introduced as substantive evidence at trial under section 90.801(2)(a)....
...We explained that our previous decision in Moore was dispositive and required a finding that this evidence, standing alone, was insufficient to convict Green. Green,
667 So.2d at 760. We also emphasized that the holding in Moore applied "regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)." Id....
...was charged and convicted. Section
794.011(2)(a), Florida Statutes (2004), provides in pertinent part that "[a] person 18 years of age or older who commits sexual battery upon ... a person less than 12 years of age commits a capital felony...." [6] Section
90.801(2)(a), Florida Statutes (2004), provides that a prior inconsistent statement which has been given under oath at a trial, hearing, or other proceeding is not hearsay "if the declarant testifies at the trial ......
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2014 WL 2197616, 2014 Fla. App. LEXIS 8093
...Citi counters that the court properly admitted the payment history into evidence under the business record exception. Hearsay is defined as “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.” § 90.801 (l)(c), Fla....
CopyCited 10 times | Published | Florida 5th District Court of Appeal
...Banks, the declarant, testified at the hearing and was subject to cross-examination concerning her prior statement to Mrs. Edwards which statement was inconsistent with her testimony at the evidentiary hearing, Mrs. Edwards' testimony as to Mrs. Banks' prior statements was inadmissible as substantive evidence under section 90.801(2)(a), Florida Statutes (1981), because Mrs....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 33 U.C.C. Rep. Serv. (West) 350
...supplants common law pertaining to the inter vivos gift of securities. The holding described by the majority as "universal" appears to be supported solely by the Michigan appellate court in Estate of Zaharion v. Security National Bank, supra . [2] If Mrs. Childrey's letter fell within the definition of hearsay, section 90.801(1)(c), Florida Statutes (1979), it would have been admissible as a statement against her interest....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 2002 WL 1332002
...ible. Similarly, Sullivan's testimony was inadmissible in this case. (3) Remaining Issues The court permitted the playing of Jordan's taped statement to the police because counsel represented that it was a prior consistent statement admissible under section 90.801(2)(b)....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 1989 WL 5674
...trial, the declarant is subject to cross-examination, and the statements are consistent with the declarant's testimony and are offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication. Section 90.801(2)(b), Fla....
...A little bit. Q. Did you she tell what what (sic) was supposedly said back then? A. No. R. 112-13. See also R. 109-10. The implication of improper influence based on facts that occurred after the victim first wrote the notes satisfies the evidentiary rule. Section 90.801(2)(b), Fla....
CopyCited 10 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 133, 2010 Fla. LEXIS 258, 2010 WL 652982
...ly hearsay, but a prior consistent statement may be admitted as nonhearsay if certain conditions are met. Taylor v. State,
855 So.2d 1, 22-23 (Fla. 2003). The trial court found that Mayes' prior consistent statement in this case was admissible under section
90.801(2)(b), Florida Statutes (2008). Section
90.801(2)(b), Florida Statutes, provides that prior statements that are "[c]onsistent with the declarant's testimony and are offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication" are not inadmissible hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement. §
90.801(2)(b), Fla....
...The cross-examination of Mayes impliedly charged that Mayes testified as he did at trial due to improper influence and that his trial testimony was a recent fabrication intended to preserve his plea deal. Both of these grounds are a basis for admission of prior consistent statements under section 90.801(2)(b), Florida Statutes....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal
...ous statements. Because the proffered testimony was not offered to prove the truth of the matter asserted, it was not inadmissible hearsay. See Breedlove v. State,
413 So.2d 1 (Fla.), cert. denied,
459 U.S. 882,
103 S.Ct. 184,
74 L.Ed.2d 149 (1982); §
90.801(1)(c), Fla....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1996 WL 471155
...Finally, the state improperly rehabilitated Romero by establishing that his November, 1992 statement to the police was consistent with his in-court testimony. The contents of the prior statement were hearsay, subject to none of the exceptions contained within section 90.801(2)(b), Florida Statutes (1995)....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 1988 WL 39139
...He only had a bat. Turning to appellant's first point on appeal, we agree with appellant and hold that Officer Chandler's in-court recitation of Heims' version of the events was inadmissible hearsay and was not admissible as an exception to the hearsay rule. §§
90.801(2)(b),
90.803(1),
90.803(2), Fla....
...The state relies on the proposition that an out-of-court statement offered for its truth is not hearsay if it is consistent with the declarant's other testimony and is "offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication." § 90.801(2)(b)....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1994 WL 603150
...State,
420 So.2d 389 (Fla. 5th DCA 1982). The daughter's and neighbor's statements are out-of-court declarations by non-witnesses offered in evidence to prove the truth of the matter asserted, i.e., that Appellant was on her daughter's property without authorization. §
90.801(1)(c), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2007 WL 675354
...wledge who was acting within the regular course of the business activity."). Here, the document admitted into evidence as State's Exhibit 2 contains a sworn statement of the victim recounting details of the car theft. As such, it is classic hearsay. Section 90.801(1)(c) of the Florida Evidence Code defines hearsay as "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." Hearsay includes an out-...
...1993) (pre-trial statement to prosecutor of witness who testified during the trial "was hearsay and therefore inadmissible in the absence of any other exception to or exclusion from the hearsay rule"). Appellant further argues that the victim's affidavit is not admissible as a prior consistent statement under section 90.801(2)(b), because the state did not offer it to rebut an express or implied charge against the victim of improper influence, motive, or recent fabrication....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2004 WL 1635615
...Nevertheless, because the trial court erred in admitting the 911 recording, Mr. Tucker is entitled to a new trial on all counts. [6] On appeal the State has suggested that the statement could have been admitted as a prior consistent statement under section 90.801(2)(b), Florida Statutes (2002) (stating prior consistent statement is not hearsay if declarant testifies at trial and is subject to cross-examination and statement is offered to rebut charge of improper influence, motive, or recent fabrication)....
CopyCited 9 times | Published | Florida 5th District Court of Appeal
...sed from jail and the family would be together again. The State moved to have the grand jury testimony transcribed, and it informed *1034 Webb it intended to use the grand jury testimony as substantive evidence pursuant to the Florida Evidence Code, section 90.801(2)(a), Florida Statutes (1979)....
...lowed it for impeachment purposes, was based on the Florida courts' characterization of such evidence as hearsay. See the cases cited in Smith v. State,
379 So.2d 996 (Fla. 5th DCA 1980). But the Evidence Code changed many of these common law rules. Section
90.801(2)(a) states that a prior inconsistent statement is not hearsay if the person making the statement testifies at trial and is subject to cross-examination, under certain conditions....
...Out of court statements which would not have been admissible before, or would not have been admissible as substantive evidence, now clearly are admissible as substantive evidence under the Code. [5] Webb argues finally that the grand jury testimony does not qualify under section 90.801(2)(a) as testimony given under oath "at a[n] ... other proceeding... ." This wording of section 90.801(2)(a) is virtually identical to the Federal Rule 801(d)(1)(A), [6] which has been construed by *1035 the federal courts to include grand jury proceedings. [7] Indeed, the legislative history of Federal Rule 801(d)(1)(A) virtually dictates this construction. [8] We see no reason not to adopt the same view for Florida's Rule 90.801(2)(a)....
...Further, Webb also failed to make a contemporaneous objection on this ground at trial. [5] See Brown v. State,
413 So.2d 414 (Fla. 5th DCA 1982) (prior inconsistent out of court identification made after perceiving the defendant admissible as substantive evidence if the witness testifies at trial, pursuant to section
90.801(2)(c), Florida Statutes (1981)); Denny v. State,
404 So.2d 824 (Fla. 1st DCA 1981) (prior consistent statement meeting the requirements of section
90.801(2)(b) admissible to rehabilitate trial testimony which has been impeached by prior inconsistent statement)....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 203
...Inasmuch as this case must be retried, we briefly note that appellant's second contention has merit. The testimony of the two customers present at La Coupe at the time of the incident was offered to prove the truth of what transpired in the meeting between Bricker and Torres and, as such, was hearsay testimony. § 90.801(1)(c), Fla....
CopyCited 9 times | Published | Court of Appeals for the Eleventh Circuit | 2008 U.S. App. LEXIS 4013, 2008 WL 482544
...he jury
was permitted to consider evidence that was impermissible under Florida Rules of
Evidence. The Florida Supreme Court disagreed with Petitioner’s arguments,
concluded that Petitioner’s prior inconsistent testimony was admissible under
section 90.801(2)(a) of the Florida Statutes, and affirmed the death sentence.
Thompson, 619 So....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 1989 WL 14486
...peachment. Defendant's attorney rejected the opportunity to have the jury so instructed. (c) There was no error in admitting as substantive evidence other statements of that witness which had been sworn statements to the state attorney's office. See § 90.801(2)(a), Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal
...Here it is argued for the first time that the statement should have been admitted to show that a co-defendant, who pled guilty and who was called as a defense witness, contrary to what the state sought to establish, did not recently fabricate his testimony that the appellant was not a participant in the offense. § 90.801(2)(b), Fla....
CopyCited 9 times | Published | Florida 4th District Court of Appeal | 2002 WL 31757784
...inition of hearsay. Therefore, we also conclude that the trial court decided the issue incorrectly and the admission of the statement was erroneous. As a result, we reverse appellant's conviction and sentence for burglary and remand for a new trial. Section 90.801, Florida Statutes, defines hearsay as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." In addition, the Florida Supreme Court has h...
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 1931
...and render the utterances spontaneous and unreflecting." Lyles v. State,
412 So.2d 458, 460 (Fla. 2d DCA 1982). The hospital clerk's testimony regarding a telephone conversation with a Mrs. Cox should have been excluded as inadmissible hearsay. See §
90.801(1)(c), Fla....
CopyCited 9 times | Published | Florida 1st District Court of Appeal | 1993 WL 96764
...prior physician made to Loper as proof that Loper's knee was so badly damaged prior to the accident that he needed what Dr. Surgnier described as a salvage-type operation reserved for serious knee damage. Unquestionably, this testimony was hearsay. Section 90.801, Fla....
CopyCited 9 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 5942, 36 Fla. L. Weekly Fed. D 869
...Cendrowski. It was the sole corroboration for the husband’s testimony that Prosperitas advanced the husband $150,000. The affidavit, an out-of-court statement offered to prove the truth of the matter asserted, is the most basic form of hearsay. See § 90.801(l)(c), Fla....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 2003 WL 1916693
...ecantation. III. The State argues that Ms. Glenn's original statement that the defendant's telephone statement that he shot the victim should be admissible as a statement by Ms. Glenn "of identification of a person made after perceiving the person." § 90.801(2)(c), Fla....
...Q: Okay, and that is the individual who's your boyfriend named Zay? Is that a yes? *967 A: Yes. Q: And he's the individual who ah ... told you he shot Doc? A: Yes. App. 86. The State points out that in general, identifications from a photo lineup are admissible as substantive evidence under paragraph 90.801(2)(c), Florida Statutes....
...has seen the perpetrator of a crime and later makes an identification from the photo lineup. The police officer who conducted the photo lineup may testify to the identification by the witness and this comes in as substantive evidence under paragraph 90.801(2)(c). In this case, Ms. Glenn told the original detective at the police station that the defendant had telephoned her and admitted shooting the victim. Certainly "perceiving" a person under paragraph 90.801(2)(c) may occur through a voice identification....
...What the State is trying to bring in through the detective, however, is Ms. Glenn's statement to the detective that the defendant admitted shooting the victim. [2] The substance of the defendant's statement to Ms. Glenn goes beyond being a statement of identification for purposes of paragraph 90.801(2)(c). We therefore reject the State's 90.801(2)(c) argument....
CopyCited 9 times | Published | Florida 3rd District Court of Appeal | 1991 WL 45209
...We disagree because, in our view, the aforesaid evidence was admissible as an admission by a party opponent. A As a general rule, hearsay evidence that 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," § 90.801(1)(c), Fla....
...Without dispute, the statement was "offered in evidence to prove the truth of the matter asserted," and, contrary to the plaintiff's contention, was made by Pichardo out of court when he prepared the accident report and thus was not "made by the declarant [Pichardo] while testifying at the trial." § 90.801(1)(c), Fla....
CopyCited 9 times | Published | Florida 5th District Court of Appeal
...Boatman's might not have been because she denied in court ever making the prior identification. However, under the new "Evidence Code" it apparently makes no difference whether the witness admits or denies or fails to recall making the prior identification. Section 90.801(2), Florida Statutes (1981) states that the following kinds of out-of-court statements are not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is: "(c) one...
CopyCited 8 times | Published | Supreme Court of Florida | 10 Fla. L. Weekly 570
...In any event, we disapprove any suggestion that testimony recounting a translated out-of-court conversation is not hearsay. "`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." § 90.801(1)(c), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 2013 Fla. App. LEXIS 16848, 2013 WL 5735321
...e Illinois courthouse. Even if the trial court would have relied on the alleged conversation, we would have determined that the testimony was inadmissible hearsay as it does not fall within any of the exceptions to the admission of hearsay evidence. § 90.801 (l)(c), Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1999 WL 992726
...and his questioning of C.U.'s mother and the detective implied that C.U.'s trial testimony was impaired by recent fabrication. The State asserts that the detective's recounting of C.U.'s statement to him rebutted this implication of recent fabrication. See § 90.801(2)(b), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1993 WL 462759
...on, whereupon Sims stated that the prosecutor had told him that if he testified and told the truth, it could help him. On redirect, defense counsel objected to introduction of Sims's prior consistent statements made the night of the incident, citing section 90.801(2), Florida Statutes....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1989 WL 57226
...On cross-examination by defense counsel, however, many of C.T.'s responses were inconsistent with her previous responses on direct examination. Defense counsel also attempted to impeach C.T.'s credibility by her prior inconsistent statements. See §§
90.614(2),
90.801(2)(a), Fla....
...An out-of-court statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement and the statement is consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication. §
90.801(2)(b), Fla. Stat. (1985). However, in order to properly rebut a showing of improper influence, motive, or recent fabrication under section
90.801(2)(b), the witness's prior consistent statement must have been before the existence of the fact said to indicate his reason to give false testimony at trial. See, e.g., Jackson at 910; Preston v. State,
470 So.2d 836 (Fla. 2d DCA 1985); Quiles v. State,
523 So.2d 1261 (Fla. 2d DCA 1988); Kellam v. Thomas,
287 So.2d 733 (Fla. 4th DCA 1974). Furthermore, as this court has previously noted, section
90.801(2)(b) contemplates an initial attempt on cross-examination to show improper influence, motive, or recent fabrication, and only after such an attempt can evidence of the witness's prior consistent statement be introduced....
...Defense counsel did not even cross-examine C.T.'s aunt or mother regarding the events which led them to learn of C.T.'s allegations. We agree that an out-of-court statement is not hearsay if it has been offered for a purpose other than proving the truth of its contents. See § 90.801(1)(c), Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2006 WL 782483
...THAT RECORD? SHAHOOD and TAYLOR, JJ., concur. NOTES [1] "`Hearsay' is statutorily defined as 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." § 90.801(1)(c), Fla....
CopyCited 8 times | Published | Florida 3rd District Court of Appeal | 1997 WL 90818
...HEARSAY We first address the appellant's contention that the satellite testimony is hearsay. Hearsay is defined as "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," and is excludable because of its unreliability. § 90.801(1)(c), Fla....
CopyCited 8 times | Published | Florida 1st District Court of Appeal | 1993 WL 88631
...The trial court erred as a matter of law in holding the out-of-court declaration of the seller was hearsay, for the testimony was not "offered in evidence to prove the truth of the matter asserted," that is, that the seller actually had a Nissan pickup that was wrecked and from which the rims were salvaged. Section 90.801(1)(c), Florida Statutes (1989); State v....
CopyCited 8 times | Published | Supreme Court of Florida | 1989 WL 65508
...d him is hearsay and cannot be used as proof of the facts contained therein. See C. Ehrhardt, Florida Evidence § 801.2 (2d ed. 1984). The state, relying primarily on Diamond v. State,
436 So.2d 364 (Fla. 3d DCA 1983), argued to the trial judge that section
90.801(2)(a), Florida Statutes (1985), allows a prior inconsistent statement to be received as substantive evidence if the statement was made under oath subject to the penalty of perjury at a hearing or other proceeding or in a deposition, asserting he gave this statement in another proceeding....
...1986), approving
471 So.2d 74 (Fla. 3d DCA 1985). Accord Kirkland v. State,
509 So.2d 1105 (Fla. 1987). In Delgado-Santos, we held that this type of law enforcement investigation and inquiry was not an "other proceeding" under the code and, consequently, section
90.801(2)(a) did not apply....
...EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT and KOGAN, JJ., concur. GRIMES, J., concurs with an opinion, in which EHRLICH, C.J., and SHAW, BARKETT and KOGAN, JJ., concur. GRIMES, Justice, concurring. Clearly, Bennett's prior inconsistent statement did not qualify for admission as substantive evidence under section 90.801(2)(a)....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1992 WL 153956
...The trial court rejected the evidence on the basis that Taylor's testimony about the father's statements to him was hearsay. Legal hearsay is defined as an out-of-court statement offered to prove the truth of the matter contained in the statement. Section 90.801, Fla....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2004 WL 86306
...The trial court's ruling was correct. The name and address on the envelope did not fall within the statutory definition of hearsay. Part of the definition of hearsay is that it is a "statement ... offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2001). The evidence code defines a statement as "[a]n oral or written assertion" or "[n]onverbal conduct of a person if it is intended by the person as an assertion." § 90.801(1)(a)1., 2....
...bility of the evidence, so "minimal in the absence of an intent to assert," did not "justify the loss of the evidence on hearsay grounds." Id. It is also significant that the envelope was offered not to prove "the truth of the matter asserted" under section 90.801(1)(c), but as circumstantial evidence that Hernandez stored his property, including his correspondence, in the bedroom....
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 1994 WL 706279
...In addition, the officer was permitted to testify that a Mr. Robinson, who was not called to testify at trial, gave him a description of the robber which was similar to that given by the victim and Clemons. Defendant objected to all of the officer's testimony about identification as hearsay. Section 90.801(2), Florida Statutes (1993), provides: (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 his testi...
CopyCited 8 times | Published | Florida 4th District Court of Appeal | 2013 WL 4525318, 2013 Fla. App. LEXIS 13681
...That discretion, however, is limited by the rules of evidence. Hayes v. Wal-Mart Stores, Inc.,
933 So.2d 124, 126 (Fla. 4th DCA 2006). 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.” §
90.801, Fla....
CopyCited 8 times | Published | Florida 5th District Court of Appeal | 12 Fla. L. Weekly 2032
...four hours after the burglary. The defendant chose not to testify at trial. The self-serving statements, made under circumstances showing their lack of trustworthiness, are clearly hearsay and are not admissible under any of the hearsay exceptions. § 90.801, Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 2008 WL 3539965
...4th DCA 1987); see also Willis v. State,
669 So.2d 1090 (Fla. 3d DCA 1996). This error was compounded when the same officer was permitted to testify that the confidential informant identified the seller as Mr. Alcantar. That testimony was clearly inadmissible hearsay. See §
90.801(1)(c), Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal | 1994 WL 169467
...State,
588 So.2d 613 (Fla. 2d DCA 1991). The trial court improperly determined that the niece's statements were admissible "just for consistency." The statements were not offered to rebut a charge of "improper influence, motive, or recent fabrication." §
90.801(2)(b), Fla....
CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...murder. [1] The testimony of several of the rebuttal witnesses was that the deceased had told each of them she feared Hunt; she also told them the reasons why she feared him. The statements of the deceased, as related by the witnesses, were hearsay. Section 90.801, Florida Statutes (1981)....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2001 WL 1013594
...State,
415 So.2d 746 (Fla. 1st DCA 1982). The danger in admitting a prior consistent statement in evidence is that the statement might acquire added credibility when it is repeated by a more trustworthy witness. Several exceptions to the general rule are listed in section
90.801(2)(b), Florida Statutes (1999)....
...ess or challenged the truthfulness of the statement given by the witness at trial. See Jenkins v. State,
547 So.2d 1017 (Fla. 1st DCA 1989). The party offering the statement must show that it refutes one of the *1281 particular charges identified in section
90.801(2)(b)....
...her father. He argued that she had done this to get her way on one occasion and might very well be doing it again. In the present case, however, the prior consistent statements were not offered as substantive evidence under the hearsay exclusion in section 90.801(2)(b), but rather to rehabilitate a witness who had been impeached. The circumstances in which a consistent statement may be used to rehabilitate a witness are not limited to those listed in the statute. A statement that is offered to impeach or rehabilitate a witness is not hearsay as defined in section 90.801(1), because it is not offered to prove the truth of the matter asserted....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 14993, 2015 WL 5883607
...as concluding that the in-court testimony of a probation officer about his or her personal observations constitutes hearsay. It is not. Hearsay “is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. See § 90.801(1)(c), Fla. Stat. (2014) (emphasis added), “A ‘declarant’ is a person who makes a statement.” See § 90.801(1)(b), Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1994 WL 583692
...Given the discretion the jury had to award future damages and the evidence in the instant case, it can not be said the jury erred in not awarding appellant future damages. [6] HERSEY, GLICKSTEIN and KLEIN, JJ., concur. NOTES [1] The trial court did not err in excluding the testimony of appellant's expert. See § 90.801(1)(c), Fla....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 2001 WL 121459
...Appellant contends that the trial court erroneously allowed the detective to describe the readouts from the pager and the caller I.D. box, since both were hearsay. The Florida Evidence Code characterizes hearsay in terms of statements made by "persons." Subsection 90.801(1)(c), Florida Statutes (2000), defines hearsay as including an out-of-court "statement" of a declarant. Subsection 90.801(1)(b) defines a "declarant" as a "person who makes a statement." Therefore, only statements made by persons fall within the definition of hearsay. The caller I.D. display and pager readouts are not statements generated by a person, so they are not hearsay within the meaning of subsection 90.801(1)(c)....
...EHRHARDT, FLORIDA EVIDENCE § 801.2 (1999 ed.). This is because neither the pager nor the caller I.D. screen, like a radar or other similar machine able to give a readout, was a "person" capable of being a "declarant" within the definition of the hearsay rule. § 90.801(1)(b), Fla.Stat....
...r cocaine rocks at ten dollars each. Even though this specific objection to the informant's message was not raised at trial, we address it for the purpose of clarification. The informant's numerical communication to the pager was a "statement" under section 90.801(1)(a)2., since it was nonverbal conduct of the informant that was "intended by [him] as an assertion." If this statement had been offered to "prove the truth of the matter asserted"that the informant wanted to purchase four cocaine *533 rocks for $40then the statement would have been hearsay. See § 90.801(1)(c), Fla.Stat....
...Jackson,
208 F.3d 633, 637 (7th Cir.) (holding that web postings were hearsay), cert. denied, ___ U.S. ___,
121 S.Ct. 416,
148 L.Ed.2d 321 (2000). As for the display on the caller I.D., there was no showing that the caller to the hello line intended his dialing of the number to be an "assertion" under section
90.801(1)(a)2....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 1988 WL 48986
...Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter contained in the statement. Breedlove v. State,
413 So.2d 1 (Fla.), cert. denied,
459 U.S. 882,
103 S.Ct. 184,
74 L.Ed.2d 149 (1982); §
90.801(1)(c), Fla....
...rmation upon which a reasonable suspicion is based, but only that the officer justifiably relied upon it. The very definition of "hearsay" is that it is a statement, other than one by the declarant, offered to prove the truth of the matter asserted. § 90.801(1)(c), Fla....
...pment. See Wheeler; Cruz; Sokos. Since the content of the informant's statement was that the appellant had been dealing in stolen property, the statement was in fact used to prove the truth of the matter asserted and, therefore, constituted hearsay. § 90.801(1)(c)....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
...s, we hold the trial court correctly denied Williams' pretrial motion to suppress. As a second issue on appeal Williams challenges admitting into evidence a prior consistent statement of the state's eyewitness. We find the statement admissible under Section 90.801(2)(b), Florida Statutes (1978) and Van Gallon v....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2008 WL 818808
...ay evidence. Id. When testimony concerning the estimated cost of repairs to damaged property is "offered in evidence to prove the truth of the matter asserted," it is "hearsay" unless "made by the declarant while testifying at the trial or hearing." § 90.801(1)(c), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal | 1998 WL 422142
...Four days after the shooting Arlena and Vanessa Burse also made positive identifications. Both detectives testified that, at the time of the photoidentifications, these witnesses showed no hesitation whatsoever. These identifications were admissible as non-hearsay evidence under section 90.801(2)(c), Florida Statutes....
...NOTES [1] The firearms examiner testified, however, that seven shell casings were recovered from the parking lot, all of which came from a single weapon. [2] Since the hearsay exception for excited utterances is applicable, we need not consider whether the physical description would also be admissible as nonhearsay under section 90.801(2)(c), Florida Statutes (1995)....
...7 (1998 ed.). [3] We need not reach the State's argument that the impeaching testimony was also independently admissible as substantive evidence. Defendant correctly argues that a sworn statement to a prosecutor does not qualify as nonhearsay under section 90.801(2)(a), Florida Statutes....
...State,
622 So.2d 991, 997-98 (Fla.1993); State v. Delgado-Santos,
497 So.2d 1199 (Fla.1986). However, Manor's sworn statement reiterating his identification of defendant in the photo lineup was independently admissible as a nonhearsay statement of identification under section
90.801(2)(c), Florida Statutes....
...The trial court took the view that the sworn statement was not hearsay because it was "[c]onsistent with the declarant's testimony and ... offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication ...." § 90.801(2)(b), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1996 WL 2276
...Accordingly, defendant's *1138 judgment and disposition must be reversed. REVERSED and REMANDED. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] §§
893.13(1)(a)1.,
893.03(2)(a)4., Fla. Stat. (1993). [2] §§
893.13(6)(a),
893.03(2)(a)4., Fla. Stat. (1993). [3] See §
90.801(1)(c), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2004 WL 2953312
...ely on the basis of hearsay. Knight v. State,
801 So.2d 160 (Fla. 2d DCA 2001)." `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." §
90.801(1)(c), Fla....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 1996 WL 726850
...g to explain why he reasonably believed that the check he was uttering was valid. If testimony is offered for a purpose other than to prove the truth of the matter asserted, it is by definition not hearsay. State v. Baird,
572 So.2d 904 (Fla. 1990); §
90.801, Fla.Stat....
CopyCited 7 times | Published | Florida 1st District Court of Appeal
...ess was properly served? Appellee Barnett Bank contends that there are two exceptions to the hearsay rule that are applicable. The first is that a statement is not hearsay if it is a statement of identification of a person made after perceiving him. Section 90.801(2)(c), Florida Statutes (1979)....
CopyCited 7 times | Published | Florida 4th District Court of Appeal | 1992 WL 191308
...ime was the prior inconsistent testimony of witness Salley. That, he maintains, could not be considered as substantive evidence against him because it was not given under oath subject to the penalty of perjury at trial or some other *672 proceeding. § 90.801(2)(a), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21766500
...Because Miller called Deputy Buckley as a witness, he lost the right to first and last closing arguments. 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." § 90.801(1)(c), Fla....
CopyCited 7 times | Published | Florida 5th District Court of Appeal | 1991 WL 16299
...Notably, some Florida courts describe the objection to prior consistent statements in dual terms: hearsay and the undesirability of bolstering credibility of trial testimony. See Perez v. State,
371 So.2d 714, 716-717 (Fla. 2d DCA 1979). Under the present Florida hearsay rule, section
90.801(2), Florida Statutes, prior consistent statements, when admissible, are classified as non-hearsay....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2007 WL 3085356
...objected and again moved for mistrial, which the trial court also denied. *979 "`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." § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2012 Fla. App. LEXIS 17889, 2012 WL 4900574
...State,
25 So.3d 49 (Fla. 1st DCA 2009). Thus, we review the issue presented here by the de novo standard of review. Section
90.802 of the Florida Evidence Code states the general rule that hearsay is inadmissible except as provided by statute. Hearsay is defined in section
90.801(l)(c), Florida Statutes as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” See Charles W....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...Neither at trial nor in this appeal has Denny objected to the statement on the ground of improper impeachment. Under proper circumstances, prior consistent statements of a witness are admissible to rehabilitate his trial testimony when that testimony has been impeached by his prior inconsistent statements. See § 90.801(2)(b), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1988 WL 103857
...s were available and should have been subpoenaed and subjected to cross-examination. Hearsay is defined as "a statement, other than one made by a declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Supreme Court of Florida | 1990 WL 179076
...or and thereby decrease Colina's own culpability. Further, it is clear that counsel was not trying to prove the truth of Castro's statement when he asked Colina to testify what Castro said to the person who parked the car near Raymond Spells' house. Section 90.801(1)(c), Florida Statutes (1985), defines hearsay as "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." Because Castro's statements...
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1989 WL 72735
...NOTES [1] Neither Turner's original payroll records reflecting wages paid to appellant, nor copies thereof, were introduced at the hearing. [2] "`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." § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal
...reversed. See Kimbler, supra . ROBERT P. SMITH, Jr., C.J., and ZEHMER, JJ., concur. NOTES [1] This is not a case where a prior statement, made under oath, was introduced as substantive evidence. See Webb v. State,
426 So.2d 1033 (Fla. 5th DCA 1983); §
90.801(2)(a), Fla....
CopyCited 6 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 592, 2013 WL 3466777, 2013 Fla. LEXIS 1421
...I said yeah he probably did choke her. Because how can a 140 pound woman choked a 290— The trial court excluded the testimony. Hearsay is defined as an out-of-court statement being offered into evidence to prove the truth of the matter asserted. See § 90.801(l)(c), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1988 WL 6401
...denied,
484 So.2d 7 (Fla. 1986), appellant's attack upon the credibility of the child was based upon the alleged influence of the mother on the victim, therefore the victim's prior consistent statements to her mother were admissible under the provisions of section
90.801(2)(b), Florida Statutes (1985)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1992 WL 4083
...While we have already determined that reversal is required for other reasons, we briefly address this issue. Bolstering a nonparty witness' testimony through introduction of prior consistent statements is precluded except as permitted under the Evidence Code. See § 90.801, Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2005 WL 387541
...diagnosed, she was to instruct the patient to go directly to the emergency room. "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. § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 19940, 2010 WL 5540943
...His lack of memory surprised the prosecutor, who sought to admit the testimony of Investigator *54 Kyle Troop, to whom Combs had confessed and implicated defendant three months after the crime. Over objection, the court admitted Investigator Troop's testimony as nonhearsay under section 90.801(2)(c), Florida Statutes (2006), which provides that if the declarant testifies at trial, a statement is not hearsay if it is "[o]ne of identification of a person made after perceiving the person." This exception applies if the declaran...
...Investigator Troop said that Combs had recounted the facts surrounding the robbery, and told him defendant and Bellamy were the two other men involved. This did not constitute an identification made shortly after perceiving defendant, but was instead an accusatory statement to the police implicating an accomplice. Section 90.801(2)(c) does not apply in this kind of situation to render it non-hearsay....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2005 WL 3478353
...We hold that Detective Jenkins' opinion testimony as to the consistency of B.D.'s and Hollner's statements was inadmissible hearsay. 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." See § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2005 WL 3479848
...We, therefore, review the evidence introduced in order to determine whether the statement is in fact hearsay and, if so, whether its introduction at trial requires reversal. Hearsay is an out-of-court statement by a non-testifying declarant, which is offered to prove the truth of the matter asserted. § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 1992 WL 367329
...Player's report to the Dean was admitted into evidence at the hearing not for its truth, but as rebuttal evidence to show that Player was diligent in conducting his investigation. There is no indication whatsoever in the record that the report was relied on for its truth. Therefore, the report is not hearsay. § 90.801(1)(c), Fla....
CopyCited 6 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 693, 2011 Fla. LEXIS 2798, 2011 WL 5984446
...If the evidence would have been admissible, counsel cannot be deficient for stipulating to it. Further, Parker would be unable to demonstrate prejudice. Detective Powers’ statements in the stipulated record regarding whether Parker initiated contact are hearsay. See § 90.801(l)(c), Fla....
CopyCited 6 times | Published | Florida 5th District Court of Appeal
...However, at trial, he testified that while he and Robinson were in the neighborhood when the crime occurred, they did not try to steal the motorcycle. The state, over Robinson's objection, introduced Lesiak's sworn statement as substantive evidence. Section 90.801, Florida Statutes (1983), provides in relevant part as follows: (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) In...
...trial, hearing, or other proceeding or in a deposition." Lesiak did testify at trial and was subject to cross-examination concerning the statement, thus satisfying the first part of the statute. A statement not given under oath is inadmissible under section 90.801(2)(a) as substantive evidence....
...tes (1983). [1] See generally *483 Schramm v. State,
374 So.2d 1043 (Fla.3d DCA 1979). The remaining question is whether a police interrogation, which is not "a trial, hearing, or ... deposition" comes within the phrase "other proceeding" as used in section
90.801(2)(a)....
...r oath to a state attorney was admissible as substantive evidence under the statute. [2] Be that as it may, there are no cases in Florida dealing with whether a police interrogation may qualify as an "other proceeding." However, since the wording of section 90.801(2)(a) is virtually identical to Federal Rule of Evidence 801(d)(1)(A), reference may be made to cases decided under that rule to assist on this point....
...s not presented in a police interrogation context and it is this, along with the oath, which tends to assure the trustworthiness of the statement. It is difficult to believe that Congress, in enacting Rule 801(d)(1)(A) or our legislature, in passing section 90.801(2)(a) intended police questioning, such as occurred here, to be equated with a trial or grand jury proceeding....
...The record reveals that a police officer helped Lesiak write the statement and Lesiak claimed at trial that the contents of the statement were dictated to him. Given the setting under which the statement was made and its questionable reliability, we conclude that the prior inconsistent statement did not comply with section 90.801(2)(a) and hence was not admissible as substantive evidence....
...ed, and held in circumstances of some legal formality.
537 F.2d at 1058. [4] Washington's rule regarding admissibility of prior inconsistent statements was taken verbatim from Federal Rule of Evidence 801(d)(1)(A) and hence is virtually identical to section
90.801(2)(a).
CopyCited 6 times | Published | Florida 3rd District Court of Appeal
...While Perry correctly reflects the common law rule applicable when it was decided, the issue is now controlled by the Evidence Code, which became effective after the trial in Perry but before the present one. See In re Florida Evidence Code,
376 So.2d 1161 (Fla. 1979). Section
90.801, Florida Statutes (1981), provides in pertinent part: (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...
...State,
428 So.2d 318 (Fla. 1st DCA 1983); Law Revision Council Note, 6C F.S.A. 238-39 (1976); see California v. Green,
399 U.S. 149,
90 S.Ct. 1930,
26 L.Ed.2d 489 (1970); see also, State v. Freber,
366 So.2d 426 (Fla. 1978). Since, by its terms, Sec.
90.801(2)(a) is applicable only when the declarant "testifies at the trial ......
...and is subject to cross-examination," Diamond must be permitted to call Hengst to the stand during his case. When and if, as expected, Hengst testifies that the defendant had guilty knowledge of the drugs, Diamond may then introduce the sworn statement, [2] which is "[i]nconsistent with [that] testimony," under Sec. 90.801(2)(a)....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 2004 WL 784479
...al and is subject to cross-examination concerning the statement; and (2) the statement is offered in an effort to rebut an express or implied accusation of improper influence, motive or recent fabrication. See Chandler,
702 So.2d at 197-98; see also §
90.801(2)(b), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 14233, 2011 WL 3962910
...As noted above, this issue is not properly before us for resolution in this appeal. [9] We note that testimony by Detective Fowler at trial concerning the information he collected from the pharmacies and the doctors during his investigation of Mr. Mullis would constitute hearsay. § 90.801, Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 13316, 2010 WL 3477461
...The state, in turn, argues that the GPS data was admissible under the business records exception to the hearsay rule. 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." § 90.801(1)(c), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1991 WL 224977
...ually competent evidence on this issue." The appellee's hearsay objection to the police reports was not well-founded since the reports were not offered to prove the truth of the matters contained therein and thus, they were not hearsay as defined in section 90.801(1)(c), Florida Statutes....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 2282
...after the accident was admissible as substantive evidence at a trial in which Mattie testified and recanted said statement. There appear to be two views concerning admissibility under this factual scenario. One view is that a proper construction of section 90.801(2)(a), Florida Statutes (1983), precludes admissibility of a sworn statement made in a police station setting, since that is not a "proceeding" within the meaning of the statute....
...(1981) ("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."); Maugeri v. State,
460 So.2d 975 (Fla. 3d DCA 1984). In the absence of such a provision in
90.801(2)(a), the Robinson-Smith rationale, rendering a "reliable" statement admissible although there would otherwise be no "proceeding," would amount to the enactment of a catch-all or umbrella exception for the admission of trustworthy hearsay which does not fall within any of the specific exceptions....
...This principle is contained in the federal rules, 804(b)(5), but was pointedly not adopted in Florida.
471 So.2d at 79. We hold that the prior inconsistent statement was not admissible as substantive evidence because it does not fall within the exception to the hearsay rule set forth in *1283 section
90.801(2)(a), Florida Statutes (1983), since the statement was not given at trial, hearing, or other proceeding or in a deposition; it was given at the police station....
...Therefore, we certify to the Supreme Court of Florida the following question: IS THE SWORN INCONSISTENT STATEMENT OF A WITNESS MADE IN A POLICE STATION ADMISSIBLE AS A STATEMENT GIVEN IN AN "OTHER PROCEEDING" SO AS TO BE ADMISSIBLE AS SUBSTANTIVE EVIDENCE, PURSUANT TO SECTION 90.801(2)(a), FLORIDA STATUTES (1983), IN A SUBSEQUENT TRIAL OR JUDICIAL PROCEEDING AT WHICH THE WITNESS TESTIFIES AND IS SUBJECT TO CROSS EXAMINATION? HERSEY, C.J., and ANSTEAD, LETTS, DELL, WALDEN, GUNTHER and STONE, JJ., concur....
...Moreover, I question the majority's interpretation of the legislative history of the federal rule. In my view, the Fifth District Court of Appeal displayed restraint and wisdom in Robinson v. State,
455 So.2d 481 (Fla. 5th DCA 1984), by adopting a case by case basis for determining the admissibility of statements under section
90.801(2)(a), Florida Statutes (1985); and there was statutory authority for their doing so....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2000 WL 1671517
...ll out his knife or threaten her with it). The state's failure to offer that evidence does not appear to have been harmful to the state. Because these purported prior inconsistent statements were not made under conditions meeting the requirements of section 90.801(2)(a), Florida Statutes, they remained hearsay....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 1998 WL 821725
...*881 Finally, we consider Fernandez's contention that the court abused its discretion in allowing the detective to testify as to the car owner's identification of the defendant as the person who stole her car. Ordinarily, a statement of identification is not hearsay, § 90.801(2)(c), Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal
...Circumstantial evidence is not hearsay. The former is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist. Davis v. State,
90 So.2d 629 (Fla. 1956). Hearsay, on the other hand, is defined by section
90.801(c), Florida Statutes (1983) as: [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....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2012 WL 1605268, 2012 Fla. App. LEXIS 7208
...While this may be true, it cannot be competent evidence to support a finding that Anais Suarez gave contradictory testimony in her two depositions. At trial, for example, Benihana would not be able to impeach Anais Suarez's testimony by introducing the prior inconsistent statement of Jose Suarez. See § 90.801(2)(a), Fla....
CopyCited 5 times | Published | Florida 3rd District Court of Appeal
...Since the statement was specifically not admitted to prove the truth of its contents, that is, the accuracy of the medical opinion that the plaintiff must avoid future strain, it should not technically be regarded as "hearsay" at all. See Lombardi v. Flaming Fountain, Inc.,
327 So.2d 39 (Fla. 2d DCA 1976); §
90.801(1), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 1994 WL 178051
...s testimony because it was inadmissible hearsay that improperly bolstered the victim's credibility. Given the significance placed on the victim's credibility, this error cannot be deemed harmless. State v. DiGuilio,
491 So.2d 1129, 1135 (Fla. 1986). Section
90.801, Florida Statutes (1993), defines hearsay as "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." The State argues that Bourg did n...
CopyCited 5 times | Published | Supreme Court of Florida | 2008 WL 450398
...ct that the State offered the DOC release-date letter to prove Mr. Yisrael's release date for his predicate felonies, which were convictions *496 for arson and robbery. Furthermore, there is no dispute that the letter constituted a "statement" under section 90.801(1)(a)(1), Florida Statutes (2004)....
...Therefore, the DOC release-date letter is a classic example of hearsay: "Hearsay is defined as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted." Banks v. State,
790 So.2d 1094, 1097 (Fla.2001) (citing §
90.801(1)(c), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2007 WL 258144
...The circuit court specifically found that his explanation was not credible. Even so, this document was not sufficient to support the circuit court's finding that the parties had engaged in violence in the children's presence. Obviously, the document was hearsay. § 90.801(1), Fla. Stat. (2005). Section 90.801(2)(a) provides an exception to the hearsay rule if the declarant testifies at trial, is subject to cross-examination concerning the statement, and "the statement is inconsistent with the declarant's testimony and was given under oath s...
...did testify, and he disavowed his prior written assertion that L.R.'s violence had taken place in the children's presence. Thus, his written statement in support of the request for a domestic violence injunction against L.R. was a prior inconsistent statement. But the statement was not made in the manner described in section 90.801(2), i.e., under oath in a trial or other proceeding. Therefore, it did not meet the requirements of the section 90.801(2)(a) hearsay exception and was not admissible as substantive evidence....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1997 WL 23144
...We agree with appellant that the testimony sought to be elicited from Walker regarding statements made by the detective and the FBI agent was not hearsay, because it was not being "offered ... to prove the truth of the matter asserted." Fla.Evid. Code § 90.801(1)(c). As we have said in the past: Section 90.801(1)(c), Florida Statutes, defines "[h]earsay" as "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 " (emphasis added)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2005 WL 292441
...Dendy also challenges the admission of a tape recording Charafardin made after the acid attack. At trial, the defense raised at least the implied charge that Charafardin fabricated a story in return for leniency. The prior statement was therefore admissible as a prior consistent statement under section 90.801(2)(b), Florida Statutes (2002)....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2007 WL 601606
...The State argues that the testimony appellant complains of does not meet the statutory definition of hearsay. Hearsay is defined by statute as "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." § 90.801(1)(c), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 2013 WL 692821, 2013 Fla. App. LEXIS 3142
...TWICK, J. Richard Jenkins challenges his conviction and sentence for burglary with an assault. Appellant raises several issues on appeal, only one of which merits discussion. Because the trial court erred in admitting certain hearsay testimony under section 90.801(2)(c), Florida Statutes (2010), and the admission of this testimony was not harmless beyond a reasonable doubt, we reverse and remand for new trial....
...Over defense counsel’s objections, the victim testified that Mr. West told her that he had “just seen ‘Richard’ riding his bike up in the streets.” The trial court found that Mr. West’s statement to the victim qualified as a statement of identification pursuant to section 90.801(2)(c), Florida Statutes....
...of discretion. McCray v. State,
919 So.2d 647, 649 (Fla. 1st DCA 2006). A court’s discretion, however, is limited by the evidence code and applicable case law; and a court’s erroneous interpretation of these authorities is reviewed de novo. Id. Section
90.801(2)(c) provides: (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: [[Image here]] (c) One of identification of a person made after perceiving the person. §
90.801(2)(c), Fla....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 1989 WL 12444
...cause of action based on original evidence presented to the court in a de novo trial. For these reasons, in addition to those discussed in the court's opinion, I join in reversing the summary judgment and remanding for further proceedings. NOTES [1] Section 90.801(1)(c), Florida Statutes (1983), provides: "`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." [2] Our conclusion in t...
CopyCited 5 times | Published | Florida 3rd District Court of Appeal | 2008 Fla. App. LEXIS 20383, 2008 WL 5411980
...the hearsay rule). Because the record establishes that A.V.'s prior statements were introduced to rehabilitate A.V. from Fleitas's implied argument of "improper influence, motive or recent fabrication," we find that they were admissible. Pursuant to section 90.801(2)(b), Florida Statutes (2007), a prior consistent statement is not hearsay if (1) "the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement" and (2) "the statement is 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." (emphasis added). [5] Here, the State *357 met the first element of section 90.801(2)(b) because A.V., the declarant, testified at trial and was subject to cross-examination....
...mands application of the fundamental error doctrine. [4] The admissibility of evidence by a trial court will not be disturbed on appeal absent an abuse of discretion. Johnston v. State,
863 So.2d 271, 278 (Fla.2003). [5] We note that the State under section
90.801(2)(b) is not required to show both improper influence and recent fabrication. Section
90.801(2)(b) provides for the admissibility of a prior consistent statement upon a showing of either circumstance....
CopyCited 5 times | Published | Florida 1st District Court of Appeal | 12 Fla. L. Weekly 114
...State,
162 So.2d 922 (Fla. 1st DCA 1964); Holliday v. State,
389 So.2d 679 (Fla. 3rd DCA 1980); Perez v. State,
371 So.2d 714 (Fla. 2d DCA 1979). This general rule is subject to exceptions, however, and the exception pertinent to this particular issue is set forth in Section
90.801(2)(b) of the Evidence Code, which provides in relevant part: (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: (b) Consi...
....2d at 924. Although in this case, the record reflects the victim's prior consistent statements were admitted under the spontaneous statement exception to the hearsay *322 rule, we conclude the statements were equally admissible as non-hearsay under Section 90.801(2)(b), to refute a charge of recent fabrication....
...The victim's credibility was attacked on cross examination, particularly with reference to her testimony concerning the knife allegedly employed in the robbery. Accordingly, the victim's prior consistent statements were admissible as non-hearsay under Section 90.801(2)(b) to refute a charge of recent fabrication....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...Adverting now to the merits of the appellate question, we hold that the cases decided before the advent of the Florida Evidence Code, which held that prior inconsistent statements could not be admitted as substantive evidence but only for impeachment, are now modified by Section 90.801(2)(a), Florida Statutes (1981), which provides: "(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning *922 the statement and the statement is: (a) Inconsistent...
...The historical background for this change in the rule is set forth in the Notes of Advisory Committee on Proposed Rules, Fed.Rules Evid.Rule 801, 28 U.S.C.A. 528-531; however its inclusion would unduly lengthen this opinion. It should suffice to consider the commentary to Section 90.801, Florida Statutes, which, in pertinent part, states: Paragraph (a) This paragraph excludes from the definition of hearsay certain out-of-court statements by a witness who testifies at the trial or hearing and is subject to cross-examination....
...1930,
26 L.Ed.2d 489 (1970); DiCarlo v. United States,
6 F.2d 364 (2d Cir.1925); United States v. DeSisto,
329 F.2d 929 (2d Cir.1964). Accordingly, the State, in this case, is not without substantive evidence of the crime, which may be considered by the jury if the requirements of Section
90.801(2)(a) are complied with....
CopyCited 5 times | Published | Supreme Court of Florida
...For instance, Detective Cayenne’s
testimony that Hitt suggested that getting Defendant’s DNA from
cheek swabs would be better than trying to obtain his DNA from the
straw hat he wore at work was not presented for the truth of the matter
asserted. § 90.801, Fla....
...by a declarant”). Likewise, Detective Cayenne testified that DNA expert Jason
Hitt suggested that it would be better to gather DNA from cheek swabs rather than
a straw hat. This statement was not offered for the truth of the matter asserted.
See § 90.801(1)(c), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 18811, 2015 WL 8950643
...e defense’s opening statement and both parties’ closing arguments. The Florida Statutes defines hearsay as a statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted. § 90.801(l)(c), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 2756
...ct the witness to avoid giving testimony contrary to the order in limine. The court gave the jury a cautionary instruction to disregard Holloway's statement but denied appellant's motion for mistrial. The disputed testimony was inadmissible hearsay. § 90.801(1)(c), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1988 WL 80905
...The jury found Bianchi guilty, and the trial judge denied Bianchi's motion for new trial. This court recently held that an investigating officer generally cannot testify to a prior consistent statement of a witness. Quiles v. State,
523 So.2d 1261 (Fla. 2d DCA 1988). The one exception to this rule is section
90.801(2)(b), Florida Statutes (1985) which provides: (2) A statement is not hearsay if the declarant testified at the trial or hearing *1311 and is subject to cross-examination concerning the statement and the statement is: (b) Consistent wi...
...or implied charge against him of improper influence, motive, or recent fabrication. .. . First, we note that Bowman was allowed to testify to these prior consistent statements of Blake, Le, and Nguyen before they had testified. It would appear that section 90.801(2)(b) envisions the cross-examiner attempting to show improper influence, motive, or recent fabrication on the part of the testifying witness....
...State,
500 So.2d 519 (Fla. 1986); Bell v. State,
473 So.2d 734 (Fla. 2d DCA 1985), approved in,
491 So.2d 537 (1986). The state should have called these witnesses, awaited the cross-examination, and thereafter attempted to utilize the prior consistent statements under section
90.801(2)(b). While section
90.801(2)(b) provides that a prior consistent statement is not objectionable if it is offered to rebut an express or implied charge of improper influence, motive, or recent fabrication, the statement must be "made prior to the existence of a...
CopyCited 5 times | Published | Florida 1st District Court of Appeal
...impeached by evidence of his prior inconsistent Michigan statement as set forth in Section
90.608(2), Florida Statutes (1981). Appellant contends that since his Michigan statement was not given under oath in some court proceeding, the provisions of Section
90.801(2)(a) do not apply, and the testimony concerning the statement should have been excluded under the rule that a prior inconsistent statement may not be admitted as substantive evidence, but only for impeachment....
...State,
362 So.2d 689 (Fla. 2nd DCA 1978); Perry v. State,
356 So.2d 342 (Fla. 1st DCA 1978); Pitts v. State,
333 So.2d 109 (Fla. 1st DCA 1976); and Rankin v. State,
143 So.2d 193 (Fla. 1962). Admittedly, Hoffman's Michigan statement was not admissible under Section
90.801(2)(a) since it was not given under oath....
...but for the reason that there was testimony that he had made similar statements under oath in his subsequent deposition in the instant case. Evidence of such sworn statements is not regarded as hearsay and is admissible as substantive evidence under Section 90.801(2)(a)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1999 WL 641445
...l court found that the proffered statement was hearsay and refused its admission. Hearsay is a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2001 WL 417308
...judge rather than the jury. We affirm both the conviction and the sentence. We agree with Simmons that the trial judge erred in admitting the detective's testimony as "identification" testimony, properly excluded from the definition of hearsay under section 90.801(2)(c), Florida Statutes (1999)....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal
...arsay. We dispose of the second point as being totally without merit. Petitioner's first point is meritorious and requires reversal of his termination. The testimony of a witness against him in the federal criminal trial did constitute hearsay under Section 90.801(1)(c), Florida Statutes (1983), since it was "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." The dispositive question is whether such testimony was admissible in the administrative hearing....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 728887
...that Presley was stopped because he met that description. This BOLO, which contained an out of court description of the perpetrator, constituted inadmissible hearsay and should not have been admitted. See Puryear v. State,
810 So.2d 901 (Fla. 2002); §
90.801(2)(c), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 639
...ssible over objection in civil actions. This paragraph applies only to proceedings under s.
120.57. The proceeding in question was under section
120.57. We recognize that the original sworn statement to the investigator would not be admissible under section
90.801(2), Florida Statutes (1983) [2] were this not a proceeding under the APA....
...DOWNEY and LETTS, JJ., concur. NOTES [1] The filing of exceptions to the hearing officer's recommended order is not, as contended by respondent, a prerequisite to review by an appellate court. Ace Delivery Service v. Boyd,
100 So.2d 417 (Fla. 1958). [2] Section
90.801(2)(a) provides: (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 his testimony and was given unde...
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 1707986
...sue was nonhearsay rather than hearsay admissible under section
90.803(3)(a)2). "`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." §
90.801(1)(c), Fla....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 9869, 2010 WL 2670881
...3d DCA 1989). Arce argues the disputed document in this case is that counter-evidence. We respectfully disagree. The transcription on which Arce relies to create an issue of fact is, in fact, an inadmissible hearsay statement unless an exception applies. See § 90.801(c), Fla....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 1996 WL 426428
...The appellant's probation was revoked based solely upon hearsay, which included the testimony of a police officer concerning a witness's identification of appellant as the perpetrator of the crime of exposure of sexual organs. This constituted hearsay because the witness did not testify at the revocation hearing. § 90.801(2)(c), Fla....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2002 WL 53877
...LaFleur's out-of-court identification because she was essentially unavailable for cross-examination at trial due to her failing memory. There was no error in admitting the prior identification. Mrs. LaFleur's out-of-court identification was admissible as a statement of identification pursuant to section 90.801(2)(c), Florida Statutes (2000). Section 90.801(2)(c) provides that an out-of-court statement of identification made after the declarant perceives the individual is not hearsay....
...en when the identifying witness cannot make an in-court identification). A.E.B. argues that Mrs. LaFleur's identification was inadmissible because she was essentially unavailable for cross-examination due to her memory loss. We disagree. In applying section 90.801(2)(c), Florida courts have held that the declarant need not make an in-court identification of the defendant, nor even confirm that the prior identification was made....
...State,
448 So.2d 613, 614 (Fla. 3d DCA 1984) (finding prior identification admissible even though declarant testified at trial that he possessed neither past nor present ability to identify defendant). Therefore, in order to admit prior identification testimony under section
90.801(2)(c), it is only necessary that the declarant testify at trial and be subject to cross-examination....
...ve in whatever way, and to whatever extent, the defense might wish." Id. at 559,
108 S.Ct. 838 (citing Kentucky v. Stincer,
482 U.S. 730, 739,
107 S.Ct. 2658,
96 L.Ed.2d 631 (1987)). In interpreting Federal Rule of Evidence 801(d)(1)(C), after which section
90.801 is patterned, the Owens court held that the declarant must merely be available for cross-examination concerning the statement and need not give consistent testimony at trial....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2000 WL 24888
...1st DCA 1990) (holding witnesses' testimony offered to vouch for credibility of another is inadmissible). The State argues that Detective Beining's testimony as to the alleged confession of Mr. Szuba to Mr. Gibson is not hearsay because it is a prior consistent statement, and thus admissible under section 90.801(2)(b), Florida Statutes (1997)....
CopyCited 4 times | Published | Supreme Court of Florida | 33 Fla. L. Weekly Supp. 577, 2008 Fla. LEXIS 223, 2008 WL 5083515
...t that the State offered the DOC release-date letter to prove Mr. Yisrael’s release date for his predicate felonies, which were convictions for arson and robbery. Furthermore, there is no dispute that the letter constituted a “statement” under section 90.801(1)(a)(1), Florida Statutes (2004)....
...Therefore, the DOC release-date letter is a classic example of hearsay: “Hearsay is defined as a statement, other than one made by the declar-ant while testifying at trial or hearing, offered to prove the truth of the matter asserted.” Banks v. State,
790 So.2d 1094, 1097 (Fla.2001) (citing §
90.801(1)(c), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...tie's Nursery had informed him, recited: Thus, it must be concluded that the claimant, in fact, had not applied for work at Nettie's nursery, as testified. *333 The testimony of the investigator was obviously hearsay under the rules of evidence. See Section 90.801, Florida Statutes (1981)....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2000 WL 1873054
...A jury found Kevin Puryear guilty of robbery, as a lesser included offense of robbery with a weapon. We write to address one issuewhether the victim's out-of-court descriptions of her assailant shortly after the robbery were admissible as non-hearsay under section 90.801(2)(c), Florida Statutes (1999), as statements of "identification of a person," where the victim testified at trial and was subject to cross-examination....
...Puryear challenges the trial court's overruling of his hearsay objections, allowing both Detective Wardlaw and Cratsenberg to relate to the jury the details of the victim's description of the robber given on the day of the crime. At issue is the proper application of section 90.801(2)(c), Florida Statutes (1999)....
...ring and is subject to cross-examination concerning the statement and the statement is: * * * (c) One of identification of a person made after perceiving the person. Id. Since the victim testified at trial and was subject to cross-examination, under section 90.801(2)(c) her out-of-court statements to her boyfriend and the detective would be non-hearsay if they qualify as ones of "identification of [Puryear] made after perceiving" him. Id. Analysis is complicated by cases from the Florida Supreme Court and this court falling on opposite sides of the issue. The disagreement centers on whether a "statement ... of identification" under section 90.801(2)(c) is broad enough to include the details of the declarant's out-of-court description of a person, or whether that section is limited to the declarant's mere designation of a person as the one who committed the crime or other act at issue in the trial. The supreme court construed section 90.801(2)(c) in a first degree murder case, Swafford v....
...The trial court excluded both the bulletin and the testimony on the ground of hearsay. See id. The supreme court held that the police bulletin and the testimony of the officer who prepared it was hearsay because neither was a statement of identification under subsection
90.801(2)(c): This position [that the proposed testimony was nonhearsay] is erroneous because a description is not an identification. An "identification of a person after perceiving him," subsection
90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived. The witness in this case never made an identification of the person he had seen; he only gave a description. This testimony does not meet the definition of "identification" as used in subsection
90.801(2)(c). Swafford,
533 So.2d at 276 (citations omitted). [1] *850 While Swafford might appear to contain the definitive interpretation of section
90.801(2)(c) as it applies to a declarant's description of a person, the supreme court reached a different conclusion in another first degree murder case, Power v....
...The supreme court first held that the statement was "probably admissible" under the excited utterance exception to the hearsay rule, section
90.803(2), Florida Statutes (1989). Id. Without equivocation, the court found the statement admissible under section
90.801(2)(c): Additionally, the statement regarding the reddish hair was admissible non-hearsay as one of identification of a person made after perceiving him. See Sec.
90.801(2)(c)....
...oncerning the statement. Id. The supreme court also wrote that even if the statement were erroneously admitted, "any error was harmless." Id. Power did not cite to Swafford. Like the supreme court, this court has reached different interpretations of section 90.801(2)(c)....
...4th DCA 1994), a police officer called to the scene of a robbery testified over objection that an eyewitness had "described the robber as wearing an orange shirt and brown pants" and that the "victim gave a similar description." Id. at 1017. Applying section 90.801(2)(c), we held that the "identification statements of the victim and [the eyewitness] to the officer were not inadmissible as hearsay, since they testified at trial." Id....
...The victim testified at trial and identified the defendant as the intruder. See id. at 114. Over the defendant's hearsay objection, the "officer was permitted to testify as to [the] victim's description of the intruder on the date of the incident." Id. Citing to Swafford, we held that the exclusion from hearsay found in section 90.801(2)(c) did not apply because the officer testified to the victim's description of the intruder....
...f ... identification" within the meaning of the statute. See id. Davis contains no reference to either Harrell or Power, both decided after Swafford. Power and Swafford cannot be reconciled. Power holds that description testimony is admissible under section 90.801(2)(c)....
...See Power,
605 So.2d at 862. Swafford holds that a declarant's description of a person is not an "identification of a person after perceiving him" within the meaning of the rule. Swafford,
533 So.2d at 276. Swafford involved a defendant's reliance on section
90.801(2)(c); in Power the state offered testimony under that section of the evidence code....
...Similarly, Swafford interprets a statement of identification as: a designation or reference to a particular person or his or her photograph and a statement that the person identifies is the same person previously perceived.
533 So.2d at 275. Swafford presents the typical situation contemplated by section
90.801(2)(c)one where the victim sees the assailant shortly after the criminal episode at a line-up, show-up, photo array, or chance encounter and says, "That's the [person]." Stanford v....
...of fear refuses to acknowledge his previous identification." United States v. Elemy,
656 F.2d 507, 508 (9th Cir.1981) (citation omitted). On the other hand, there is also a body of law concluding that to allow description testimony of a person under section
90.801(2)(c) does not do violence to the policy behind the rule....
...)); State v. Woodbury, 127 Idaho 757, 905 P.2d 1066, 1068-69 (App.1995). But see State v. Jenkins, 168 Wis.2d 175, 483 N.W.2d 262, 267-68 (App.1992) (citing Swafford and holding a description is not an "identification"). Under either construction of section 90.801(2)(c), the reasons for admitting identification statements as non-hearsay are that (1) the earlier, out-of-court identifications are believed to be more reliable than those made under the suggestive conditions prevailing at trial and (2) the availability of the declarant for cross-examination eliminates a significant danger of hearsay testimony. See Fed.R.Evid. 801(d)(1)(c) (Advisory Committee Notes); § 90.801, Fla.Stat.Ann....
...WARNER, C.J., DELL, GUNTHER, STONE, POLEN, KLEIN, STEVENSON, SHAHOOD and HAZOURI, JJ., concur. TAYLOR, J., concurs specially with opinion. FARMER, J., dissents with opinion. TAYLOR, J., concurring specially. I agree with the majority that we are bound by the Florida Supreme Court's most recent interpretation of section 90.801(2)(c), Florida Statutes, in Power v....
...Although Power does not mention Swafford in deciding the admissibility of a witness' description of a suspect, it undeniably adopts a view of "identification" testimony that is directly contrary to Swafford's. I think that the better view to follow is the literal interpretation of section 90.801(2)(c) set forth in Swafford....
...ors to reduce the risk of mistaken identification. Given the well-documented dangers inherent in eyewitness identifications generally, and cross-racial identifications specifically, I would urge the supreme court to stay with Swafford and not extend section 90.801(2)(c) to cover situations where a witness provides only a description of a suspect....
...ting the earlier decision or in language that cannot be misunderstood as indisputably receding from the former, even if unmentioned by name. Plainly that is not what is involved here. Second, even if I were free to choose the correct construction of section 90.801(2)(c) I would not conclude that the legislature also intended to exclude descriptions from the hearsay rule....
...The opinion states that the police bulletin was "derived" from the witness' description. If the officer did not hear the declarant's statements himself, then the testimony was objectionable, since it presented an unresolved double hearsay problem. Under section 90.801(2)(c), Florida Statutes (1999), the declarant making the identification "must do so based on his or her personal knowledge of the individual identified and not upon the statement of another." CHARLES W. EHRHARDT, FLORIDA EVIDENCE § 801.9 (2000 ed). [2] Section 90.801(2)(c), Florida Statutes (1999) is identical to Federal Rule of Evidence 801(d)(1)(c)....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 1996 WL 736594
...ictim's statements to them, the defense attorney objected on the basis that those statements were improper hearsay. The court overruled the objection on the ground that these were non-hearsay "prior consistent statements" and admitted the testimony. Section 90.801(2)(b), Florida Statutes (1995), provides that a statement is admissible if the declarant testifies at trial, is subject *258 to cross-examination, the declarant's statement is consistent with the testimony offered at trial and is offer...
CopyCited 4 times | Published | Florida 4th District Court of Appeal
...ion. Appellant moved to dismiss the indictment on the grounds that no evidence existed to establish that he committed the murder. The trial court granted the motion and the State appealed. This court reversed and held that the Florida Evidence Code, Section
90.801(2)(a) authorizes the use of prior inconsistent statements as substantive evidence. State v. Moore,
424 So.2d 920 (Fla. 4th DCA 1982). Appellant petitioned the Supreme Court for review and the Supreme Court in Moore v. State,
452 So.2d 559 (Fla. 1984) approved the decision of this court: We therefore hold that under section
90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact....
CopyCited 4 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2045447
...Statements that constitute hearsay within hearsay are inadmissible unless both statements conform to a hearsay exception. See §
90.805; Smith v. State,
880 So.2d 730, 741 (Fla. 2d DCA 2004). An out-of-court statement is not hearsay if it has been offered for a purpose other than proving the truth of its contents. See §
90.801(1)(c)....
CopyCited 4 times | Published | Florida 1st District Court of Appeal
...instruction." Palmes v. State,
397 So.2d 648 (Fla. 1981). [2] Although the Florida Evidence Code, Chapter 90, Florida Statutes (effective July 1, 1979), would not be applicable since this case was tried before its effective date, we note that under Section
90.801(1)(c) appellant's statements would not technically be "hearsay," and would in any event be admissible under Section
90.803(3)(a)(1) or (2), to prove state of mind.
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1993 WL 132612
...We find error on this point because the proffered statement was not hearsay, and, accordingly, the presence of an exception to the hearsay rule was not relevant. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Section 90.801(1)(c), Fla. Stat. (1989). A statement is "an oral or written assertion." Section 90.801(1)(a)1, Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 22056036
...made by witnesses who testify at trial but who recant the prior statements at trial, are insufficient as a matter of law to sustain guilt beyond a reasonable doubt in a criminal trial. In Moore, the inconsistent statements were admitted pursuant to section 90.801(2)(a), [6] a different hearsay exception than the one at issue here....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 1999 WL 743613
...NOTES [1] See §
90.803(4), Fla. Stat. [2] See §
90.803(2), Fla. Stat. [3] The supreme court, in Jones, held that although the statements at issue were not admissible under the medical diagnosis and treatment exception, they were admissible under section
90.801(2)(b) as prior consistent statements by the child to rebut charges of recent fabrication and improper influence....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2000 WL 1345946
...several potential witnesses who said that certain friends and relatives of the victim and the Williams' rule witnesses asked them to accuse Millien of sexual wrongdoing. We agree with the trial court that this evidence was inadmissible hearsay. See § 90.801(1)(c), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2008 WL 4755342
...1st DCA 2003) (quoting from Nardone v. State,
798 So.2d 870, 874 (Fla. 4th DCA 2001)). 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." §
90.801(1)(c), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2003 WL 22442922
...23rd incident with Officer Powser on the basis that it is inadmissible collateral crime evidence. We first address Detective Jasinski's testimony that Mr. Bett identified the man in the photograph of the November 23rd robbery as Valley. Pursuant to section 90.801, Florida Statutes, (2002), an out of court statement of identification is hearsay unless the declarant testifies at trial and is subject to cross-examination....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2008 WL 4629572
...State,
863 So.2d 271, 278 (Fla.2003) (citing Nardone v. State,
798 So.2d 870, 874 (Fla. 4th DCA 2001)). Hearsay, defined as "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," §
90.801(1)(c), Fla....
...Thomas inadmissible as hearsayhe nevertheless allowed the State to introduce the email without redaction. [5] *108 The email contains two "levels" of hearsay. The email is itself hearsay because it is an out-of-court statement being offered for the truth of the matters asserted. See § 90.801(1)(c), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1994 WL 576096
...e victim was not offered to prove the truth of the matter asserted, but to show that the victim reported the abuse to friends and family contemporaneously with the abuse occurring. The trial court was correct. This testimony is not hearsay [3] under section 90.801 which provides: (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: ..... (b) Consistent with [t]his testimony and is offered to rebut an express or implied charge against [the declarant] of improper influence, motive, or recent fabrication;... § 90.801(2)(b), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 13 Fla. L. Weekly 2376, 1988 Fla. App. LEXIS 4643, 1988 WL 109644
...Appellant contends that the trial court abused its discretion when it held that a proper predicate was laid for the admission of a computerized monthly billing statement as a business record under the business records exception to the hearsay rule. We agree. Section
90.801, Florida Statutes (1987), defines hearsay as: "[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." Section
90.803, Florida Statutes (1987), lists the exceptions to the hearsay rule....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2012 WL 5933008, 2012 Fla. App. LEXIS 20448
...m her display of a “Florida ID” to him. See §
90.604, Fla. Stat. (2010). 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.” §
90.801(l)(c), Fla....
...State,
949 So.2d 339, 341 (Fla. 4th DCA 2007); Torres v. State,
870 So.2d 149, 150 (Fla. 2d DCA 2004); Diaz v. State,
62 So.3d 1216, 1217 (Fla. 5th DCA 2011). The statement of one person to another as to his identity is hearsay that does not fall under the section
90.801(2)(c) exclusion from hearsay for statements of “identification of a person made after perceiving the person.” See Charles W....
...identified himself and described his relationship to the defendant. Id. The Third District held that “all of the process server’s testimony regarding what [the served person] had told him was hearsay” that did not qualify as non-hearsay under section 90.801(2)(c)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2001 WL 1414529
...We hold that the trial court properly permitted the State to use Windes' deposition during its redirect of Windes in order to rebut the implication that Windes' testimony was the product "of improper influence, motive or recent fabrication." See Cardali v. State,
701 So.2d 1241 (Fla. 3d DCA 1997); §
90.801(2)(b), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2005 WL 1026628
...The state offered Angela Nowell's post-arrest identification of Rutherford as "the guy that did the robbery" through the testimony of Investigator Valerio. Nowell testified at trial. Valerio's description of Nowell's statement was non-hearsay under section 90.801(2)(c), Florida Statutes (2004)....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2006 WL 1409129
...of the abuse of discretion standard of review applied routinely by opinions to the admissibility of evidence, in a case in which the issue was whether an out-of-court statement was offered to prove the truth of the matter contained in the statement. § 90.801, Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1994 WL 195238
...There is no such exception, of course, because Sibley's testimony as to what he was told by Smyth did not constitute hearsay at all. "Hearsay" is a statement, other than one made by the declarant while testifying at *894 the trial or hearing, offered in evidence to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2001 WL 219299
...I agree and would add that the statements identifying the defendant were independently admissible as substantive evidence. The Evidence Code treats as nonhearsay an out-of-court statement "of identification of a person made after perceiving the person." § 90.801(2)(c), Fla. Stat. (1999). As explained by Professor Ehrhardt: When a witness identifies an individual before a trial, section 90.801(2)(c) provides that the out-of-court statements of identification made after the witness has perceived the individual are excluded from the definition of hearsay. Therefore, the out-of-court statement of identification is admissible in court to prove the truth of the matter asserted, e.g., to prove that the person identified was the person who committed the act. Section 90.801(2)(c) is applicable regardless of whether the declarant identifies the individual in court....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2013 Fla. App. LEXIS 3531, 2013 WL 811639
...gina had in fact been penetrated by someone other than Merritt. When Merritt’s attorney asked what L.P.’s answer to the question was, L.P. answered, “[M]y cousin said that this boy did when we was little.” L.P.’s statement was hearsay. See § 90.801(l)(c), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2014 WL 837006, 2014 Fla. App. LEXIS 2977
...The store officer’s recitation of his co-worker’s statement that J.B. took the store bracelet is classic hearsay. It is “a statement, other than one made by the declarant while testifying at the. trial ... offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 3325, 2010 WL 934018
...When at trial the State sought to present this evidence, defendant objected on hearsay grounds. The principal justification for the detective's evidence is that it was mostly demonstrative and not a specific recitation of out-of-court statements by the victim. Section 90.801(1)(a)2 expressly defines hearsay to embrace "nonverbal conduct of a person if it is intended by the person as an assertion." So even if the child had not said a word to the officer but merely demonstrated the act, it would still qualify as nonverbal conduct intended as an assertion....
...ed to him by the child. This evidence was undeniably used to portray out-of-court statements by the victim to the detective for the sole purpose of establishing defendant's guilt. The State also contends the detective's evidence was admissible under § 90.801(2)(b) to refute a contention the child was either lying or recently fabricated the story....
...A statement does not meet the statutory definition if the basis for fabrication existing at trial also existed at the time the statement was made. In context the only purpose of the detective's evidence was to buttress or strengthen the testimony of the child. Section 90.801(2)(b) does not authorize hearsay testimony for that purpose. Accordingly we conclude that the State has failed to lay bare a basis for the detective's testimony under § 90.801(2)(b)....
CopyCited 3 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 409, 2013 WL 2631159, 2013 Fla. LEXIS 1183
...Appellant next contends that the text messages constituted inadmissible hearsay. By statutory definition, “ ‘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.” § 90.801(l)(c), Fla....
...al communication to the pager” was hearsay. If this statement had been offered to “prove the truth of the matter asserted” — that the informant wanted to purchase four cocaine rocks for $40 — then the statement would have been hearsay. See § 90.801(l)(c), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2013 WL 3335023, 2013 Fla. App. LEXIS 10703
...Brilhart’s testimony did not provide a sufficient evidentiary basis for the trial court to grant the injunction because Mr. Brilhart’s testimony consisted entirely of generic references to S.L.B.’s alleged hearsay statements in the letter and expressions of his subjective concern. See § 90.801(l)(c), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1998 WL 412443
...e arson. [3] "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: ... [o]ne of identification of a person made after perceiving the person." § 90.801(2)(c), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 12 Fla. L. Weekly 411
...Thereafter, she gave a sworn complaint to the police that Kirkland was the assailant. When called by the state to testify at the trial, she denied remembering the facts as set forth in the complaint, and she was declared an adverse witness. Over Kirkland's objection, her sworn complaint was received in evidence under section 90.801(2)(a), Florida Statutes (1985), for purposes of impeachment and as substantive evidence....
...The jury found Kirkland guilty of burglary with an assault. In deciding if the complaint was admissible as substantive evidence, the district court of appeal considered whether the sworn statement was executed at an "other proceeding" within the meaning of section 90.801(2)(a), which reads: (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 his testimony and was given...
...At the same time we disapproved the rationale of Robinson v. State,
455 So.2d 481 (Fla. 5th DCA 1984), upon which the district court had relied to affirm Kirkland's conviction. We reiterate that a police investigation is not an "other proceeding" as contemplated by section
90.801(2)(a), Florida Statutes (1985)....
CopyCited 3 times | Published | Florida 1st District Court of Appeal
...related events occurred. We conclude that the court properly permitted use of the statement to rebut defense counsel's implied assertion of improper influence, motive, or recent fabrication. See McElveen v. State,
415 So.2d 746 (Fla. 1st DCA 1982); §
90.801(2)(b), Florida Statutes....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1992 WL 9702
...de during the course and in furtherance of the conspiracy as that time period is defined in the charging document. Furthermore, the rule covers the admissibility of statements, not actions, unless the action is intended by the actor as an assertion. § 90.801(1)(a)(2), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2003 WL 142286
...rect examination. See Pace v. State,
596 So.2d 1034, 1035 (Fla.1992); Zerquera,
549 So.2d at 192; Coxwell,
361 So.2d at 152. Finally, we agree with appellant that statements he made during the burglary depicted on the videotape are not hearsay under section
90.801(1)(c), Florida Statutes (2001)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2005 WL 74063
...plaining Treveso's motive for being the intermediary. Hearsay is an out-of-court statement testified to by a person other than the declarant which is offered for the truth of the matter asserted. Hutchinson v. State,
882 So.2d 943 (Fla.2004) (citing §
90.801(1)(c), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 37 Fla. L. Weekly Supp. 136, 2012 WL 572972, 2012 Fla. LEXIS 429
...In both cases, the defendants made timely hearsay objections to the introduction of the testimony of the second officer who did not participate in the traffic stop. Hearsay is out-of-court testimony “offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2001 WL 121082
...Dameus couldn't recognize him in court, but he doesn't look like he did that night. They're not going to dress their client up in a black T-shirtblack shirt and black pants for court. The officer's testimony concerning the victim's out-of-court identification of the defendant was admissible at trial under section 90.801(2)(c), Florida Statutes (2000)....
...Since Dameus testified at trial and was subject to cross-examination, his out-of-court identification is non-hearsay, since it was one of "identification of [Lewis] made after perceiving" him. Id. In the recent case of Puryear v. State,
774 So.2d 846, 852 (Fla. 4th DCA 2000), we observed that one of the reasons for admitting section
90.801(2)(c) identification statements as non-hearsay is that the "earlier, out-of-court identifications are believed to be more reliable than those made under the suggestive conditions prevailing at trial." We cited to State v....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2014 WL 537448, 2014 Fla. App. LEXIS 1843
...) father was paying her off to say the defendant was molesting her. The appellate court concluded, “That ruling was error. The statement was not hearsay, as it was not offered to prove the truth of its contents.” Id. at 1038 (citing, inter alia, § 90.801(l)(c), Fla....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2007 WL 4561593
...e exterior door. The written estimate of the replacement cost for the exterior door was an out-of-court statement offered to prove the truth of the matter asserted, the value of the exterior door. Thus, the estimate constituted hearsay as defined in section
90.801(c), Florida Statutes (2006), and was inadmissible under section
90.802, Florida Statutes (2006), unless an exception is created by another statutory provision....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2001 WL 946194
...is testimony in appellant's trial was the same as that he had given at Gamble's trial and in his original statement to the police. Williams answered these questions in the affirmative. Appellant contends that this testimony was inadmissible hearsay. Section 90.801(2)(b) provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and offered to rebut a charge of improper influence, motive, or recent fabrication....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 10 Fla. L. Weekly 1990
...Reversed with directions to discharge the defendant. NOTES [1] A witness to a declarant's "identification of a person made after perceiving him" may testify to the identification if the declarant testifies at trial and is subject to cross-examination; such a statement is not hearsay. § 90.801(2)(c), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 4512, 2010 WL 1329962
...As to the hearsay claim, we find that the arresting officer's purportedly offending testimony concerning statements made to him by the victim were not offered to prove the truth of the matter asserted, and thus did not run afoul of the hearsay rule. See § 90.801(1)(c), Fla....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 1997 WL 199176
...e-witness picked the appellant out of a photographic lineup approximately one week after the victim was stabbed to death. The appellant argues that the identification procedure was not sufficiently close in time to the crime to justify its use under section 90.801(2)(c), Florida Statutes (1995)....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1998 WL 193115
...Here, the employer used hearsay evidence to prove that Brown forged the purchase requisition form. The handwriting analyst's report and the letter from Federal Express stating that Brown signed the receipt for the computers are both out-of-court written assertions offered to prove the truth of the matter asserted. See § 90.801, Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1998 WL 65264
...evant. However, we agree with appellant's contention that, because the reports were being offered to prove the employer's state of mind in deciding to terminate the plaintiff and not for their truth, the evidence was not inadmissible as hearsay. See § 90.801(1)(c), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 154, 2016 WL 1592740, 2016 Fla. LEXIS 841
...4th DCA 2012)
(concluding witness’s testimony “was not hearsay because it was based on her
personal observations and not on what anyone told her”); see also generally
Charles W. Ehrhardt, Florida Evidence, § 801.2 (2015 ed.) (explaining that
“hearsay,” as defined in section 90.801(1)(c), Florida Statutes, is an out-of-court
-8-
statement offered to prove the truth of the matter asserted and noting that a
witness’s testimony that the witness “saw X buying milk in a supermarket on
January 11 ....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2017 WL 1403607, 2017 Fla. App. LEXIS 5368
...ovo review.” Burkey v. State,
922 So.2d 1033, 1035 (Fla. 4th DCA 2006). “ ‘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.” §
90.801(l)(c), Fla....
...1 See §
90.803(18), Fla. Stat. (2015). On May 19, 2015, Appellant allegedly sent a text message to the victim confirming that he was in a sexual relationship with her. This was clearly “a statement, other than one made by the declarant while testifying.” §
90.801(l)(c)....
...And then the data is then parsed out and reconstructed to see what information was on the phone, which often times includes active and deleted data on the phone. For hearsay purposes, a “statement” is “[a]n oral or written assertion” made by a “declarant.” § 90.801(l)(a)-(e), Fla. Stat. (2015). A “declarant” is “a person who makes a statement.” § 90.801(l)(b), Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 1995 WL 215026
...endant must be based upon the victimization of the child whose statements are being related. We disapprove the decision in Russell that would expand this hearsay exception. The State further attempts to raise the issue of hearsay admissibility under section 90.801(2)(b), Florida Statutes (1993)....
CopyCited 3 times | Published | Supreme Court of Florida | 2014 WL 1408553
...As discussed above,
Williams’ deposition does not establish that she and Davis spoke twice on
December 9, 1992. Because the deposition and trial testimony are not inconsistent,
the deposition could not have been used as a prior inconsistent statement to
impeach Williams under section 90.801(2)(a), Florida Statutes (1995)....
CopyCited 2 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 551, 2014 Fla. LEXIS 2717, 2014 WL 4360250
...With this standard in mind,
we first examine whether Evans’ statement to Powell was hearsay.
Hearsay is defined as “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.” § 90.801(c), Florida Statutes (2013)....
...is a distinction without a difference. See
majority op. at 29-30. Instead, regardless of whether the statement was
“declarative” or “imperative,” it was offered for its truth, and was therefore hearsay
that should have been excluded. See § 90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 15285, 2011 WL 4467379
...ance coverage) in Nova Casualty Co. v. Willis,
39 So.3d 434 (Fla. 3d DCA 2010). [2] Professor Ehrhardt's analysis cites Federal Rule of Evidence 801 and several federal cases for this proposition; the pertinent elements of that rule are identical to section
90.801....
CopyCited 2 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 509, 2015 Fla. LEXIS 2033, 2015 WL 5601524
...novo review on appeal. Burkey v. State,
922 So. 2d 1033, 1035 (Fla. 4th DCA
2006). 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.” §
90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 10 Fla. L. Weekly 2201
...of the matters asserted in her statements, but to prove the fact that the statements were, in fact, made to him. As such, they constituted a relevant circumstance in the manner in which these offenses became known and prosecuted and are not hearsay. § 90.801(1)(c), Fla....
...Her credibility concerning her statements about the offenses was the main basis of appellant's defense. Part of the credibility attack was based upon the alleged influence of others on the victim. Her prior consistent statements were proper under the provisions of section 90.801(2)(b), Florida Statutes (1983)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 13901, 2011 WL 3861577
...the testimony should not have been admitted at the suppression hearing over his hearsay objections. The trial court correctly ruled that these statements were not hearsay because they were not being offered for the truth of the matter asserted. See § 90.801(l)(c), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 516434
...was available and subject to cross-examination and, therefore, that any inconsistencies between the hearsay statements and L.C.'s testimony could be addressed at trial. See Belcher v. State,
646 So.2d 231 (Fla. 5th DCA 1994); see also Pardo v. State,
596 So.2d 665 (Fla. 1992); §
90.801, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2008 WL 4489253
...earing . . . subject to cross-examination regarding the statement and the statement is . . . inconsistent with the declarant's testimony given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." § 90.801(2)(a), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2017 WL 4393245
should still be admissible. . Pursuant to section
90.801(2)(b), Florida Statutes (2014), such a statement
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 14755, 2016 WL 5746645
...We held the data was
“clearly hearsay” because it purported to show Ruise’s locations on a particular date,
and it was being offered for the truth of the matter asserted, i.e., to prove that Ruise
was in the location away from his residence as reflected in the GPS data.
43 So. 3d
at 886; see also §
90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2012 WL 4511305, 2012 Fla. App. LEXIS 16720
...e report into evidence. 2 There is no dispute that the forensic case report is an out-of-court statement used to prove the truth of the matter asserted (Shorter’s DNA was not found on the MoneyGram keypad). The *690 report is hearsay as defined by section 90.801(l)(c), Florida Statutes....
...admit that affidavit into evidence. However, the trial court erred in not admitting the affidavit of the person conducting the analysis because the jury was deprived of the ability to evaluate the credibility of the expert conducting the analysis. . Section 90.801(l)(c) provides: " '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.” ....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 633941
...We conclude, however, that the trial court erred in excluding as hearsay the testimony of the three defense witnesses who had overheard previous conversations between the defendant and the undercover officers. An out-of-court statement is hearsay only if it is offered to prove the truth of the matter asserted. See § 90.801(1)(c), Florida Statutes (1995); Chatman v....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1989 WL 142198
...solely upon that hearsay. Technically, S.L.'s deposition testimony is hearsay, because it 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." § 90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 17701, 2010 WL 4666050
...Corbett correctly contends on appeal that the case law relied upon by the trial court to exclude Dr. Afield's prior inconsistent testimony is no longer good law. Dr. Afield's sworn deposition testimony is admissible as substantive evidence pursuant to section 90.801(2)(a), Florida Statutes, as a prior inconsistent statement....
...Green,
667 So.2d 756, 758 (Fla.1995); State v. Delgado-Santos,
497 So.2d 1199 (Fla.1986). The 1978 adoption of the evidence code allowed, for the first time, the use of prior inconsistent statements as substantive evidence under the conditions set forth in section
90.801(2)(a). Delgado-Santos v. State,
471 So.2d 74 (Fla. 3d DCA 1985), approved,
497 So.2d 1199 (Fla.1986). As the supreme court indicated in Moore v. State,
452 So.2d 559, 561-62 (Fla.1984), "section
90.801(2)(a) was inspired in part by Federal Rule of Evidence 801(d)(1), which requires the statement to have been given under oath, subject to the penalty of perjury, at a trial, hearing, or deposition." See also Webb v. State,
426 So.2d 1033 (Fla. 5th DCA 1983). Section
90.801(2)(a), Florida Statutes (2009) provides: (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 dec...
...rior trial, hearing or other proceeding, or in a deposition, are admissible under Florida law as substantive evidence, so long as the declarant testifies at the trial or hearing at which the statement is offered, and is subject to cross-examination. § 90.801(2)(a), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal
...The administrative deans testified the students' statements were made to them voluntarily, and without promises of lenience. [2] As to each child, his or her own statement was admissible as an "admission," §
90.803(18), Fla. Stat. (1983), although as applied to the other students, it was hearsay, §
90.801(1)(c), Fla....
CopyCited 2 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 569, 2017 WL 1954975, 2017 Fla. LEXIS 1067
...“That discretion,
however, is limited by the rules of evidence.” Hudson v. State,
992 So. 2d 96, 107
(Fla. 2008). “Hearsay” is defined as “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.” §
90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1993 WL 55638
...gher figure of $30,297.00. Much of the documentary evidence on which the state relied was subject to the hearsay rule and failed to meet the strict requirements for admissibility under the "business records" exception, on which the state relied. See section
90.801,
90.802 and
90.803(6), Florida Statutes (1989); Beckerman v....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2013 WL 1194940, 2013 Fla. App. LEXIS 5047
...Second, the pretrial statement was not introduced into evidence. The codefendant’s lawyer questioned the witness about the statement but that is not the same as offering it in evidence. Third, the statement plainly does not qualify as substantive evidence under section 90.801(2)(a) of the Evidence Code....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2011 Fla. App. LEXIS 2664, 2011 WL 710175
...The comparison of these records to the payments made by the State being the chief mechanism by which the charges at issue were proven, we cannot conclude the admission of this evidence was harmless. Accordingly, the order under review is reversed and remanded. . See § 90.801(l)(c), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1996 WL 111761
...s, of course, precisely how we currently handle evidence of prior consistent statements. Such consistent statements may only be used to rebut an express or implied charge against the declarant of improper influence, motive or recent fabrication. See section 90.801(2)(b), Fla.Stat....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2009 WL 1586819
...regarding the incident between Appellant and the victim. The State asked the officer what J.E.A. had told him, and Appellant's counsel objected on the grounds that it was a prior consistent statement and hearsay. The State responded that it was admissible under section 90.801(2)(b), Florida Statutes, as a prior consistent statement to rebut Appellant's counsel's suggestion on cross-examination that J.E.A....
...Next, we consider Appellant's challenge to the officer's testimony. Appellant argues on appeal that the officer's testimony regarding J.E.A.'s prior consistent statement, that "[J.E.A.] observed the victim... performing oral sex on the suspect," failed to meet the requirements of section 90.801(2)(b), Florida Statutes (2008)....
...Prior consistent statements are generally inadmissible to corroborate or bolster a witness's trial testimony because such statements are usually hearsay. See Taylor v. State,
855 So.2d 1, 22-23 (Fla. 2003); Chandler v. State,
702 So.2d 186, 197 (Fla.1997); McElveen v. State,
415 So.2d 746, 748 (Fla. 1st DCA 1982). Section
90.801(2), Florida Statutes (2008), provides an exception to this general rule where "the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and that statement is: .... (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." Additionally, to be admissible under section
90.801(2)(b), the prior consistent statement must have been made "before the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify." Taylor,
855 So.2d at 23; see also Keffer v....
...has successfully occurred, then prior consistent statements are admissible on the redirect examination or through subsequent witnesses to show the consistency of the witness'[s] trial testimony." A prior consistent statement is not admissible under section
90.801(2)(b) "merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial." See Monday v. State,
792 So.2d 1278, 1280 (Fla. 1st DCA 2001) (citing Jenkins,
547 So.2d at 1020-21). In the instant case, the first condition for admitting prior consistent statements under section
90.801(2) was met because J.E.A....
...that M.B. told him that the victim performed fellatio on Appellant and suggested that J.E.A. was merely repeating M.B.'s allegations, not that M.B. was influencing J.E.A. to testify against Appellant. This does not constitute an "improper influence" under section 90.801(2)(b)....
...Thus, J.E.A.'s account of the crime to the investigating officer was not made prior to M.B.'s alleged influence. We conclude that the trial court erred in admitting the investigating officer's hearsay testimony of J.E.A.'s prior consistent statement under section 90.801(2)(b)....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 9210, 2010 WL 2539429
...rior trial, hearing or other proceeding, or in a deposition, are admissible under Florida law as substantive evidence, so long as the declarant testifies at the trial or hearing at which the statement is offered, and is subject to cross-examination. § 90.801(2)(a), Fla....
...(2009); Pearce v. State,
880 So.2d 561, 569 (Fla.2004); but cf. State v. Green,
667 So.2d 756 (Fla.1995) (holding that statements made under oath at a discovery deposition in a criminal case do not qualify for admission as substantive evidence under section
90.801(2)(a)). Evidence of a prior inconsistent statement that is not admissible as substantive evidence under section
90.801(2)(1) is still admissible for impeachment purposes under section
90.614, Florida Statutes, as long as a proper foundation is laid for admission of the evidence....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...Based on the officer's testimony, probable cause was found and petitioner was bound over to answer to the charge of grand theft. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." § 90.801, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 9250, 2011 WL 2437411
...Appellant argues that testimony revealing that his vehicle had been stolen is hearsay and introduces impermissible collateral crime evidence. 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." See § 90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2009 Fla. App. LEXIS 7465, 2009 WL 1636972
...ting evidence concerning his discussion with the deputy. We agree that the deputy's statements were not hearsay because they were not offered to prove the truth of what the deputy stated but to prove or explain Krampert's own subsequent conduct. See § 90.801(1)(c), Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1989 WL 73811
...innocence. This was error. While the state may have been entitled to have Morrison's statement presented to the jury, Morrison was similarly entitled to have those portions of her statement supportive of her position disclosed to the same jury. See § 90.801, Fla....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2001 WL 746648
...*1155 Before COPE, LEVY and RAMIREZ, JJ. COPE, J. The question presented by this case is whether a physical description of the perpetrator of a crime constitutes a statement "of identification of a person made after perceiving the person" within the meaning of paragraph 90.801(2)(c), Florida Statutes (1999)....
...Under the Evidence Code, "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 ... (c) One of identification of a person made after perceiving the person." § 90.801(2)(c), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 10455, 35 Fla. L. Weekly Fed. D 1574
...State,
713 So.2d 1110 (Fla. 2d DCA 1998) (holding *942 that testimony regarding out-of-court identification was inadmissible where the state failed to ask the witnesses about the identification during its direct examination). These cases are based upon the language of section
90.801(2)(c), Florida Statutes, which defines an out-of-court statement of identification as admissible non-hearsay only when the declarant testifies at trial and is "subject to cross-examination concerning the statement...." [4] These cases...
...State,
361 So.2d 148, 151 (Fla.1978)). We also note that although Ms. Levine did not acknowledge identifying Polite to the police in response to the State's questions on direct, her acknowledgement was not necessary for admission of the evidence under section
90.801(2)(c)....
...[3] The Legislature adopted the Florida Evidence Code, by statute, in 1976. Ch. 76-237, Laws of Fla. The Florida Supreme Court has also approved and adopted most provisions in the code, including the section at issue here, as a rule of court. In re Fla. Evidence Code,
372 So.2d 1369 (Fla. 1979). [4] Section
90.801(2)(c) provides "[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 ......
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 1039, 40 Fla. L. Weekly Fed. D 296
...9
The affidavits, on the other hand, were offered to prove the truth of the
matter asserted (that the notice was sent). Therefore, Holt’s hearsay
objection to the affidavits should have been sustained. See § 90.801(1)(c),
Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal
...iewed de novo. Browne v. State,
132 So.3d 312, 316 (Fla. 4th DCA 2014). “‘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.” §
90.801, Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2008 WL 183701
...During the State's direct examination of Detective Kercher, Mr. Ross raised a hearsay objection to the State's question as to whether Detective Kercher asked Mr. Willis who beat him. The State argued that the testimony fell under the hearsay exception for identification. See § 90.801(2)(c), Fla....
...Ross objected to the introduction of the taped statements of Lakeisha Jones and Corbie Jones on hearsay and confrontation clause grounds. The trial court overruled the objection and allowed the jury to hear the recordings as prior consistent statements. See § 90.801(2)(b), Fla....
...Ross's contention that the witnesses' trial testimony was influenced by their plea bargains. I. IDENTIFICATION TESTIMONY Detective Kercher testified that Mr. Willis identified Mr. Ross as one of his assailants. The trial court found the testimony admissible under section 90.801(2)(c), which provides in part: (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: .......
...e scene statement that the defendant was the assailant. See id. at 738-39. Although the challenged statement was not the precise evidence envisioned by the evidence code, its admission came with indicia of reliability similar to that contemplated by section 90.801(2)(c) because "[t]he victim knew the assailant and identified him to witnesses while the episode was fresh in his mind." Id....
...Washington,
541 U.S. 36, 51-52,
124 S.Ct. 1354,
158 L.Ed.2d 177 (2004); see also State v. Hosty,
944 So.2d 255, 261 (Fla.2006) (holding police investigations are testimonial). The trial court ruled, however, that the statements were not hearsay under section
90.801(2)(b), which states in part: (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: .......
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 1990 WL 205856
...iduals. We disagree. A police officer may testify as to what he did pursuant to information he received from others; however, he may not testify as to the information itself if the information is hearsay. State v. Baird,
572 So.2d 904 (1990). "Under section
90.801(1)(c), Florida Statutes (1987), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." Baird, 15 FLW at S614,
572 So.2d at 906....
CopyCited 2 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 752, 2014 Fla. LEXIS 3681, 2014 WL 6977944
...principles of stare decisis.” Hayward v. State,
24 So. 3d 17, 29 (Fla. 2009)
(internal citations omitted).
- 15 -
In Penalver v. State,
926 So. 2d 1118, 1131-32 (Fla. 2006), the Court
explained that:
Hearsay is defined in section
90.801(1)(c), Florida Statutes (2005), as
“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.” (Emphasis added.) See also Hernandez v....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2002 Fla. App. LEXIS 18109
...ition of hearsay. Therefore, we also conclude that the trial court decided the issue incorrectly and the admission of the statement was erroneous. As a result, we reverse appellant’s conviction and sentence for burglary and remand for a new trial. Section 90.801, Florida Statutes, defines hearsay as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” In addition, the Florida Supreme Court h...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2007 WL 2212706
...Admitting Claflin's August 2005 statement was an abuse of discretion. It was not admissible as substantive evidence as a prior inconsistent statement because it was not "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition." §
90.801(2)(a), Fla. Stat. (2005); Pearce v. State,
880 So.2d 561, 569 (Fla.2004). "[A] statement given under oath during a police investigation is not a statement given at an `other proceeding' and consequently is not admissible as substantive evidence under section
90.801(2)(a)." Pearce,
880 So.2d at 569 (citing State v....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2014 Fla. App. LEXIS 13453, 2014 WL 4249749
...l judge articulated a common misconception about the hearsay rule. Hearsay is defined as “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.” § 90.801(D(c), Fla....
...Nevertheless, the trial court reasoned that Bacon’s statements were “not hearsay at all” because she testified and was subject to cross-examination. However, an out-of-court statement offered for the truth of the matter asserted can be considered non-hearsay only if it falls under section 90.801(2), Florida Statutes....
...as given under oath; (2) is 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 (3) is offered as identification of a person. § 90.801(2), Fla....
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2003 WL 1823497
...However, none of this testimony was based on personal knowledge; the witnesses all relied on information either supplied by other persons who were not called to testify or by documents that were not entered in evidence. Accordingly, the evidence was inadmissible hearsay, see § 90.801, Fla....
CopyCited 2 times | Published | Florida 1st District Court of Appeal | 1997 WL 203657
...d information. The law in this state is that prior unsworn, inconsistent, and uncorroborated statements cannot constitute the only substantive evidence to sustain a conviction "regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)," Florida Statutes....
CopyCited 2 times | Published | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 507, 2017 WL 1506854, 2017 Fla. LEXIS 925
...rt statement, then the statement is not hearsay if that statement is “[cjonsistent 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.” § 90.801(2)(b), Fla....
...ce. Therefore, because Detective Kendall’s testimony was consistent with Junior’s trial testimony and it was introduced by the State to refute Tundidor’s inference that Junior had-an improper motive, Detective Kendall’s testimony fell within section
90.801(2)(b), Florida Statutes, and was admissible. See Rodriguez v. State,
609 So.2d 493, 500 (Fla. 1992) (holding that section
90.801(2)(b) applied when “[djefense counsel’s references to plea agreements with the state during cross-examination of [witnesses] were sufficient to create an inference of improper motive to fabricate,” and the State could introduce s...
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 2017 Fla. App. LEXIS 5786, 2017 WL 1496270
...on. Typically at trial, a defendant’s statement during police interrogation is hearsay; it is a statement “other than one made by the [defendant] while testifying at the trial ,.. offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 1983 Fla. App. LEXIS 21802
in fact hearsay and therefore inadmissible. Section 90.-801(l)(c) defines hearsay as “a statement, other
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2002 WL 31060357
...In closing argument the prosecutor pointed out that the officer had spoken to at least nine other witnesses who all confirmed the victim's testimony. This testimony was, as appellant's counsel made clear in his objection, classic hearsay testimony. § 90.801(c), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2003 WL 22459116
...buse, even if repeated on multiple occasions as in this case, is sufficient in and of itself to sustain a conviction. The court concluded that it was not. The statements in Green were not prior inconsistent statements made under oath for purposes of section
90.801(2)(a), but they could have been admitted under section
90.803(23)....
...imony is introduced by the state at trial...." Green,
667 So.2d at 760 (quoting Jaggers,
536 So.2d at 325). The Green court concluded that "in a criminal prosecution, a prior inconsistent statement [whether admitted pursuant to section
90.803(23) or
90.801(2)(a)] standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt." Green,
667 So.2d at 760 (relying upon and reaffirming State v....
...Section
90.803(23) and the defendant's confrontation rights require this analysis. If the basis is that, because the out-of-court statement is admissible simply because it is inconsistent with the in-court testimony of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section
90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section
90.803 hearsay exception. These exceptions are surrounded by circumstantial guarantees of reliability which are not necessarily present when a statement is offered under section
90.801(2)....
...State,
655 So.2d 1118, 1120 (Fla.1995): "[W]e decline to enunciate a blanket rule that no conviction can stand based solely on hearsay testimony." Cf. Williams v. State,
714 So.2d 462, 466 (Fla. 3d DCA 1997) (holding that the excited utterance exception to the hearsay rule, section
90.801(2), is a firmly rooted exception because the circumstances under which such statements are made "eliminate the possibility of fabrication, coaching, or confabulation," and that incriminating statements admitted pursuant to the excited...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 11 Fla. L. Weekly 2273
...We conclude that, under the circumstances, the prejudicial nature of the "non-substantive" evidence was sufficient to warrant a new trial for the appellant. It was also reversible error for the court to admit Theresa Rumsey's deposition testimony as substantive evidence against the appellant. It is true that under Section 90.801(2)(a), Florida Statutes (1983), prior inconsistent statements of a witness taken under oath are admissible as substantive evidence....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2016 WL 5939715, 2016 Fla. App. LEXIS 15117
...same thing that Mr. Senobi said that a vehicle passed by there. It was a Black male
dressed in dark clothing produced a AK-47 began to shoot at them while they were
in the car.”
Although both Senobi’s and Agenor’s statements qualify as hearsay under
section
90.801, Florida Statutes (2013), we conclude that Senobi’s statement was
properly admitted because it was an “excited utterance,” see §
90.803(2), Fla....
CopyCited 1 times | Published | District Court of Appeal of Florida | 9 Fla. L. Weekly 2172, 1984 Fla. App. LEXIS 15369
statement cannot be classified “non-hearsay” under Section
90.801(2)(b), Florida Statutes (1981)1 as it was not
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1993 WL 382991
...In the Jones case, the court did not reverse for a new trial because it concluded the hearsay statement could be admitted under still another hearsay exception, a prior consistent statement by the child to rebut a charge of recent fabrication and improper influence. § 90.801(2)(b), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2005 WL 3180036
...y conflict with that opinion. Addressing another issue on appeal, we note that Hile's in-court description of his conversation with Longval on the videotape was admissible over a hearsay objection. Longval's statements to Hile were not hearsay under section 90.801(1)(c), Florida Statutes (2004), because they described and gave significance to ambiguous acts, her conduct on the videotape....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2005 WL 3077212
...Nurse to the theft of the wills. The only testimony the State offered regarding the location of the latent print was the inadmissible hearsay testimony that the print examiner "knew" the location of the print based upon notations made by a forensic specialist. See § 90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 17177, 2010 WL 4484629
...Riggins objected to Burgess testifying as to the expiration date written on the tag on hearsay grounds. The trial court overruled the objection, which was error. As Riggins points out, the definition of hearsay includes “written assertion[s]” that are “offered in evidence to prove the truth of the matter asserted.” § 90.801(1)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 1991 WL 75557
...h and Sixth Amendments, United States Constitution and Section 16, Florida Constitution when the trial court repeatedly allowed into evidence at trial, over appellant's timely objections, statements which were "clearly hearsay" within the meaning of section 90.801, Florida Statutes (1979), as construed by this court in Cox v....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...Nardone v.
State,
798 So. 2d 870, 874 (Fla. 4th DCA 2001). “[W]hether evidence falls
within the statutory definition of hearsay is a matter of law, subject to de
novo review.” Browne v. State,
132 So. 3d 312, 316 (Fla. 4th DCA 2014)
(citation omitted).
Section
90.801(2)(c), Florida Statutes (2016), states: “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 ....
... police in which she identified appellant from a surveillance video of the
robbery. As the state concedes, this was improper under Ibar. Harris’s
recorded out-of-court identification, unlike that of the other two
eyewitnesses, would not be admissible under section 90.801(2)(c).
The state claims that the error was harmless because the employees
identified appellant as the robber at the scene....
...appeal moot, we briefly address the other issues raised by appellant to
provide guidance in the event there is a retrial on remand. We first address
the admission of hearsay evidence contained in the two employees’
recorded statements. As noted above, section 90.801(2)(c) provides a
hearsay exception for statements of identification. “Florida courts have
limited the scope of section 90.801(2)(c) to exclude statements containing
descriptions or accusatory narratives.” Smith v....
...4th DCA 2016)
(holding that “the victim’s and the victim’s friend’s descriptions of the
defendant as the one of the men who participated in the incident, as the
responding officer’s testimony recounted, do not qualify as non-hearsay
‘statements of identification’ under section 90.801(2)(c)”); Simmons v.
State, 782 So....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 27 Fla. L. Weekly Fed. D 1254
...ns provides: 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: ... (c) One of identification of a person made after perceiving the person. § 90.801(2)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 1980256, 2013 Fla. App. LEXIS 7863
...A trial court’s determination regarding whether testimony is hearsay is reviewed de novo. Id. 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.” § 90.801(l)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 1810609, 2013 Fla. App. LEXIS 6936
...State,
67 So.3d 332, 335 (Fla. 4th DCA 2011) (citations, alteration, and quotation marks omitted). “ ‘Hearsay 1 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.” §
90.801(l)(c), Fla....
CopyCited 1 times | Published | Supreme Court of Florida
...Comments
This instruction should not be used for prior inconsistent statements that are
admissible as substantive evidence and not merely as impeachment, e.g., prior
testimony at a trial, hearing or other proceeding (§ 90.801(2)(a), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 1996 WL 93745
...ent, and that she continued to implicate Cortes at trial. The State asserted that the taped statement should be admitted as a prior consistent statement to rebut any inference of a recent fabrication. The admission of prior statements is governed by section 90.801(2)(b), Florida Statutes (1991), which states: (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: * * * * * * (b) Consiste...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 1136404, 2013 Fla. App. LEXIS 4409
...river was a parrot repeating the testimony spoon-fed to him by the detective. 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.” § 90.801(l)(c), Fla....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 2644, 2011 WL 714313
...ct to cross-examination concerning the statement and the statement is ... [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[.] § 90.801(2)(b), Fla....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal | 2001 WL 246036
...t testify at the trial. See Fernandez v. State,
722 So.2d 879, 881 (Fla. 3d DCA 1998) (stating that: "[a] statement of identification is not hearsay, ..., if the person making the identification also testifies at trial" (citation omitted)); see also §
90.801(2)(c), Florida Statutes (1997)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1995 WL 96309
...ior statement, which was admitted over J.J.H.'s hearsay objection. In Moore, the Florida Supreme Court held that, although a prior inconsistent statement made under oath before a grand jury could be admitted as substantive evidence pursuant to *1241 section
90.801(2)(a) [3] of the Florida Statutes, a criminal conviction could not be sustained based on this evidence if the statement was "the sole evidence of a central element of the crime charged." Moore,
485 So.2d at 1281....
...In State v. Delgado-Santos,
497 So.2d 1199 (Fla. 1986), the Florida Supreme Court held that prior inconsistent statements made during a police interrogation by a defendant's alleged accomplice do not constitute statements made in an "other proceeding" under section
90.801(2)(a) and, therefore, such statements are not admissible as non-hearsay, substantive evidence....
...SHARP, and GRIFFIN, JJ., concur. NOTES [1] See §§
810.02(1),
810.02(2)(b), Fla. Stat. (1993). [2] See §§
812.014(1),
812.014(2)(c)1, Fla. Stat. (1993). The state alleged that the property taken was worth $300 or more but less than $20,000. [3] Section
90.801(2)(a), Florida Statutes (1981), provides: 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 his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; ... . [4] Under section
90.801(1)(c), Florida Statutes (1993), L.C.'s statement would have been admissible for impeachment purposes; however, the state introduced the statement into evidence before L.C....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2017 Fla. App. LEXIS 8488, 2017 WL 2484944
...In the context here, that was an erroneous characterization.
Hearsay, the Florida Evidence Code tells us, "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." § 90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 2420442, 2013 Fla. App. LEXIS 8862
...However, the rules of evidence limit the trial court’s discretion. Nardone v. State,
798 So.2d 870, 874 (Fla. 4th DCA 2001). “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.” §
90.801(l)(c), Fla....
...State,
829 So.2d 901, 906 (Fla.2002), the State asks us to affirm the admission of the prior statements as the correct result even if the trial court asserted the wrong reasons because the prior statements can be admitted as prior consistent statements. “Section
90.801(2)(b), [Florida Statutes (2010) ] provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and offered...
...y.”’ Jackson v. State,
498 So.2d 906, 910 (Fla.1986) (quoting McElveen v. State,
415 So.2d 746, 748 (Fla. 1st DCA 1982)); Kellam v. Thomas,
287 So.2d 733 (Fla. 4th DCA 1974). Stated another way, a prior consistent statement is inadmissible under section
90.801(2)(b) if it is made after the witness’ motive to lie arose....
CopyCited 1 times | Published | District Court of Appeal of Florida | 10 Fla. L. Weekly 1565, 1985 Fla. App. LEXIS 14867
...ion involving a different child or, if relevant, is unduly prejudicial. We disagree on all points. Hearsay is an out-of-court statement other than one made by the declarant while testifying at trial offered to prove the truth of the matter asserted. Section 90.801, Florida Statutes (1983)....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 9677, 2016 WL 3458768
...that she obtained from the 3M electronic monitoring system. The 3M GPS data were
offered to prove the truth of the matter asserted, namely that Laing was at the specific
GPS locations reported by 3M at particular times on particular dates. This is definitive
hearsay. See § 90.801(1)(c), Fla....
CopyCited 1 times | Published | District Court, M.D. Florida | 2008 U.S. Dist. LEXIS 109195, 2008 WL 2567658
...ons or admitting the photographs into evidence should have been raised on direct appeal. Id. [17] Certainly, an identification made shortly after the crime is more reliable in most situations than identifications made at a later time. See Fla. Stat. 90.801(2)(c)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2010 WL 2508845
...previously stated that the Father intentionally struck her were improperly admitted as substantive evidence. Although R.K.'s prior statements to that effect were inconsistent with her trial testimony, the evidence at trial did not reflect that R.K.'s prior statements were sworn or otherwise met the requirements of section 90.801(2)(a)....
...tim under section
90.803(23) were not met. Therefore R.K.'s statements were not admissible as substantive evidence and could only be used for impeachment. See L.R. v. Dep't of Children & Family Servs.,
947 So.2d 1240, 1244 (Fla. 2d DCA 2007) (citing §
90.801(2) and Smith v....
CopyCited 1 times | Published | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 6672, 1993 WL 216982
...State, 580 So.2d *245 309 (Fla. 3d DCA 1991); Holliday v. State,
389 So.2d 679 (Fla. 3d DCA 1980), unless the prior consistent statement is offered “to rebut an express or implied charge against [the declarant] of improper influence, motive, or recent fabrication.” Section
90.801(2)(b), Fla.Stat....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2017 WL 2664703, 2017 Fla. App. LEXIS 8963
...improperly permitted the State to question the surviving victim regarding four earlier instances in which he identified the defendant in court as a shooter. The State responds that this evidence was admissible as a statement of identification under Section 90.801(2)(c), Florida Statutes (2012). Section 90.801(2)(c), Florida Statutes (2012), states in pertinent part: A statement is not hearsay if the declar-ant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ......
...ter perceiving him” refers to the witness seeing a person after the criminal episode and identifying that person as the offender. Stanford v. State,
576 So.2d 737, 739-40 (Fla. 4th DCA 1991) (footnote omitted). Based on the foregoing, we hold that Section
90.801(2)(c), Florida Statutes *580 (2012), applies to out-of-court identifications made close to the time the declarant perceived the identified person and not to prior in-court identifications....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2013 WL 2494714, 2013 Fla. App. LEXIS 9266
...who had signed a document of which they were aware — are examples of classic hearsay: “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.” § 90.801(l)(c), Fla. Stat. (2011). Such “statement” can be, as in this case, a written assertion. See § 90.801(l)(a)(l)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 11408, 2015 WL 4549489
...On rebuttal, the state sought to offer
similar testimony that the detective gave in his deposition, taken after the
report but years before the trial, to show that his trial testimony was not
a recent fabrication. We conclude, as did the trial court, that the
statement was proper pursuant to section 90.801(2), Florida Statutes
(2013), which provides:
(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:...
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2007 WL 2089042
...revocation. The Phoenix House director testified he personally discharged Appellant from Phoenix House; this testimony was not an out-of-court statement, but simply a recitation of the facts as they occurred for which he had personal knowledge. See § 90.801(1), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 214, 2016 WL 64341
...(alteration and omission in original) (quoting
Powell v. State,
99 So. 3d 570, 573 (Fla. 1st DCA 2012)).
“‘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.” §
90.801(1)(c), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 5, 2015 Fla. LEXIS 1, 2015 WL 48045
...an.” Therefore, counsel could have
sought out Hall and Michelson after Buffkin’s evidentiary hearing testimony.
In addition, the newly discovered evidence offered by Kormondy, as to what
Buffkin reportedly said, constitutes hearsay. See § 90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...We agree with
the state’s contention that the photograph was non-hearsay admitted for
a limited purpose. This was the photograph:
-3-
If the photograph were offered to prove Henry’s telephone number, it
would be hearsay under Florida’s hearsay rule. Section 90.801(1)(c),
Florida Statutes (2014), defines “hearsay” as “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.” Hearsay evidence is
inadmissible, except as provided by statute....
...–“the lack of an opportunity to
cross-examine the person who made the out-of-court statement to test the
person’s perception, memory, sincerity, and accuracy.” Ehrhardt, Florida
Evidence § 801.1 (2012 edition). 1 The express language of the section
90.801 definition of hearsay controls over practical considerations.
The contact information screen here at issue is tantamount to a
modern-day entry in an address book....
CopyCited 1 times | Published | Supreme Court of Florida | 2016 WL 454038
...the mitigators. Id.
On direct appeal,1 we outlined the evidence against Ibar:
1. Ibar raised the following claims on direct appeal:
(1) whether certain out-of-court statements were “statements of
identification” as contemplated by section 90.801(2)(c), Florida
Statutes (1995); (2) whether the trial court erred in admitting witness
testimony for the purpose of impeaching that testimony; (3) whether
the trial court erred in admitting the transcript of testimony...
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2009 Fla. App. LEXIS 1265, 2009 WL 383558
...e offense charged.” Cox v. State,
764 So.2d 711, 712 (Fla. 1st DCA 2000). While the law allows the admission of some prior inconsistent statements as substantive evidence, those statements cannot be the sole evidence of guilt and must comport with section
90.801(2)(a), Florida Statutes (2007)....
CopyCited 1 times | Published | Florida 3rd District Court of Appeal
...5 (quoting State v. Green,
667 So. 2d
5 The State suggests that this rule is inapplicable because M.H.’s out-of-court
statements were admitted under the child hearsay exception, section
90.803(23),
and not as prior inconsistent statements under section
90.801(2)(a)....
...Yes.
Finally, the State relies on a leading question asked during cross-examination,
where defense counsel summarized M.H.’s allegations and mentioned two separate
touching incidents. Based on our careful review of the record, we cannot find that
admitted under section
90.801(2)(a) or section
90.803(23).”)....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 17987
...The threshold inquiry was not whether Gudmestad's statements were
-4-
exculpatory in nature but whether they were hearsay. Hearsay is any statement by a
nontestifying declarant which is being "offered in evidence to prove the truth of the
matter asserted." § 90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 19540, 2011 WL 6057923
...The trial court correctly ruled that the check stub was inadmissible hearsay. As a "written assertion," the stub was a "statement, other than one made by the declarant [the fiancée] while testifying at trial ... offered in evidence to prove the truth of the matter asserted." § 90.801(1)(a)1....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 1994 WL 718731
...The state was permitted to play the videotaped deposition for the jury, excising only those portions referring to misconduct alleged to have occurred prior to the crimes charged in the information. The video tape testimony was admissible for impeachment and substantive purposes because the minor child testified in court. See § 90.801(2)(a), Fla. Stat. (1991). Section 90.801(2)(a) reads in pertinent part: (2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to crossexamination 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; (emphasis added). § 90.801(2)(a), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal
...“When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label.” Keen v. State,
775 So.2d 263, 274 (Fla. 2000) (first citing §
90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 19444, 2010 WL 5173792
...4th DCA 2006) (citing K.V. v. State,
832 So.2d 264, 265-66 (Fla. 4th DCA 2002)). Hearsay is "a statement, other *1192 than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla....
...When she found a key card in L.A.R.'s room, Meredith said she looked at the key log to refresh her memory that the card she found was the one she issued to appellant. We therefore find that Meredith's testimony was not hearsay, but based on her own actions in assigning that key card to appellant. See § 90.801(1)(c)....
...is testimony constitute hearsay, as the key lock printout is not a statement generated by a person. "The Florida Evidence Code characterizes hearsay in terms of statements made by `persons.'" Bowe v. State,
785 So.2d 531, 532 (Fla. 4th DCA 2001). Subsection
90.801(1)(c) defines hearsay as including an out-of-court "statement" of a declarant....
...made by persons fall within the definition of hearsay." Bowe,
785 So.2d at 532. In the Bowe case, the court found that "caller I.D. display and pager readouts are not statements generated by a person, so they are not hearsay within the meaning of subsection
90.801(1)(c)." Id....
CopyCited 1 times | Published | Supreme Court of Florida | 39 Fla. L. Weekly Supp. 757, 2014 Fla. LEXIS 3679, 2014 WL 6978020
...2d 531, 532
(Fla. 4th DCA 2001) (“[N]either the pager nor the caller I.D. screen, like a radar or
other similar machine able to give a readout, was a ‘person’ capable of being a
‘declarant’ within the definition of the hearsay rule.” (quoting § 90.801(1)(b), Fla.
Stat....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2013 WL 4006132, 2013 Fla. App. LEXIS 12363
...t to cross-examination concerning the statement and the statement is ... [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.” § 90.801(2)(b), Fla....
...Nevertheless, “[a] prior consistent statement is not admissible merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.” Monday v. State,
792 So.2d 1278, 1280 (Fla. 1st DCA 2001). “[S]ection
90.801(2)(b) contemplates an initial attempt on cross-examination to show ......
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 13738, 2011 WL 3820040
...State,
49 So.3d 329, 333 (Fla. 1st DCA 2010) (citing Rodriguez v. State,
753 So.2d 29, 42 (Fla. 2000)). We further find no error in the court's admission of the emergency room doctor's testimony concerning the victim's demeanor. That testimony did not constitute hearsay. See §
90.801, Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...This argument lacks merit.
Under the Florida Evidence Code, “ ‘[h]earsay’ is a statement, other
than the one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.”
§ 90.801(1)(c), Fla....
...were not hearsay or were subject to a statutory exception. Id. at 956.
The Reports were hearsay because they consisted of multiple levels of
out-of-court statements by several declarants who did not testify at trial,
and were offered to prove their truth. § 90.801(1)(a), Fla....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2008 WL 3978207
...The State failed to question the witnesses concerning their out-of-court photo pack identification. The State contended that because the witnesses had testified at trial and were subject to cross-examination, the detective's testimony was admissible under the section 90.801(2)(c), Florida Statutes (1998), exception to the hearsay rule, despite the fact that the witnesses were not asked on direct examination to identify the defendant or about their out-of-court identification of the co-perpetrators....
...The State makes no effort to distinguish Neilson; rather, the State argues Neilson was decided wrongly. We disagree. Neilson followed the precedent established by our supreme court in State v. Freber,
366 So.2d 426 (Fla.1978), and is consistent with section
90.801(2)(c)....
...DiGuilio,
491 So.2d 1129, 1135 (Fla. 1986). Given the scant evidence connecting Deans to the crimes, we cannot conclude that the error was harmless. Accordingly, a new trial must be ordered. REVERSED AND REMANDED. PLEUS and EVANDER, JJ., concur. NOTES [1] Section
90.801(2)(c) provides that "[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: ......
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 12802, 2016 WL 4468189
...First, the responding officer’s testimony recounting the victim’s and the victim’s friend’s descriptions of the defendant was hearsay because it was offered to prove the truth of the matter asserted — that, the defendant was one of the men who participated in the incident. See § 90.801(l)(c), Fla....
...Second, the victim’s and the victim’s friend’s descriptions of the defendant as *436 the one of the men who participated in the incident, as the responding officer's testimony recounted, do not qualify as non-hearsay “statements of identification” under section 90.801(2)(c), Florida Statutes (2015) (“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 ;.....
...[o]ne of identification of a person made after perceiving the person.”). See Puryear v. State,
810 So.2d 901, 904 (Fla.2002) (“[A] description is not an identification. An ‘identification of a person [made] after perceiving [the person],’ [under] subsection
90.801(2)(c), is a designation or reference to a particular person or his or her photograph and a statement that the person identified is the same as the person previously perceived.”) (citation omitted)....
...orating the victim’s and the victim’s friend’s trial testimony describing the defendant on the night of the incident. Thus, the error would have been harmful to the defendant. See Puryear v. State,
820 So.2d 359, 360 (Fla. 4th DCA 2002) (where section
90.801(2)(c) did not authorize the admission of the victim’s hearsay statement describing her assailant, and the case was close on the issue of identification, the admission of the victim’s hearsay statement was harmful error)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 11326, 2009 WL 2475148
...Patel's trial testimony, unlike the tape recording of her out-of-court statement, was not hearsay. 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," § 90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2014 WL 1686465, 2014 Fla. App. LEXIS 6214
...rule as provided in s.
90.803 or s.
90.804.” §
90.805, Fla. Stat. (2012). 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.” §
90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 4th District Court of Appeal | 2010 WL 1564584
...e stop at the point when the command to stop is issued." Id. (citations omitted). 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." § 90.801(1)(c), Fla....
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2011 Fla. App. LEXIS 5190, 2011 WL 1376969
...the jury, but if it was, he moved that the court should also give the jury a curative instruction regarding hearsay evidence. The court denied that motion and read back a portion of Andre's testimony. The jury returned a guilty verdict. II. Analysis Section 90.801(1)(c), Florida Statutes (2009), defines hearsay as "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." A "statement" for purposes of hearsay includes "[n]onverbal conduct of a person if it is intended by the person as an assertion." § 90.801(1)(a)(2)....
CopyCited 1 times | Published | Florida 4th District Court of Appeal
...to cross-
examination concerning the statement and the statement is “[c]onsistent
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.” § 90.801(2)(b), Fla....
... date of the shooting. This statement was consistent with Boggess’s
testimony at trial and was properly offered to rebut the charge that he
fabricated his accidental shooting theory after sitting through trial
listening to all of the other witnesses’ testimony. See § 90.801(2)(b), Fla.
Stat.
The statements made in Boggess’s letter and statements made to his
son during a jail visit were made significantly after the date of the shooting,
allowing more time for reflection, as noted by the trial court....
...known, it is clear these statements were made well after the date of the
shooting and initial investigation. The trial court correctly exercised its
discretion in excluding both the statements in the letter and the
statements from Boggess’s jail visit with his son. See § 90.801(2)(b), Fla.
Stat.
During closing arguments, the state made three remarks at issue in
this appeal....
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 3822157, 2012 Fla. App. LEXIS 14852, 37 Fla. L. Weekly Fed. D 2131
...Velcofski’s proffered testimony did not fall within the statutory definition of hearsay because it was not being offered for the truth of the matter asserted but to show that Velcofski had a good-faith belief that his driving privilege had been reinstated. See § 90.801(l)(c), Fla....
CopyPublished | District Court of Appeal of Florida
State,
802 So. 2d 186, 197 (Fla. 1997)); see also §
90.801(2)(b), Fla. Stat. (2019). “[A] witness’s prior
CopyPublished | District Court of Appeal of Florida | 1994 Fla. App. LEXIS 9296, 1994 WL 524295
...Generally, pri- or consistent'statements are not admissible to corroborate a witness’ testimony. Jackson v. State,
498 So.2d 906 (Fla.1986). An exception to the rule provides that such statements are admissible to rebut charges of improper influence, motive or recent fabrication against the witness. Id. at 910 ; see also §
90.801(2)(b), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 15153, 2007 WL 2780574
...Goldblatt later testified that after speaking with Eulaine, he compiled the photo lineup that included Edwards’ picture. Gold-blatt further testified that Eulaine confirmed that she was at the flea market with Edwards. A statement is not hearsay under section 90.801(2)(c), Florida Statute (2002), if it is “[o]ne of identification of a person after perceiving the person,” but it applies only when the declarant testifies at trial....
CopyPublished | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 11887, 2000 WL 1344836
...First, the testimony of the physician who examined the victim concerning her narration of pertinent events was properly admissible under both section
90.803(4), Florida Statutes (1999), State v. Ochoa,
576 So.2d 854 (Fla. 3d DCA 1991), Begley v. State,
483 So.2d 70 (Fla. 4th DCA 1986), and section
90.801(2)(b), Florida Statutes (1999)....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 13628, 2010 WL 3564726
...Appellees contend that, as used in section
106.25(2), the term "hearsay" is defined by the evidence code, as being 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." §
90.801(1)(c), Fla....
...Longboat Key Beach Erosion Control Dist.,
604 So.2d 452, 455 (Fla.1992). A court should not interpret the term "hearsay" in a way that leads "to an unreasonable result or ridiculous conclusion." Holly v. Auld,
450 So.2d 217, 219 (Fla.1984). Reading the section
90.801 definition of "hearsay" into section
106.25(2) would lead to an absurd result....
CopyPublished | Supreme Court of Florida | 14 Fla. L. Weekly 457, 1989 Fla. LEXIS 864, 1989 WL 106354
...The tape was introduced by the state to rebut the inference that Remy had fabricated his story because the state granted him immunity in exchange for his testimony. To the extent that the tape was consistent with his trial testimony, it was admissible for this purpose. § 90.801(2)(b), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 9454, 1996 WL 511554
...the victim. During her testimony, Bryant denied making any such phone call. The trial court admitted' Wright’s testimony over Cunningham’s hearsay objection. Wright’s recounting of Bryant’s statement is a classic example of non-hearsay under section 90.801(2)(b), Florida Statutes (1995)....
...lea bargain. As related by Wright, Bryant’s consistent statement was made before the negotiated plea bargain, before the claimed motive to falsify arose. See, e.g., Dawson v. State,
585 So.2d 443, 445 (Fla. 4th DCA 1991). The other requirements of section
90.801(2) were also satisfied here....
...estimony. Who should be believed as to the making of the prior statement is not a question of admissibility, but one of credibility for the jury. On the remaining issues, we find no reversible error. AFFIRMED. GUNTHER, C.J., and STONE, J., concur. . Section 90.801(2)(b) provides in pertinent part: (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: [[Image here]] (b) Consistent with h...
CopyPublished | Florida 4th District Court of Appeal | 2008 WL 4147117
...review." Burkey v. State,
922 So.2d 1033, 1035 (Fla. 4th DCA 2006). "Hearsay" is defined as "a statement, other than the one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2008 Fla. App. LEXIS 15392
...earing ... subject to cross-examination regarding the statement and the statement is ... inconsistent with the declarant’s testimony given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” § 90.801(2)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 14930, 2015 WL 5827124
...at 502.
Analysis
The Davidians first argue that the returns of service were hearsay,
defined as a “statement, other than one made by the declarant while
testifying at the trial or hearing, offered into evidence to prove the truth of
the matter asserted.” § 90.801(1), Fla....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2118, 1986 Fla. App. LEXIS 9986
...forth in the complaint and was declared an adverse witness pursuant to Section
90.608(2), Florida Statutes. Subsequently, over defense objection, her sworn complaint was received in evidence for impeachment purposes and as substantive evidence under Section
90.801(2)(a). The jury found appellant guilty as charged. Appellant asserts that the complaint was inadmissible as substantive evidence under Section
90.801(2)(a)....
...the instant case. The contrasting circumstances suggest to us that the bright line test adopted by the Third District, although temptingly attractive for its ease of application, may be unduly restrictive. Of some significance to us is the fact that Section
90.801(2)(a)’s phrase “other proceeding” is not expressly restricted by such modifiers as “official” or “formal.” For example, the legislature has distinguished between penury in an official proceeding (Section
837.02) and perjury when not in an official proceeding (Section 837.-012) and has defined the term “official proceeding.” 1 We would also note that it is clear from the statutory language of Sections
90.801(2)(a) and the above perjury sections that the sworn statement, in order to qualify for admissibility under
90.801(2)(a), may be given in other than an official proceeding....
...We are not prepared to say that a sworn complaint made by a victim of a crime for the express purpose of initiating criminal prosecution must be executed before a state attorney (such as in Diamond v. State,
436 So.2d 364 (Fla. 3d DCA 1983)), or magistrate in order to qualify under Section
90.801(2)(a)....
...2 *834 This issue has also been addressed by the Fifth District in Robinson v. State,
455 So.2d 481 (Fla. 5th DCA 1984). Although Robinson held that the police questioning out of which the sworn statement of appellant’s accomplice was given did not qualify as a Section
90.801(2)(a) “other proceeding,” the Court, unlike the Third District’s bright line approach, declined to rule out the possibility that some sworn statements may still qualify under Section
90.801(2) even though they may have been elicited by a police officer. 3 Appellant also asserts that, even if the victim’s sworn statement was admissible under Section
90.801(2)(a), reversal is nevertheless required by the holding in State v....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2286, 1986 Fla. App. LEXIS 10341
Florida and the United States have created section
90.801(2)(a), Florida Statutes and Federal Rule 801
CopyPublished | Florida 4th District Court of Appeal
...A trial court’s admission of evidence over a Confrontation Clause objection
is also reviewed de novo. McWatters v. State,
36 So. 3d 613, 637 (Fla.
2010).
The trial court properly admitted the testimony because it did not fall
within the definition of hearsay. See §
90.801(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida
admitted over the father’s objection. See §
90.801(1)(c), Fla. Stat. (2020) (defining “hearsay” as
CopyPublished | Florida 3rd District Court of Appeal | 2010 Fla. App. LEXIS 16270, 2010 WL 173642
...At trial, the 911 call was introduced to establish that the defendant was armed. Because the jury believed the defendant was armed, the defendant's sentence was enhanced. Thus, the call was truly "asserted for the truth of the matter," resulting in the truth of a life sentence for the defendant. § 90.801(1)(c), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2006 Fla. App. LEXIS 17931, 2006 WL 3040664
...The State successfully urged the trial court to exclude the testimony on two grounds. For one thing, the State argued that the evidence was inadmissible hearsay. This was incorrect. Insofar as the witnesses would have related their personal observations, their testimony would not have been hearsay. See § 90.801(l)(e), Fla....
CopyPublished | Supreme Court of Florida
...subject to cross-examination concerning the statement and the
statement is . . . [c]onsistent 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.” § 90.801(2)(b),
Fla....
...saw Smith shoot Robinson.
Prior to the statements coming in through Dukes and Harper,
trial counsel objected on hearsay grounds, and the trial court
overruled the objection, finding the statements to be admissible
prior consistent statements under section 90.801(2)(b) “to rebut, if
not express, then certainly an implied fabrication based on
improper influence or other motives of favorable treatment with the
- 47 -
State, things of that sort.” Smith lodg...
CopyPublished | Florida 4th District Court of Appeal
... We agree with the defendant that the trial court erred in excluding the
third text as hearsay. “‘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.” § 90.801(1)(c), Fla....
CopyPublished | Supreme Court of Florida
...For example,
he takes issue with Sergeant Prock testifying he “overhear[d] Mr.
Boatman handing the weapon to Mr. Wells and telling him to -- he
needed to stab the inmate as well.” But for a statement to be
hearsay, it must be offered “to prove the truth of the matter
asserted.” § 90.801(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 10694, 1992 WL 282065
...The state does not support its position by citation to statute or case law. In Handbook of Florida Evidence, article VIII, section 801.1 (1987), Professor Graham discusses a group of statements which fall outside the category of hearsay as it is defined in section 90.801(l)(c), Florida Statutes....
CopyPublished | Florida 3rd District Court of Appeal | 11 Fla. L. Weekly 2167
...n his story. See §
90.803(1), (2), Fla. Stat. (1983); Lyles v. State,
412 So.2d 458 (Fla. 2d DCA 1982). Moreover, the State concedes that the testimony was not admissible to rebut a charge that the victim's trial testimony was a recent fabrication, §
90.801(2)(b), or to prove identification, §
90.801(2)(c).
CopyPublished | Florida 2nd District Court of Appeal | 2000 Fla. App. LEXIS 13279, 2000 WL 1514711
...He was not an eyewitness to the offense. He did not ,arrive at the scene until.after the acts had been completed. Therefore, the facts he recited as personal knowledge had to have come from the statements of the two victims, which makes those statements hearsay. See § 90.801, Fla....
CopyPublished | Florida 2nd District Court of Appeal | 13 Fla. L. Weekly 2310, 1988 Fla. App. LEXIS 4511
...re available and should have been subpoenaed and subjected to cross-examination. Hearsay is defined as “a statement, other than one made by a declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” § 90.801(l)(c), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal
...notice, the copy of the notice constitutes a verbal act.
The affidavits, on the other hand, were offered to prove the truth of the
matter asserted (that the notice was sent). Therefore, Holt’s hearsay
objection to the affidavits should have been sustained. See § 90.801(1)(c),
Fla....
CopyPublished | Florida 4th District Court of Appeal
...ion for
involuntary dismissal.
Analysis
“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.” § 90.801, Fla....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 16574, 2015 WL 6735332
...before granting the Homeowner’s motion for involuntary dismissal. Analysis “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.” § 90.801, Fla....
CopyPublished | Florida 5th District Court of Appeal | 2007 WL 4206948
...xception applied. The State offers two alternative bases for admission of the hearsay statement, neither of which was argued to the trial court. First, the State contends that the testimony was admissible as a prior consistent statement, pursuant to section 90.801(2)(b), Florida Statutes, because the defense attempted to show that the victim was motivated by her dislike of Pressley to fabricate the molestation allegation....
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 2764, 1989 Fla. App. LEXIS 6684, 1989 WL 142665
...We find no error, except as to the enhancement of sentencing and affirm. Staten v. State,
519 So.2d 622 (Fla.1988); Goodwin v. State,
405 So.2d 170 (Fla.1981); Hinton v. State,
347 So.2d 1079, 1080 (Fla. 3d DCA), cert. denied,
354 So.2d 981 (Fla.1977); Section
90.801(1)(c), Florida Statutes (1985); Section
90.803(18)(e), Florida Statutes (1985); Maggard v....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 17901, 40 Fla. L. Weekly Fed. D 2638
...defendant was not present during the examination). Cf.
State v. Green,
667 So. 2d at 759 (ruling that an inconsistent
discovery deposition given by a victim who recanted at trial
was not admissible as substantive evidence under section
90.801(2)(a), Florida Statutes (1989), which provided that an
inconsistent statement given under oath in a deposition was
not hearsay).
Thus, the exercise of the right to take a discovery
deposition under rul...
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 17896, 2015 WL 7566490
...See id. at D2283. In so
holding, the court noted that:
Hearsay “is a statement, other than one made by the
declarant while testifying at a trial or hearing, offered in
evidence to prove the truth of the matter asserted.
See § 90.801(1)(c), Fla. Stat. (2014) (emphasis added).
“A ‘declarant’ is a person who makes a statement.”
See § 90.801(1)(b), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2012 Fla. App. LEXIS 20193, 2012 WL 5870070
...Although appellant claims that the videotape was inadmissible hearsay, a statement of identification is not hearsay if it is “made after perceiving the person” and “if the declarant testifies at the trial ... and is subject to cross-examination concerning the statement.” § 90.801(2)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 9 Fla. L. Weekly 2445, 1984 Fla. App. LEXIS 16357
...This court has reviewed all of the numerous alleged errors directed in this cause, and finds no error. Accordingly, the judgment of conviction and sentence is hereby AFFIRMED. ANSTEAD, C.J., and HURLEY, J., concur. . Under the Florida Evidence Code which is now consistent with the Federal Evidence Code, Section 90.801(2)(a), holds that such prior inconsistent statements of a witness at a criminal trial given under oath in a judicial proceeding are excluded from the hearsay definition and may be admitted not only for impeachment purposes but also as...
CopyPublished | Florida 1st District Court of Appeal | 2007 Fla. App. LEXIS 18443, 2007 WL 4106475
...As a technical matter, however, as the State correctly argues, 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: [o]ne of identification of a person made after perceiving the person.” § 90.801(2)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 2438, 1986 Fla. App. LEXIS 11617
...Delgado-Santos,
497 So.2d 1199 (Fla.1986), the pendency of which case was noted at footnote three of our opinion. In Delgado-Santos , the Supreme Court held that a “police interrogation” was not intended to be an “other proceeding” within the meaning of Section
90.801(2)(a), Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 1998 WL 796726
...ourt identification of Evans was repeatedly mentioned to the jury. On appeal, the State concedes that Crispino’s failure to testify at trial rendered all of the testimony regarding her out-of-court identification of Evans inadmissible hearsay. See § 90.801(2)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal
...came from
Sentz recounting what the server had told her. The server’s statement to
Sentz is hearsay, as it is an out of court statement “offered in evidence to
prove the truth of the matter asserted”—that BFG had actual notice of the
spill. § 90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2001 Fla. App. LEXIS 16034, 2001 WL 1414740
...State,
774 So.2d 846 (Fla. 4th DCA 2000)(en banc), revieio granted, No. SC01-183,
790 So.2d 1107 (Fla. Jun. 12, 2001), this court held that such a description, made right after the victim perceives his assailant, constitutes non-hearsay identification under section
90.801(2)(c), Florida Statutes (1999)....
...State,
605 So.2d 856, 862 (Fla.1992), which reached the same conclusion. It conflicted, however, with the supreme court’s reasoning in Swafford v. State,
533 So.2d 270 (Fla.1988), wherein the court held that a description is not an identification for purposes of section
90.801(2)(c)....
CopyPublished | Florida 4th District Court of Appeal
...requirements for self-authentication. And, unless clearly
erroneous, the trial court’s determination must stand.
Symonette v. State,
100 So. 3d 180, 183 (Fla. 4th DCA 2012) (internal
citations and quotation marks omitted).
13
Section
90.801(1)(c), Florida Statutes (2019), provides: “‘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.”
Regarding...
CopyPublished | Florida 4th District Court of Appeal
...examination
concerning that statement; and the statement is offered to rebut an
express or implied charge . . . of improper influence, motive, or recent
fabrication.” Id. at 23 (quoting Chandler v. State,
802 So. 2d 186, 197 (Fla.
1997)); see also §
90.801(2)(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 11545, 1992 WL 324880
...We believe that defense counsel below correctly argued that testimony regarding the comments made by the detectives during the encounter which resulted in appellant’s arrest and the conversations during other confrontations between appellant and Detectives Johnston and Smith was not hearsay. Section 90.801(1)(c), Florida Statutes, defines “[h]earsay” as “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 ” (emphasis added)....
CopyPublished | Florida 4th District Court of Appeal
...However, the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Burkey v. State,
922 So.2d 1033, 1035 (Fla. 4th DCA 2006). The state does not dispute that the testimony the defense objected to is hearsay. See §
90.801(l)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 3190
...The fact said to indicate the motive, Jennifer’s desire to maintain her sexual relationship with her boyfriend, took place when she first engaged in sexual intercourse with the boyfriend. According to Jennifer’s testimony, this occurred one week before she reported her father to the authorities. Section 90.801(2)(b), Florida Statutes (1985), sets forth the following exception to the general rule against admissibility of hearsay evidence: A statement is not hearsay if the de-clarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: [[Image here]] Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication.... However, section 90.801(2)(b) permits the admission of only prior consistent statements made before the existence of the facts said to indicate an improper influence....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 1829484, 2017 Fla. App. LEXIS 6318
...of
the evidence code or case law construing the code. See id.
" 'Hearsay' is a statement, other than one made by the declarant while
testifying at the trial . . . , offered in evidence to prove the truth of the matter asserted."
§ 90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 6344, 2011 WL 1661413
...However, “[h]earsay evidence is admissible in violation of probation hearings and can sustain a violation when corroborated by direct evidence.” Robertson v. State,
800 So.2d 338, 339 (Fla. 3d DCA 2001) (citing Morris v. State,
727 So.2d 975 (Fla. 5th DCA 1999)). Section
90.801(l)(c), Florida Statutes (2010), defines hearsay as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” At Hendricks’s viola...
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 2320821, 2013 Fla. App. LEXIS 8452
...their father. We review a ruling on the admissibility of evidence for abuse of discretion as limited by the rules of evidence. Bryant v. State,
17 So.3d 713, 715 (Fla. 4th DCA 2009) (citing Nardone v. State,
798 So.2d 870, 874 (Fla. 4th DCA 2001)). Section
90.801(2)(c) deals with identification testimony....
...[o]ne of identification of a person made after perceiving the person.” (Emphasis added). Appellant contends that in order for a statement to be non-hearsay the declarant must testify at trial. In Hayes v. State,
581 So.2d 121, 124 (Fla.1991), our supreme court determined that section
90.801(2)(c) requires the de-clarant to testify at trial....
...ather who it was. At trial the father was allowed to testify as to what his son had told him— that he had recognized one of the other codefendants who was with Hayes at the crime scene. The defense objected that the evidence was inadmissible under section 90.801(2)(c), because the declarant (the son) did not testify at trial....
...The state *407 argued that the statement was admissible because it was one of identification made after perceiving the defendant. The court overruled the objection and admitted the father’s statement of what the thirteen-year-old son had said. The Florida Supreme Court ruled that section 90.801(2)(c) allowed admission of statements of identification, and thus excluded them from the definition of hearsay, only if the declarant also testified at trial....
CopyPublished | Supreme Court of Florida | 22 Fla. L. Weekly Supp. 295, 1997 Fla. LEXIS 719, 1997 WL 280066
out-of-court statements and in-eourt testimony in' section
90.801, Florida *1161Statutes (1995), in defining
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 5832, 1997 WL 276283
...1st DCA 1986) (description is not identification). Nor can it be justified as testimony that is admitted to rebut an express or implied charge of improper influence, motive, or recent fabrication, for there was no such contention in this case. See § 90.801(2)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2005 Fla. App. LEXIS 8048, 2005 WL 1250244
...ement standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt. We reiterate that decision today, finding that our holding in Moore II applies regardless of whether the prior inconsistent statement is admitted under section
90.801(2)(a) or section
90.803(23)....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 7959, 2016 WL 3002176
...allegation to protect herself.
“A trial court is given broad discretion in determining whether to admit
or exclude evidence, but its discretion is limited and governed by the
statutory Evidence Code.” Neal v. State,
50 So. 3d 96, 97 (Fla. 4th DCA
2010). Section
90.801(1)(c), Florida Statutes (2012), defines hearsay as “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.”
As discussed above,...
CopyPublished | Florida 1st District Court of Appeal | 2013 WL 2249290, 2013 Fla. App. LEXIS 8260
...State,
54 So.3d 1086, 1088 (Fla. 1st DCA 2011). Prior consistent statements, which normally would be inadmissible hearsay, are admissible if “offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication^]” §
90.801(2)(b), Fla. Stat. (2011). To be admissible under section
90.801(2)(b), “the [consistent] statement must have been made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.’” Ortuno , 54 So.Sd at 1088-89 (quoting Preston v. State,
470 So.2d 836, 837 (Fla. 2d DCA 1985)). “A prior consistent statement is not admissible under section
90.801(2)(b) ‘merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.’” J.B.J....
...Thus, the circumstances supporting a motive to fabricate arose as early as March 2011, when the victim moved in with Appellant and his family. Accordingly, only the consistent statement she made before that time-the first text message to her boyfriend during a weekend stay with Appellant-was admissible under section 90.801(2)(b)....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 2973, 1990 WL 54984
...What is the date of that form? A. 3/7/87 but there is, nobody signed it down that I can read. Signature of office manager. Over appellants’ renewed objections, the document itself was later introduced into evidence. We reverse. The document was hearsay evidence. § 90.801(l)(a) and (c), Fla.Stat. (1985). The author of the document did not testify at trial. See § 90.801(2), Fla.Stat....
CopyPublished | Florida 4th District Court of Appeal
...making the prior inconsistent statement, extrinsic
4
evidence of such statement is admissible.
(emphasis added). If a prior inconsistent statement was made under oath,
it may be admissible as substantive evidence. See § 90.801(2)(a), Fla....
...d the State
addressed the statement twice during closing argument. Id. at 1106-07.
The Fifth District held that the prior statement was not admissible as
substantive evidence, because it was not given under oath at another
proceeding, as required by section 90.801(2)(a), Florida Statutes....
CopyPublished | District Court of Appeal of Florida | 1980 Fla. App. LEXIS 16193
been codified into the new evidence code. See §
90.801(2)(c), Fla.Stat. (1979). Appellant having failed
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 19345
...He also argues that the proffered testimony was admissible to impeach Connie. Connie freely admitted changing his account of events. The proffer is not inconsistent with his trial testimony except as to the collateral issue of whom Connie told the Willie Wong version. No error was made in excluding this, Section 90.801(2), Florida Statutes (1981); Whaley v....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 4400, 1996 WL 210827
...According to that memorandum, Hill had said that defendant had asked Hill to testify that Glynn had balanced the drawer alone. Both Glynn’s testimony as to what Hill told her, and Glynn’s written memorandum of that conversation, are classic examples of hearsay, as defined by section 90.801(l)(c), Florida Statutes (1993)....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 3161, 2011 WL 798519
...“ ‘Generally, prior consistent statements are inadmissible to corroborate or bolster a witness’s trial testimony’” because they are usually hearsay, but a prior consistent statement may be admitted as nonhearsay if certain conditions are met.” Id. (quoting Taylor v. State,
855 So.2d 1, 22-23 (Fla.2003)). Under section
90.801(2)(b), Florida Statutes (2008), prior statements of a witness that are “ ‘[cjonsis-tent with the declarant’s testimony and are offered to rebut an express or implied charge against the declarant of improper influence, motive, or...
CopyPublished | District Court of Appeal of Florida | 14 Fla. L. Weekly 619, 1989 Fla. App. LEXIS 1187, 1989 WL 20679
...ave been granted. We agree and reverse. This case presents the precise question decided in State v. Delgado-Santos,
497 So.2d 1199 (Fla.1986). The Delgado court held that police interrogations did not constitute “other proceedings” as defined by §
90.801(2)(a), Florida Statutes 2 and therefore such out of court statements by a co-perpetrator were hearsay and not admissible at trial as substantive evidence....
...sk whenever an acquaintance is murdered under mysterious and unexplained circumstances. REVERSED and REMANDED with directions to discharge the defendant. DAUKSCH and COBB, JJ., concur. . By this time Hogan had already been convicted of the murder. . § 90.801(2)(a) provides: (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 his testimony and was given under oat...
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 1728, 1991 WL 27515
...y built and that Owen’s Corning had said so in a letter. The conclusion is inescapable that the document was used, albeit surreptitiously, to assert the truth of the matter contained therein. This constituted impermissible use of hearsay evidence. § 90.801, Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 2444, 1999 WL 110773
...ents stolen from the store to testify as to their value based solely upon price tags affixed to the garments, without a proper foundation having been laid for the admission of such testimony as a “business records” exception to the hearsay rule, section 90.801 et seq., Florida Statutes (1997)....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 2155, 1998 WL 88183
...In his version of the events, James was the aggressor and Brown acted in self defense. No gun was found in this case, and the investigating officer saw no other weapons in the area. An hour and a half later, Brown turned himself in at the police station. Under section 90.801(l)(e), Florida Statutes (1995), 1 hearsay is a statement other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted....
CopyPublished | Florida 2nd District Court of Appeal | 2017 WL 1202398, 2017 Fla. App. LEXIS 4371
...the testimony and the State’s reference to it during closing arguments. The trial court denied the motion by written order, finding that “[wjhile the victim’s description of his assailant is not an ‘identification’ under Florida Statute - 90.801(2)(c)[,] ......
...alls under a hearsay exception. See Puryear v. State,
810 So.2d 901, 906 (Fla. 2002) (holding that testimony by two witnesses regarding the victim’s out-of-court description of the assailant was not admissible as statements of identification under section
90.801(2)(c), Florida Statutes (1999), because a description is not an identification); Swafford v....
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 4324, 2011 WL 1135247
...The state responded that the defense’s cross-examination suggested that Ditullio had recently fabricated her testimony based on a plea deal she made with the state. Agreeing that the state offered the witness’s prior statement to rebut an implied charge of improper influence or motive, the trial court admitted it under section 90.801(2)(b), Florida Statutes (2009)....
...Prior consistent statements are generally inadmissible to bolster or corroborate a witness’s trial testimony, as the statements are usually hearsay. Id. To be admissible, the prior consistent statement must qualify as a hearsay exception, or otherwise meet the requirements of non-hearsay under section
90.801(2)(b). Bradley v. State,
787 So.2d 732, 743 (Fla.2001). Section
90.801(2)(b) provides that “[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: ......
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 2723, 1991 WL 77619
...ivens’, would indicate that McCoy could not have been guilty of the crime charged. 4. At the time Perry was decided, the prior inconsistent statements could not have been introduced as substantive evidence, but only for impeachment purposes. Under section 90.801(2)(a), Florida Statutes (1989), the prior inconsistent statement, if admitted, could have been used as substantive evidence....
...This court in Mazzara v. State,
437 So.2d 716 (Fla. 1st DCA 1983), held that the state could impeach a witness who had confessed to being hired to commit a murder by the defendant and at trial, denied any involvement with the defendant. . It is not totally clear that §
90.801(2)(a) would independently justify the admission of a prior inconsistent statement by a party calling a witness....
CopyPublished | Florida 2nd District Court of Appeal | 2008 Fla. App. LEXIS 4371
...Id. When testimony concerning the estimated cost of repairs to damaged property is “offered in evidence to prove the truth of the matter asserted,” it is “hearsay” unless “made by the declarant while testifying at the trial or hearing.” § 90.801(l)(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...reviewed de novo. Cannon v. State,
180 So. 3d 1023, 1037 (Fla. 2015). A
hearsay statement 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.” §
90.801(1)(b), Fla....
CopyPublished | Florida 5th District Court of Appeal | 1997 WL 136403
...ogether and everyone would be happy again. The court ruled the testimony inadmissible on the ground that it was hearsay, but it was not hearsay because it was not offered to prove that the family would be reunited if Kearney were out of the way. See § 90.801(1)(c), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 2503, 34 Fla. L. Weekly Fed. D 828
...that it vitiated the defendant’s right to a fair trial. The State asserts that the statement did not vitiate the entire trial. We agree with the State. First, we are not convinced that the detective’s statement constitutes hearsay evidence. See § 90.801(1)(2), Fla....
CopyPublished | Florida 3rd District Court of Appeal
...out-of-court statements by Drs. Sinkovics and Altemose were hearsay in this case.
Under the Florida Evidence Code, “[h]earsay” is defined as an out-of-court
statement “offered in evidence to prove the truth of the matter asserted.” §
90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal
...nvolvement in the other crimes.
The State repeats its response that the other crimes evidence was
irrelevant and inadmissible. The State also responds that Forbes’
statement in the interview was self-serving hearsay and inadmissible. See
§ 90.801(b), Fla....
CopyPublished | District Court of Appeal of Florida | 1983 Fla. App. LEXIS 18841
her grand jury testimony was hearsay under Section
90.801(l)(c), Florida Statutes (1981), and does not
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 3310, 27 Fla. L. Weekly Fed. D 615
...Dreggors and of those proceedings, only for purposes of impeachment.” If this is interpreted as allowing only Ms. Dreggors’s prior testimony to be *173 used for impeachment, it is an unwarranted limitation on the general rule of impeachment. See § 90.801(2), Fla....
CopyPublished | District Court of Appeal of Florida | 11 Fla. L. Weekly 639, 1986 Fla. App. LEXIS 6760
...ssible over objection in civil actions. This paragraph applies only to proceedings under s.
120.57. The proceeding in question was under section
120.57. We recognize that the original sworn statement to the investigator would not be admissible under section
90.801(2), Florida Statutes (1983) 2 were this not a proceeding under the APA....
...This is not a criminal trial. DOWNEY and LETTS, JJ., concur. . The filing of exceptions to the hearing officer’s recommended order is not, as contended by respondent, a prerequisite to review by an appellate court. Ace Delivery Service v. Boyd,
100 So.2d 417 (Fla.1958). . Section
90.801(2)(a) provides: (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 his testimony and was given unde...
CopyPublished | Florida 5th District Court of Appeal | 1995 Fla. App. LEXIS 2361
statements made in an “other proceeding” under section
90.801(2)(a) and, therefore, such statements are not
CopyPublished | Florida 3rd District Court of Appeal
...Ledoux,
230 So. 3d 530, 536 (Fla. 3d
DCA 2017). We also review the trial court’s denial of a motion for new trial
for an abuse of discretion. Id. at 538.
5
that the witness has personal knowledge of the matter.”); §
90.801(1)(c), Fla.
Stat....
CopyPublished | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 7203
...regarding the incident between Appellant and the victim. The State asked the officer what J.E.A. had told him, and Appellant’s counsel objected on the grounds that it was a prior consistent statement and hearsay. The State responded that it was admissible under section 90.801(2)(b), Florida Statutes, as a prior consistent statement to rebut Appellant’s counsel’s suggestion on cross-examination that J.E.A....
...Next, we consider Appellant’s challenge to the officer’s testimony. Appellant argues on appeal that the officer’s testimony regarding J.E.A.’s prior consistent statement, that “[J.E.A.] observed the victim ... performing oral sex on the suspect,” failed to meet the requirements of section 90.801(2)(b), Florida Statutes (2008)....
...Prior consistent statements are generally inadmissible to corroborate or bolster a witness’s trial testimony because such statements are usually hearsay. See Taylor v. State,
855 So.2d 1, 22-23 (Fla.2003); Chandler v. State,
702 So.2d 186, 197 (Fla.1997); McElveen v. State,
415 So.2d 746, 748 (Fla. 1st DCA 1982). Section
90.801(2), Florida Statutes (2008), provides an exception to this general rule where “the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and that statement is: .... (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.” Additionally, to be admissible under section
90.801(2)(b), the prior consistent statement must have been made “before the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.” Taylor,
855 So.2d at 23 ; see also Keffer v....
...has successfully occurred, then prior consistent statements are admissible on the redirect examination or through subsequent witnesses to show the consistency of the witnesses] trial testimony.” A prior consistent statement is not admissible under section
90.801(2)(b) “merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.” See Monday v. State,
792 So.2d 1278, 1280 (Fla. 1st DCA 2001) (citing Jenkins,
547 So.2d at 1020-21 ). In the instant case, the first condition for admitting prior consistent statements under section
90.801(2) was met because J.E.A....
...told him that the victim performed fellatio on Appellant and suggested that J.E.A. was merely repeating M.B.’s allegations, not that M.B. was influencing J.E.A. to testify against Appellant. This does not constitute an “improper influence” under section 90.801(2)(b)....
...Thus, J.E.A.’s account of the crime to the investigating officer was not made prior to M.B.’s alleged influence. We conclude that the trial court erred in admitting the investigating officer’s hearsay testimony of J.E.A.’s prior consistent statement under section 90.801 (2)(b)....
CopyPublished | Florida 4th District Court of Appeal
...Further, an
officer who came to the scene also described the victim as in shock. The
victim sounded stunned and extremely concerned that she was still in
danger. The court acted within its discretion in admitting the tape. 1
1 Moreover, it appears that the 911 call could have been admissible as non-
hearsay under section 90.801(2)(b), Florida Statues, as the victim/declarant
testified at the trial and was subject to cross-examination regarding her
statements....
CopyPublished | Florida 3rd District Court of Appeal | 2002 Fla. App. LEXIS 7670, 2002 WL 1173861
...nt] was molesting her.” The court ruled that statement inadmissible. That ruling was error. The statement was not hearsay, as it was not offered to prove the truth of its contents. See Kearney v. State,
689 So.2d 1310 (Fla. 5th DCA 1997); see also section
90.801(1)(c), Florida Statutes (1997)....
CopyPublished | Florida 2nd District Court of Appeal | 2016 WL 3127523, 2016 Fla. App. LEXIS 8474
...dmissible. See Henderson v. State,
135 So.3d 472, 476 (Fla. 2d DCA 2014); see also §
90.805, Fla. Stat. (2010). Money’s alleged statement' to Bumbalough might have been admissible to rebut an 'express or implied charge of recent fabrication under section
90.801(2)(b), Florida Statutes (2010)—if Bumbalough had testified to it in court....
CopyPublished | Florida 4th District Court of Appeal | 12 Fla. L. Weekly 1393, 1987 Fla. App. LEXIS 8539
PER CURIAM. We find no error in the trial court’s admission of the victim’s prior consistent statement pursuant to section 90.801(2)(b), Florida Statutes (1985)....
CopyPublished | Florida 6th District Court of Appeal
...State,
336 So. 3d 218, 234 (Fla. 2022) (quoting
Tundidor v. State,
221 So. 3d 587, 598 (Fla. 2017)). “However, the question of
whether a statement is hearsay is a matter of law and is subject to de novo review on
appeal.” Id.
Hearsay is defined in Section
90.801(1)(b), Florida Statutes (2023), as “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.”9 “Thus, if the
statement is offere...
...authority to revoke
that permission absent some grant of authority from Ms. Stanley to do so. There
was no evidence of any such grant of authority presented at trial.
9
At the time of the trial below, this definition was contained in Section
90.801(1)(c) rather than Section 90.801(1)(b). The subsection number for the
definition of hearsay was changed pursuant to an amendment to Section 90.801 that
took effect on July 4, 2023....
...As a result, the trial court determined that Smith
never “crossed [the] threshold to get into” the “threat” itself.
On appeal, Smith mounts no challenge against those rulings, so the majority
does not address them. Those rulings were correct. See § 90.801(1)(b), Fla....
CopyPublished | Florida 6th District Court of Appeal
...State,
336 So. 3d 218, 234 (Fla. 2022) (quoting
Tundidor v. State,
221 So. 3d 587, 598 (Fla. 2017)). “However, the question of
whether a statement is hearsay is a matter of law and is subject to de novo review on
appeal.” Id.
Hearsay is defined in Section
90.801(1)(b), Florida Statutes (2023), as “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.” 9 “Thus, if the
statement is offer...
...authority to revoke
that permission absent some grant of authority from Ms. Stanley to do so. There
was no evidence of any such grant of authority presented at trial.
9
At the time of the trial below, this definition was contained in Section
90.801(1)(c) rather than Section 90.801(1)(b). The subsection number for the
definition of hearsay was changed pursuant to an amendment to Section 90.801 that
took effect on July 4, 2023....
...As a result, the trial court determined that Smith
never “crossed [the] threshold to get into” the “threat” itself.
On appeal, Smith mounts no challenge against those rulings, so the majority
does not address them. Those rulings were correct. See § 90.801(1)(b), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2013 WL 3197138, 2013 Fla. App. LEXIS 10078
...State,
486 So.2d 578 (Fla.1986). “Prior consistent statements are generally inadmissible to corroborate or bolster a witness’s trial testimony, because such statements are usually hearsay.” Peterson v. State,
874 So.2d 14, 16 (Fla. 4th DCA 2004). However, section
90.801(2)(b), Florida Statutes (2011) provides: (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: [[Image here]] (b) Consistent...
CopyPublished | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 9130
...previously stated that the Father intentionally struck her were improperly admitted as substantive evidence. Although R.K.’s prior statements to that effect were inconsistent with her trial testimony, the evidence at trial did not reflect that R.K’s prior statements were sworn or otherwise met the requirements of section 90.801(2)(a)....
...r section
90.803(23) were not met. Therefore R.K.’s statements were not admissible as substantive evidence and could only be used for impeachment. See L.R. v. Dep’t of Children & Family Servs.,
947 So.2d 1240, 1244 (Fla. 2d DCA 2007) (citing §
90.801(2) and Smith v....
CopyPublished | Florida 3rd District Court of Appeal
evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (2018). There is no question
CopyPublished | Florida 3rd District Court of Appeal
evidence to prove the truth of the matter asserted." §
90.801(1)(c), Fla. Stat. (2018). There is no question
CopyPublished | Florida 2nd District Court of Appeal
...fell
under the identification exception to the hearsay rule.
" '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." § 90.801(1)(c), Fla....
...As an exception, "[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 . . . [o]ne of identification of a person
made after perceiving the person." § 90.801(2)(c).
The State first argues that the trial testimony of the interviewing
investigators was not hearsay but fell under the identification exception of section
90.801(2)(c)....
CopyPublished | Florida 3rd District Court of Appeal
...Instead, issues under the rubric of expert testimony
and authentication take predominance.” Id. at § 246 (footnotes omitted).11
In Florida, the rule against hearsay is consistent with the age-old
common law reasons for excluding out-of-court statements. Section
90.801(1)(c) defines hearsay as “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.”12 Hearsay, therefore, has two components:
it is (1) an out-of-court statement and (2) offered to prove the truth of the
matter asserted. With respect to the statement component, section
90.801(1)(b) provides that “[a] ‘declarant’ is a person who makes a
11
See also Michael H....
CopyPublished | Florida 4th District Court of Appeal | 2016 WL 3268345, 2016 Fla. App. LEXIS 9269
...“Except as provided by statute, hearsay
evidence is inadmissible.” §
90.802, Fla. Stat. (2014). The State argues
on appeal that the out-of-court statements made by Appellant’s friend
were an “identification of a person made after perceiving the person,”
which is excluded from the definition of hearsay under section
90.801(2)(c), Florida Statutes.
The statements, however, went far beyond mere “identification,” and in
fact described the two individuals’ activities for the entire day leading up
to Appellant’s arrest....
CopyPublished | Florida 4th District Court of Appeal | 2017 WL 2569782, 2017 Fla. App. LEXIS 8668
...However, in this case, Sammiel’s statement was not proper impeachment evidence. Therefore, we reverse. "hARSAY" deis defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 2122162, 2012 Fla. App. LEXIS 9580
...This ruling was incorrect; a prior inconsistent statement “is not hearsay, because it is not offered to prove its truth, only to show the inconsistency for impeachment purposes.” Marshall v. State,
68 So.3d 374, 375 (Fla. 5th DCA 2011); see also §
90.801(l)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 5637, 1991 WL 104636
...1 This testimony was erroneously characterized as hearsay as it was not adduced to prove the truth of the statement but only to prove that AmSouth, through its agents, had made certain statements to Mr. and Mrs. Windham on which the latter had relied to her detriment. § 90.801, Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2016 WL 3201073, 2016 Fla. App. LEXIS 8937
...about the change of the vehicle's registration was inadmissible hearsay. The analysis is
quite straightforward. The detective was merely reporting what he had been told by a
person or persons unknown at the tag agency. This is classic hearsay. See
§ 90.801(1)(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 1997 Fla. App. LEXIS 7761, 1997 WL 375042
...3d DCA 1996), was sufficient to support the conviction. Everhart v. State,
592 So.2d 352 (Fla. 3d DCA 1992), review denied,
602 So.2d 532 (Fla.1992), is not controlling because the sole evidence relied upon there was apparently “pure” hearsay as defined by section
90.801(1), Florida Statutes (1995)....
CopyPublished | Florida 4th District Court of Appeal | 1992 Fla. App. LEXIS 7348, 1992 WL 153965
...*1314 We agree with the state that the “information” was not inadmissible hearsay. It was not offered to show that appellant had committed the robbery, but instead to show why the witness prepared an array of photographs that included appellant’s. See § 90.801(1)(c), Fla.Stat....
CopyPublished | Supreme Court of Florida
evidence to prove the truth of the matter asserted.” §
90.801(1)(c), Fla. Stat. (2022). “Except as provided
CopyPublished | District Court of Appeal of Florida | 12 Fla. L. Weekly 1853, 1987 Fla. App. LEXIS 9609
error as the testimony clearly was hearsay, see §
90.801(l)(c), Fla. Stat. (1985), not subject to any of
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 11412, 2016 WL 4016346
...tered to the defendant. We begin with the statutory definition of hearsay. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 8500, 1997 WL 413801
...The only statements that supported Thomas’ possession of a gun were those given during the police interview, the transcripts of which were used to impeach the two witnesses. The state asserts that prior inconsistent statements qualify as substantive evidence of prior identification pursuant to section 90.801(2)(c), Florida Statutes (1995)....
...Lawrence. The inconsistency is with respect to their out-of-court and in-court statements regarding Thomas’ possession of a firearm. In Delgado-Santos v. State,
471 So.2d 74 (Fla. 3d DCA 1985), aff'd,
497 So.2d 1199 (Fla.1986), the court analyzed section
90.801(2)(a), Florida Statutes, permitting prior inconsistent statements to be used as substantive evidence rather than solely for impeachment purposes if “given under oath ... at a trial, hearing, or other proceeding or in a deposition,” and determined that a police interrogation was not a “proceeding” under section
90.801(2)(a) so as to permit a trial witness’ inconsistent statement made during a police interrogation to be admitted as substantive evidence....
...State,
651 So.2d 1239 (Fla. 5th DCA 1995) (prior statement of an alleged eye witness made during a police interrogation that she saw defendant break into the victim’s residence was not made in an “other proceeding” and was not admissible under section
90.801(2)(a))....
CopyPublished | Florida 1st District Court of Appeal
...hearsay statements and that the statements were not relevant and
were prejudicial. “Hearsay” is defined as “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.” §
90.801(1)(c), Fla....
CopyPublished | Supreme Court of Florida
evidence to prove the truth of the matter asserted,” §
90.801(1)(c), Fla. Stat. (2014). The Evidence Code defines
CopyPublished | Florida 3rd District Court of Appeal | 2000 Fla. App. LEXIS 9037, 2000 WL 986370
...ried the gun to the murder scene. The State then announced that it intended to introduce a prior consistent sworn statement from Benjamin that defendant had carried the gun to the crime scene. The State argued that the statement was admissible under § 90.801, Fla....
...s subject to cross-examination concerning the statement and the statement is 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. § 90.801(2)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 1999 Fla. App. LEXIS 9253, 1999 WL 493493
...Stanley in her bed, he asked her what had transpired. Mr. Sallins testified that Ms. Stanley said Mr. Young had struck him. Mr. Salims’ statement is hearsay. It is an out of court statement offered to prove the truth of the matter asserted, i.e., that Mr. Young struck Mr. Sallins. See § 90.801(l)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal
...Summerall told her to call the police because
appellant was going to shoot her and was on his way over to her house.
We agree with appellant’s argument that the testimony concerning Mary
Summerall’s calls constituted hearsay as defined in section 90.801(1)(c), Florida
Statutes....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 10808, 2005 WL 1631087
...er [the victim’s] father was paying her off to say Hector [defendant] was molesting her.” The statement was not hearsay, as it was not offered to prove the truth of its contents. See Kearney v. State,
689 So.2d 1310 (Fla. 5th DCA 1997); see also section
90.801(1)(c), Florida Statutes (1997)....
...nt] was molesting her.” The court ruled that statement inadmissible. That ruling was error. The statement was not hearsay, as it was not offered to prove the truth of its contents. See Kearney v. State,
689 So.2d 1310 (Fla. 5th DCA 1997); see also section
90.801(1)(c), Florida Statutes (1997)....
CopyPublished | Supreme Court of Florida
...Wolf’s van was a match to the car parts found at Vaca Cut.
Hearsay is defined as “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.” § 90.801(1)(c),
Fla....
CopyPublished | Florida 5th District Court of Appeal | 40 I.E.R. Cas. (BNA) 1760, 2016 Fla. App. LEXIS 312, 2016 WL 81680
...We agree with Mootry on issues two and three. Accordingly, we reverse the final judgment in favor of BCU and remand for a new trial. 4 Brewer Report Mootry argues that the trial court erred in admitting Brewer’s investigation report because it contained numerous hearsay statements. Section 90.801, Florida Statutes (2013), defines “hearsay” as “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.” The trial court recogni...
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 221, 2016 WL 67357
...d.
First, we hold the trial court did not err by admitting testimony
recounting Appellant’s co-conspirator’s statements. Out-of-court
statements offered for the truth of the matter asserted are hearsay and
generally inadmissible. § 90.801, Fla....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 65
...Accordingly, de *1138 fendant’s judgment and disposition must be reversed. REVERSED and REMANDED. DAUKSCH and GOSHORN, JJ., concur. . §§
893.13(1)(a)1.,
893.03(2)(a)4., Fla.Stat. (1993). . §§
893.13(6)(a),
893.03(2)(a)4., Fla.Stat. (1993). . See §
90.801(1)(c), Fla.Stat....
CopyPublished | District Court of Appeal of Florida | 1995 Fla. App. LEXIS 28, 1995 WL 1525
...However, at trial, she recanted her earlier accusations against Green and stated instead that he had not committed those offenses against her and that she had never told anyone that he had. Thereupon, over defense counsel’s objection, pursuant to section 90.801(2)(a), the trial court allowed the state to read to the jury the victim’s deposition testimony....
...The primary issues on appeal which we find necessary to address are whether the deposition testimony was admissible as substantive evidence, and if so, was the evidence in this ease sufficient to sustain appellant’s conviction. We find that the deposition was admissible as substantive evidence. Section
90.801(2)(a), Florida Statutes, provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination, and the statement is inconsistent with her testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition. Clearly, the challenged deposition meets those requirements and was admissible evidence under that statute. In Moore v. State,
452 So.2d 559 (Fla.1984), the court declared: We therefore hold that under section
90.801(2)(a), Florida Statutes (1981), the prior inconsistent statement of a witness at a criminal trial, if given under oath before a grand jury, is excluded from the definition of hearsay and may be admitted into evidence not only for impeachment purposes but also as substantive evidence on material issues of fact. We believe that the constitutional right of the accused to confront the witnesses against him requires that the declarant testify at the trial or hearing at which the state seeks to introduce the prior statement as substantive evidence. Section
90.801(2)(a) safeguards this right by requiring that the declarant appear as a witness and be available for cross-examination. (Emphasis supplied.) 1 In considering the question of the sufficiency of the evidence, we recognize that the supreme court has qualified its determi *791 nation that statements admissible pursuant to
90.801(2)(a) may be considered as substantive evidence by later ruling that a prior inconsistent statement, even one admissible pursuant to the above statute, does not constitute sufficient evidence to sustain a conviction when the prior inconsistent statement is the only substantive evidence of guilt....
...Recognizing the impact in cases of this type of our ruling in this case, we certify the following question to be one of great public importance: WHEN AN ALLEGED VICTIM OF CHILD SEXUAL ABUSE RECANTS AT TRIAL, DOES HER PRIOR INCONSISTENT STATEMENT, ADMISSIBLE PURSUANT TO SECTION 90.801(2)(a), FLORIDA STATUTES, CONSTITUTE SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION WHEN THE ONLY OTHER EVIDENCE OF THE DEFENDANT’S GUILT IS OTHER PRIOR INCONSISTENT STATEMENTS MADE BY THE VICTIM, WHICH HAVE BEEN FOUND TO BE RELIABLE AND...
...considered the remaining issues raised by appellant and find them to be without merit. REVERSED. ERVIN, J., concurs and dissents, with written opinion. MINER, J., concurs in part, and dissents in part, with written opinion. . Note the commentary to section 90.801(2)(a), Florida Statutes, which states: Paragraph (a) This paragraph excludes from the definition of hearsay certain out-of-court statements by a witness who testifies at the trial or hearing and is subject to cross-examination....
...to prove. The mental gymnastics required to articulate and segregate the use of prior statements for impeachment purposes only makes the limitation rule a formalistic fiction in disregard of realism. See also the commentary on the 1978 amendment to 90.801(2)(a), which relates: Subsection (2) (a) This subsection was amended to exclude from the definition of hearsay statements made by a witness who testifies and is subject to cross-examination when the statements are inconsistent with the testimo...
CopyPublished | Florida 2nd District Court of Appeal | 2007 Fla. App. LEXIS 1056, 2007 WL 258145
...Department of Children & Family Services,
947 So.2d 1240 (Fla. 2d DCA 2007) is being issued simultaneously with this opinion. . The second amended petition for dependency. . L.R.'s police reports, which DCF used to substantiate J.C.’s violence, were hearsay. §
90.801(1), Fla....
...contended that the reports did not accurately recount the statements she made to the police. Because we hold that these documents did not support the dependency adjudication as to J.C., we will not discuss whether the reports might have been admissible as substantive evidence pursuant to the hearsay exception in section 90.801(2)....
CopyPublished | Florida 2nd District Court of Appeal | 2007 Fla. App. LEXIS 1047
...The circuit court specifically found that his explanation was not credible. Even so, this document was not sufficient to support the circuit court’s finding that the parties had engaged in violence in the children’s presence. Obviously, the document was hearsay. § 90.801(1), Fla. Stat. (2005). Section 90.801(2)(a) provides an exception to the hearsay rule if the declarant testifies at trial, is subject to cross-examination concerning the statement, and “the statement is inconsistent with the declarant’s testimony and was given under oa...
...did testify, and he disavowed his prior written assertion that L.R.’s violence had taken place in the children’s presence. Thus, his written statement in support of the request for a domestic violence injunction against L.R. was a prior inconsistent statement. But the statement was not made in the manner described in section 90.801(2), i.e., under oath in a trial or other proceeding. Therefore, it did not meet the requirements of the section 90.801(2)(a) hearsay exception and was not admissible as substantive evidence....
CopyPublished | District Court of Appeal of Florida | 1986 Fla. App. LEXIS 6038, 11 Fla. L. Weekly 281
...The only statement of identification made was Guistiani’s identification of himself as Tom Reynolds. 1 Since there was no statement of identification made of a person after perceiving him, there was no statement made which qualifies as “not hearsay” under section 90.801(2)(e)....
CopyPublished | Florida 3rd District Court of Appeal
...The objection was initially sustained and counsel for both the state and the defendant went into a discussion with the court at side-bar. During this side-bar conference, the state argued to the trial court that the testimony was admissible as a prior consistent statement under section 90.801(2)(b), Florida Statutes (1979)....
...On appeal, the defendant claims the admission of this testimony improperly permitted the state to bolster the testimony of a critical witness with his prior consistent statement. The state's only colorable argument on appeal in support of the admission of the testimony is that it was admissible under section 90.801(2)(b), Florida Statutes (1979)....
...he existence of the motive; and prior inconsistent statements when there was an issue of whether the prior inconsistent statement was ever actually made. See Kellam. With the adoption of the Florida Evidence Code, the exceptions became the rule. See § 90.801(2)(b), Fla. Stat. (1979). Section 90.801(2)(b) provides: 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: ........
...Thus, defense counsel implied to the jury that Martin's memory of the actual facts might be tainted by discussions with police that took place prior to the statement he gave to them. [3] Although there was an implied charge of improper influence, this does not necessarily make Martin's prior consistent statement admissible. Section 90.801(2)(b), Florida Statutes (1979), only permits the admission of prior consistent statements made before the existence of the facts said to indicate the improper influence....
...ess said. My concern is that the en banc majority's "harmless error" holding gives precedential value to Judge Nesbitt's panel opinion, which concludes that it was error to admit Martin's statements to the police as prior consistent statements under Section 90.801(2)(b), Florida Statutes (1979)....
...NESBITT, Judge (dissenting): I respectfully dissent from the court's en banc resolution of the case for three reasons. First, Judge Pearson's concurrence improperly relinquishes to the jury a portion of the trial judge's time-honored role in determining admissibility. A prior consistent statement is admissible under section 90.801(2)(b), Florida Statutes (1979) only if made before the existence of a motive to fabricate or an improper influence....
...Quinto,
582 F.2d 224 (2d Cir.1978) (whether offered for rehabilitative purposes or as substantive evidence, a prior consistent statement is admissible only if made before the existence of a motive to fabricate or an improper influence). [2] The sidebar discussion over admissibility revolved around section
90.801(2)(b), Florida Statutes (1979) and, therefore, the issue was sufficiently preserved for our review....
CopyPublished | District Court of Appeal of Florida | 1998 Fla. App. LEXIS 552, 1998 WL 23226
...s fate. Thus, it was the appellee’s supervisor’s belief about the allegations of wrongdoing, not appellant’s conduct, that caused appellee’s termination of employment. Therefore, the report did not fall within the definition of hearsay under section 90.801(1), Florida Statutes (1993)....
CopyPublished | Florida 3rd District Court of Appeal
...demeanor; and (3) the declarant is not subject to cross-examination.” Banks
v. State,
790 So. 2d 1094, 1097 (Fla. 2001). “However, merely because a
statement is not admissible for one purpose does not mean that it is
inadmissible for another.” Id. Section
90.801(2)(c) provides a hearsay
exception for statements of identification: “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 . . . [o]ne of identification of a
person made after perceiving the person.” §
90.801(2)(c). “Florida courts
have limited the scope of section
90.801(2)(c) to exclude statements
containing descriptions or accusatory narratives.” Ellison v....
...4th DCA 2019) (quotation omitted); see also Puryear v.
State,
810 So. 2d 901, 903 (Fla. 2002) (stating “a description is not an
identification”); Smith v. State,
880 So. 2d 730, 740 (Fla. 2d DCA 2004)
(“[A]ccusatory statements in the form of a narrative are not admissible into
evidence pursuant to section
90.801(2)(c).”).
3
We agree with Garlobo that the trial court erroneously admitted the
challenged statements as they are clearly accusatory, narrative and
descriptive, going beyond that of identification....
CopyPublished | Florida 3rd District Court of Appeal | 13 Fla. L. Weekly 232, 1988 Fla. App. LEXIS 257, 1988 WL 4032
...The exception to the general rule is that a statement of a codefendant given pretrial, which is inconsistent with his trial testimony, may be admitted as substantive evidence where the statement was given under oath in a formal proceeding, subject to the penalty of perjury. § 90.801(2)(a), Fla.Stat....
CopyPublished | Florida 2nd District Court of Appeal | 2003 Fla. App. LEXIS 293, 2003 WL 131637
...Although McCune objected that this was inadmissible hearsay testimony, the trial court overruled the objection and admitted the testimony under the doctrine of completeness. 1 The trial court denied *866 McCune’s subsequent motion for a mistrial. The witness’ statement quoting her grandchild was hearsay. See § 90.801, Fla....
CopyPublished | District Court of Appeal of Florida | 1992 Fla. App. LEXIS 494, 1992 WL 5998
...The police report contained this witness’s statement that the witness overheard the appellant say that it was the appellant who was driving the boat at the time of the fatal accident. We write to address his contention that the report was inadmissible hearsay in violation of section 90.801(2)(b), Florida Statutes (1987)....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 231
...LaFleur’s out-of-court identification because she was essentially unavailable for cross-examination at trial due to her failing memory. There was no error in admitting the prior identification. Mrs. LaFleur’s out-of-court identification was admissible as a statement of identification pursuant to section 90.801(2)(c), Florida Statutes (2000). Section 90.801(2)(c) provides that an out-of-court statement of identification made after the declarant perceives the individual is not hearsay....
...when the identifying witness cannot make an in-court identification). A.E.B. argues that Mrs. LaFleur’s identification was inadmissible because she was essentially unavailable for cross-examination due to her memory loss. We disagree. In applying section 90.801(2)(c), Florida courts have held that the declarant need not make an in-court identification of the defendant, nor even confirm that the prior identification was made....
...State,
448 So.2d 613, 614 (Fla. 3d DCA 1984) (finding prior identification admissible even though declarant testified at trial that he possessed neither past nor present ability to identify defendant). Therefore, in order to admit prior identification testimony under section
90.801(2)(c), it is only necessary that the declarant testify at trial and be subject to cross-examination....
...whatever way, and to whatever extent, the defense might wish.” Id. at 559 ,
108 S.Ct. 838 (citing Kentucky v. Stincer,
482 U.S. 730, 739 ,
107 S.Ct. 2658 ,
96 L.Ed.2d 631 (1987)). In interpreting Federal Rule of Evidence 801(d)(1)(C), after which section
90.801 is patterned, the Owens court held that the declarant must merely be available for cross-examination concerning the statement and need not give consistent testimony at trial....
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 437, 2016 WL 145816
...The trial judge overruled the objection. On appeal, appellant
challenges this ruling.
Hearsay is defined as “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.” § 90.801(1)(c), Fla. Stat. (2014).
“A ‘declarant’ is a person who makes a statement.” § 90.801(1)(b).
The words on the sign amounted to a verbal act and not hearsay,
because they had “independent legal significance—the law attaches duties
and liabilities to their utterance.” A.J....
CopyPublished | Florida 1st District Court of Appeal
...degree murder and second degree attempted murder claiming
error in admitting certain statements. The testimony that one of
the victims identified Appellant as the shooter was properly
admitted as a statement of identification and was not hearsay. See
§ 90.801(2)(c), Fla. Stat. (2022). The statement that Appellant
intended to go to a cell phone store was not offered for truth of the
matter asserted, and so it was also not hearsay. See § 90.801(1)(b),
Fla....
CopyPublished | Florida 5th District Court of Appeal | 2002 Fla. App. LEXIS 1284, 2002 WL 191607
...enied having used an alias when he signed in as a visitor at a middle school. 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.” § 90.801(l)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2003 Fla. App. LEXIS 1132, 2003 WL 244976
...hat modify, supplement, contradict, rebut or make clearer the direct testimony. Nor was the testimony as to what the police had told this witness inadmissible as hearsay, because it was not offered to prove the truth of the statements by the police. § 90.801(l)(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2005 Fla. App. LEXIS 2061, 2005 WL 415939
...The injury report clearly quotes Briscoe as stating: “I was going down the steps and I slipped.” This report was prepared on the same day of the accident. It thus contradicted Celebrity’s accusation that Briscoe changed her testimony after consulting with her attorney, which is classic non-hearsay under section 90.801(l)(c), (2)(b), Florida Statutes (2002)....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 614130, 2013 Fla. App. LEXIS 2791
...on-hearsay or under the excited utterance exception to the hearsay rule. *533 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.” § 90.801(l)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2012 WL 516173, 2012 Fla. App. LEXIS 2403
...See Aime v. State,
4 So.3d 57, 60 (Fla. 4th DCA 2009) (citations omitted) ("While the law allows the admission of some prior inconsistent statements as substantive evidence, those statements cannot be the sole evidence of guilt and must comport with section
90.801(2)(a), Florida Statutes (2007).")....
CopyPublished | Florida 4th District Court of Appeal | 2012 WL 469816, 2012 Fla. App. LEXIS 2288
...State,
4 So.3d 642, 658 (Fla.2009)). As for the evidentiary issue, on appeal, the defendant argues the State should not have been permitted to play the girlfriend's taped statement to police as it was hearsay and not admissible as a prior consistent statement. See §
90.801(2)(b), Fla....
CopyPublished | Florida 2nd District Court of Appeal
...3d 641, 643 (Fla. 2d DCA
2017).
The trial court abused its discretion by admitting Cenlar's letter log under
the business records exception. Hearsay is an out-of-court statement "offered in
evidence to prove the truth of the matter asserted." § 90.801(c), Fla....
...The letter log contains two "levels" of hearsay: (1) the letter log
containing the notes and (2) the content of the notes. The log is itself hearsay because
it is an out-of-court statement being offered for the truth of the matter asserted, i.e., that
GTE mailed the default letter to the Borrowers. See § 90.801(1)(c)....
CopyPublished | Florida 4th District Court of Appeal
...sonment count, to
run concurrent with his 22-year sentence.
The trial court erred by excluding Kitchings’ statement to the
police given shortly after his arrest because it was admissible to
rebut an implied charge of recent fabrication under section
90.801(2)(b), Florida Statutes
After Kitchings was arrested, he spoke to the police during a recorded
interview that lasted over 2 ½ hours....
...Kitchings’ statement to the police into evidence. For this reason, the rule
of completeness did not compel the admission of the entire recorded
statement at trial.
Although not admissible under the rule of completeness, the statement
to the police was admissible under section 90.801(2)(b), Florida Statutes
as a prior consistent statement offered to rebut an express or implied
charge of recent fabrication. Section 90.801(2)(b) provides in pertinent
part:
(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:...
...fabrication . . . .
“Prior consistent statements are generally inadmissible to corroborate
or bolster a witness’s trial testimony, because such statements are usually
hearsay.” Peterson v. State,
874 So. 2d 14, 16 (Fla. 4th DCA 2004).
However, under section
90.801(2)(b), prior consistent statements are not
hearsay and can be used as substantive evidence if the declarant testifies
at trial, is subject to cross-examination regarding the prior statement, and
the statement is offered to rebut an express or implied charge of improper
influence, motive, or recent fabrication. §
90.801(2)(b), Fla....
...the witness’ trial testimony. See, e.g., Wise v. State,
546 So. 2d 1068 (Fla.
2d DCA 1989).
The prosecutor began her cross examination with a series of questions
that are a textbook example of an “implied charge . . . of recent fabrication”
within the meaning of section
90.801(2)(b) by suggesting that Kitchings
had manufactured his testimony after fully evaluating all of the state’s
evidence against him.
Q: You’ve had the opportunity to sit in the
courtroom the whole time, righ...
...The jury
listened to the entire recorded statement twice, once during the trial and
- 17 -
a second time during deliberations, with the aid of a transcript. Although
it is not clear from the record, it appears that the court allowed the
testimony either as substantive evidence under section 90.801(2)(b) or to
rehabilitate M.R....
...1st DCA
2001). Neither reason justified admission of the entire prior statement.
Nothing in the cross-examination of any witness amounted to an
“express or implied charge” against M.R. of “improper influence, motive, or
recent fabrication” under section
90.801(2)(b). “A witness’ credibility is
always an issue at trial, and a general attack on that credibility” does not
justify the admission of a prior consistent statement under section
90.801(2)(b). Jenkins v. State,
547 So. 2d 1017, 1021 (Fla. 1st DCA 1989).
The entire defense in this case was that M.R.’s fabrication was not recent,
that it began when she first contacted the 911 operator, so section
90.801(2)(b) would not apply to admit the prior statement as substantive
evidence. See Monday,
792 So. 2d at 1281; Bertram v. State,
637 So. 2d
258, 260 (Fla. 2d DCA 1994) (where court noted that section
90.801(2)(b)
does not apply where the defense is that charges “were fabricated, but not
that they were recently fabricated”); Hebel v....
...of it that were the subject of
impeachment.
This error was compounded because the trial court failed to give a
limiting instruction confining the jury’s consideration of the statement to
a single purpose. Unlike the admission of testimony under section
90.801(2)(b), when a prior consistent statement is admitted for
rehabilitation purposes under Monday, it is not admitted as substantive
evidence of the facts contained in the statement....
CopyPublished | Supreme Court of Florida
...because Cordarius and Parice provided in-court testimony and did
not testify inconsistently at trial. However, because Cordarius’ and
Parice’s out-of-court identifications were not hearsay and were
admissible as statements of identifications pursuant to section
90.801(2)(c), Florida Statutes (2017), we conclude that the trial
court did not err in admitting Detective Creelman’s testimony.
8....
...(quoting Cannon v. State,
180 So. 3d
1023, 1037 (Fla. 2015)). Hearsay is defined as “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.” §
90.801(1)(c), Fla. Stat. (2017). Section
90.801(2)(c)
provides an exception to the hearsay rule: “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 . . . [o]ne of identification of a person made after
perceiving the person.” §
90.801(2)(c), Fla....
...An “out-of-
court statement of identification is admissible in court to prove the
truth of the matter asserted, e.g., to prove that the person identified
was the person who committed the act.” Charles W. Ehrhardt,
Florida Evidence § 801.9, at 992-93 (2017 ed.). “Section
90.801(2)(c) recognizes that an identification made shortly after a
- 27 -
crime, accident, or event is more reliable in most situations than
identifications made at a later time.” Id. at 993. “In addition to the
testimony of the person who made the prior identification, section
90.801(2)(c) makes admissible the testimony of a witness who was
present at the time of the identification so long as the person
making the identification testifies during the trial and is subject to
cross-examination concerning the identification.” Id....
...Kyra.” Detective Creelman also testified that he interviewed Parice
on the night of the incident and that “Parice told [him] his brother,
Marlin Joseph,” was the shooter. The trial court allowed Detective
Creelman’s testimony regarding the out-of-court identifications
under section
90.801(2)(c)’s hearsay exception.
- 28 -
Our decision in Evans v. State,
838 So. 2d 1090 (Fla. 2002), is
instructive. In Evans, we concluded that the testimony of two
police officers that two eyewitnesses identified the defendant as the
person who shot the victim was admissible as a hearsay exception
under section
90.801(2)(c) where the two eyewitnesses testified at
trial and were subject to cross-examination concerning their
identification of the defendant as the shooter....
...identifying witness on direct examination if she had identified the
robber and given the police his name), quashed on other grounds,
116 So. 3d 270 (Fla. 2013).
Cordarius’ and Parice’s out-of-court identifications qualify as
an exception to hearsay under section
90.801(2)(c). Cordarius and
Parice were eyewitnesses to the crimes and specifically identified
Joseph as the shooter on the night of the shootings in their
statements to Detective Creelman. See Ibar v. State,
938 So. 2d
451, 460 (Fla. 2006) (stating that section
90.801(2)(c) applies to
statements of identification made by a witness to a crime); Charles
- 29 -
W. Ehrhardt, Florida Evidence § 801.9, at 994-95 (stating that
section
90.801(2)(c) “does not specify when or where the
identification must be made” but that the identification “should be
made near the time the declarant perceived the individual
identified”). Further, both Cordarius and Parice testified at trial
and were subject to cross-examination concerning their
identifications. See §
90.801(2)(c), Fla. Stat. Accordingly, because
Cordarius’ and Parice’s out-of-court identifications were not hearsay
and were admissible as statements of identifications pursuant to
section
90.801(2)(c), we deny relief on this claim.
D....
CopyPublished | Florida 2nd District Court of Appeal
...viewed for an abuse of
discretion, which discretion is limited by the rules of evidence. See, e.g.,
Padgett v. State,
73 So. 3d 902, 904 (Fla. 4th DCA 2011). The separate
question of whether a statement is hearsay is reviewed de novo. Id.
Under section
90.801(1)(c), Florida Statutes (2022), "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." It is inadmissible, except as provided by statute....
CopyPublished | Florida 5th District Court of Appeal | 2013 WL 6331606, 2013 Fla. App. LEXIS 19439
...ault without having pleaded it, a holding that would conflict with Biyant. . " '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.” § 90.801( 1 )(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1996 Fla. App. LEXIS 12772, 1996 WL 695285
...rsay objection “as to everything that’s in the article what [the defendant] is quoted as saying.” 3 The defendant asserts that the trial court erred in concluding that the newspaper article was itself admissible despite the hearsay rule. See §§
90.801,
90.802, Fla.Stat....
...The state responds that statements which the defendant gave to the newspaper reporter are not hearsay but rather are admissions of a party opponent and are admissible as an exception to the hearsay rule. The state further points out that under section
90.902(6), Florida Statutes, a newspaper is self-authenticating. Section
90.801(l)(c), Florida Statutes, defines “hearsay” as follows: “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....
CopyPublished | Florida 4th District Court of Appeal
...the defendant’s testimony and supported his self-defense claim.
A. Standard of Review and the Applicable Rules and Case Law
Our standard of review is abuse of discretion, limited by the rules of
evidence. Dunbar v. State,
230 So. 3d 8, 11 (Fla. 4th DCA 2017).
Section
90.801(1)(c), Florida Statutes (2017), defines “hearsay” as “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.”
Section 90.80...
CopyPublished | Florida 3rd District Court of Appeal | 1997 Fla. App. LEXIS 13363, 1997 WL 741525
...Regarding issue number one, the trial court properly admitted the prior consistent statement. In our view the defendant’s extensive cross-examination of the witness (the former co-defendant) regarding his plea agreement amounted to an “implied charge against him of improper influence, motive, or recent fabrication,” § 90.801(2)(b), Fla....
CopyPublished | Supreme Court of Florida
...to cross-examination
concerning that statement; and the statement is offered to ‘rebut an express or
935
implied charge of . . . improper influence, motive, or recent fabrication ) (quoting
Rodriguez v. Stdie,
609 So. 2d 493, 500 (Fla. 1992)); §
90.801(2)(b), Fla....
CopyPublished | Supreme Court of Florida
...o cross-examination
concerning that statement; and the statement is offered to ‘rebut an express or
implied charge of . . . improper influence, motive, or recent fabrication’ ”) (quoting
Rodriguez v. State,
609 So. 2d 493, 500 (Fla. 1992)); §
90.801(2)(b), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 19273
evidence to prove the truth of the matter asserted,” §
90.801(1), Fla. Stat. (2016), because not introduced
CopyPublished | Florida 5th District Court of Appeal | 2007 WL 4545893
...As the prosecutor argued at trial, and the trial court found, this testimony did not involve hearsay because the child's out-of-court statements were not being offered to prove the truth of the matters asserted in the child's responses to the questions posed. See § 90.801(1)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal
...ifically that Pugh's statement to Investigator Troop was inadmissible hearsay. " '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." § 90.801(1)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal
...ifically that Pugh's statement to Investigator Troop was inadmissible hearsay. " '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." § 90.801(1)(c), Fla....
CopyPublished | Florida 1st District Court of Appeal
...that Pugh’s statement to Investigator Troop was inadmissible
hearsay.
“‘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.” § 90.801(1)(c),
5
Fla....
CopyPublished | Supreme Court of Florida
...For instance, Detective Cayenne’s
testimony that Hitt suggested that getting Defendant’s DNA from
cheek swabs would be better than trying to obtain his DNA from the
straw hat he wore at work was not presented for the truth of the matter
asserted. § 90.801, Fla....
...s
by a declarant’). Likewise, Detective Cayenne testified that DNA expert Jason
Hitt suggested that it would be better to gather DNA from cheek swabs rather than
a straw hat. This statement was not offered for the truth of the matter asserted.
See § 90.801(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1982 Fla. App. LEXIS 21935
...Thus, the employer/carrier had possession of the report prior to the hearing, the report being dated June 18, 1981. . Dr. Robert was located in the Orlando area where the accident occurred. As mentioned, claimant was residing in southern Alabama at the time of the hearing. .§ 90.801(l)(c), Florida Statutes (1981)....
CopyPublished | Florida 2nd District Court of Appeal | 14 Fla. L. Weekly 2846, 1989 Fla. App. LEXIS 7044, 1989 WL 151438
...the jury verdicts. The appellant contends that the trial court erred by admitting the prior consistent statements and that he is entitled to receive a new trial. We disagree. It is not necessary for us to decide if the evidence was admissible under section 90.801(2)(b), Florida Statutes (1985)....
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 20183, 2014 WL 7009714
...trial and is subject to
cross-examination and when the statement is "offered to rebut an express or implied
-5-
charge against the declarant of improper influence, motive, or recent fabrication."
§ 90.801(2)(b), Fla....
CopyPublished | Florida 1st District Court of Appeal
...This appeal followed.
Appellant challenges the trial court’s excited utterance ruling
on appeal. “Hearsay” is defined as “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.” §
90.801(1)(c), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2015 Fla. App. LEXIS 12848, 2015 WL 5051187
...Gore’s autopsy report was hearsay. Under federal and Florida law, “hearsay” is defined as “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.” § 90.801(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1993 Fla. App. LEXIS 8772, 1993 WL 324026
...The third statement that T.S. challenged was Lively’s testimony that the victim admitted to her that she had sexual intercourse with T.S. The defense attorney lodged objections to all of these statements. We agree that the first two statements are hearsay. See § 90.801(1)(e), Fla. Stat. (1991). Even though Hill did testify at trial, the statements still are considered hearsay because they meet none of the requirements of section 90.801(2), Florida Statutes (1991)....
...Even though her statement to Lively was inconsistent with her trial testimony, it still is considered hearsay because the prior statement was not a sworn statement nor was it made during a trial, hearing, other proceeding, or in a deposition as required by section 90.801(2)(a)....
CopyPublished | Florida 4th District Court of Appeal
...4th DCA 2006)). “However, a trial court’s
discretion is limited by the rules of evidence.” Id.
No dispute exists that the Countrywide letter is an out-of-court
statement used to prove the truth of the matter asserted and, thus, is
hearsay as defined by section 90.801(1)(c), Florida Statutes (2018).
Hearsay is not admissible unless a statutory exception applies....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 12760
...See
1The father’s appellate counsel, who has a well-deserved reputation as an advocate
who is both zealous on behalf of his client and courteous to court and opposing
counsel, was not trial counsel.
2 The minor child has also been found dependent as to his mother.
3
§ 90.801(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2007 Fla. App. LEXIS 13013, 2007 WL 2376675
...At the close of the State’s case, defense counsel asked the court to reconsider its ruling that the detective’s identification testimony was admissible since the daughter did not testify and, therefore the state *886 ment of identification was inadmissible under section 90.801(2)(c), Florida Statutes (2004)....
CopyPublished | District Court of Appeal of Florida
admitted as a statement of identification. Section
90.801(2)(c), Florida Statutes, provides that “[a]
CopyPublished | Florida 5th District Court of Appeal
...The trial court
incorrectly concluded that counsel was not deficient because this testimony constituted
inadmissible hearsay. The testimony did not constitute hearsay because it would not
have been offered for the truth of the matter asserted—that Appellant actually physically
abused his stepson. See § 90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2013 WL 4081079, 2013 Fla. App. LEXIS 12649
...Stat. (2010). 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.” Dixon v. State,
107 So.3d 527, 533 (Fla. 4th DCA 2013) (citing §
90.801(l)(c), Fla. Stat. (2010)). While a declarant’s out-of-court statement will generally fall within this blanket prohibition, section
90.801(2)(c), Florida Statutes (2011), provides for an exclusion from hearsay for certain identification testimony, providing, in pertinent part: (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: [[Image here]] *125 (e) One of identification of a person made after perceiving the person. §
90.801(2)(c), Fla....
...Construing the plain language of the statute, Florida courts have consistently recognized that where a person making an out-of-court identification does not testify at trial, evidence of the identification will not be admissible. See Hayes v. State,
581 So.2d 121, 124 (Fla.1991) (“Section
90.801(2)(c) excludes from the definition of hearsay out-of-court statements of identification only when the declarant also testifies at trial.”) (citing State v....
CopyPublished | Florida 1st District Court of Appeal
...e the cross-
examination is directed at a key prosecution witness.” Mendez v.
State,
412 So. 2d 965, 966 (Fla. 2d DCA 1982) (emphasis supplied,
citations omitted).
C
Hearsay statute
Section
90.801, Florida Statutes, defines hearsay as “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.” §
90.801(1)(b), Fla....
CopyPublished | Florida 1st District Court of Appeal | 2010 Fla. App. LEXIS 11751, 2010 WL 3168122
...fying eyewitnesses. The on-scene statements the deputy relayed to the jury were essentially identical to the testimony given by the eyewitnesses. The trial court admitted the out-of-court statements into evidence as prior consistent statements under section 90.801(2)(b), Florida Statutes....
...Under that provision, an out-of-court statement is not hearsay if the declarant testifies at trial, the statement is consistent with the declarant's testimony, and the statement is "offered to rebut an express or implied charge . . . of improper influence, motive, or recent fabrication." § 90.801(2)(b), Fla. Stat. (2009). We agree the statements were not admissible as prior consistent statements because they were not offered for the purposes specified in the statute. But we find the statements were admissible under section 90.801(2)(c) which provides that an out-of-court statement is not hearsay if it is "[o]ne of identification of a person made after perceiving the person" and the declarant testifies and is subject to cross-examination. § 90.801(2)(c), Fla....
CopyPublished | Supreme Court of Florida
...prong of Jones, it is not likely to produce an acquittal upon retrial
and fails the second prong. As the State correctly notes, Baird’s
testimony regarding Price’s alleged prior statements constitute
hearsay and could only be admissible to impeach Price. See
§ 90.801, Fla....
CopyPublished | Florida 2nd District Court of Appeal
...-6-
Lee County—who was Mr. Khan's wife—was hearsay offered to buttress the State's
claim that Mr. Khan was the robber who had driven a vehicle of the same make and
model near the 7-Eleven. See § 90.801(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3825, 1991 WL 65961
...Publix contends that the testimony regarding what the woman said was impermissible hearsay. We agree. “ ‘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.” § 90.801(l)(c), Fla.Stat....
CopyPublished | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 3824, 2009 WL 1139238
...And then once he threw the money on the ground, the suspect placed the narcotics on top of the garbage can and told the confidential informant to take it off the garbage can. The informant’s out-of-court statement to the detective was hearsay, and there is no applicable exception. See § 90.801(1)(c), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2017 WL 1492938, 2017 Fla. App. LEXIS 5748
...police to be credible, that they “apparently believed his original statement,” and
8
that this constitutes substantive evidence that Castillo was in possession of a stick
during the attack.
Under section 90.801(2)(a), Florida Statutes (2015), prior inconsistent
statements can be admitted as substantive evidence “if the declarant testifies at the
trial or hearing and is subject to cross-examination concerning the statement and
the statement is . . . [i]nconsistent 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.” § 90.801(2)(a), Fla. Stat. (2015). The law is well-established
that “a statement given under oath during a police investigation is not a statement
given at an ‘other proceeding’ and consequently is not admissible as substantive
evidence under section 90.801(2)(a).” Pearce v....
CopyPublished | Florida 4th District Court of Appeal | 2007 Fla. App. LEXIS 6118, 2007 WL 1202244
...nt’s motive in robbing the victim and not the truth of the statement. “‘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.” § 90.801(l)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2002 WL 663473
...Butterworth, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee. *360 EN BANC ON MANDATE FROM THE SUPREME COURT PER CURIAM. In Puryear v. State,
810 So.2d 901 (Fla. 2002), the supreme court held that section
90.801(2), Florida Statutes (2000), did not authorize victim Amy Deese's out-of-court descriptions of her assailant to Danny Cratsenberg and Detective Rhonda Wardlaw....
CopyPublished | Florida 5th District Court of Appeal | 2016 Fla. App. LEXIS 6147, 2016 WL 1600421
...4th DCA 2006) (citing K.V.
v. State,
832 So. 2d 264, 265–66 (Fla. 4th DCA 2002)).
Hearsay is defined as “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.” §
90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 5285
...at the point when the command to stop is issued.” Id. (citations omitted). 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.” § 90.801(l)(c), Fla....
CopyPublished | Supreme Court of Florida
...I said yeah he probably did choke her.
Because how can a 140 pound woman choked a 290--
The trial court excluded the testimony.
- 14 -
Hearsay is defined as an out-of-court statement being offered into evidence
to prove the truth of the matter asserted. See § 90.801(1)(c), Fla....
CopyPublished | Florida 4th District Court of Appeal
...2d at 791.
The trial court also relied on the child’s pantomime of the alleged abuse.
But according to the mother, the child’s pantomime was done in response
to her direction to the child to show her what happened. As such, it was
hearsay. See § 90.801(1)(a), Fla....
CopyPublished | Florida 4th District Court of Appeal
...“Discretion is abused only where no
reasonable person would view the matter as the trial court did.” Id.
However, the question of whether evidence falls within the statutory
definition of hearsay is a question of law, subject to de novo review. K.V.
v. State,
832 So. 2d 264, 265–66 (Fla. 4th DCA 2002).
Section
90.801(1)(c), Florida Statutes (2018), defines hearsay as a
statement, other than one made by the declarant while testifying at trial,
offered into evidence to prove the truth of the matter asserted....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 5446, 2015 WL 1650438
..."When testimony concerning the estimated cost of repairs to damaged property
is 'offered in evidence to prove the truth of the matter asserted,' it is 'hearsay' unless
'made by the declarant while testifying at the trial or hearing.' " T.J.N. v. State,
977 So.
2d 770, 773 (Fla. 2d DCA 2008) (quoting §
90.801(1)(c), Fla....
CopyPublished | District Court of Appeal of Florida
quotation marks, and brackets omitted). Section
90.801(1)(c), Florida Statutes (2019), defines “hearsay”
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 1325870, 2017 Fla. App. LEXIS 4956
...restitution amount was the objected-to hearsay testimony of Mr. Strickland.
“‘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.” § 90.801(1)(c), Fla....
