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Statements From a Deceased Witness in Florida
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Statements From a Deceased Witness in Florida

July 13, 2017 Professional Services Industry Legal Blog

Reading Time: 4 minutes

Sometimes during the course of a disputed matter, you find out that one of the witnesses to the action is deceased.  This presents a problem for obvious reasons since that witness was not deposed in the case yet.  This situation often arose in a business litigation matter concerning the value of or break up of a business when one of the members or partners had passed away. It used to be that under Florida Statute § 90.602, (which was repealed in 2005 by the Florida Legislature) an interested party in the estate was barred from offering testimony regarding oral communications with a person who was deceased unless there was a waiver in place.  The Statute was a shield for the deceased party in order to protect the estate from perjury from an expectancy interest from an interested party.  Florida Statute § 90.602 only applied when a witness was testifying for their own sole interest so that it would have an adverse effect on the interest of the decedent and their estate.  The court in Viscito v. Fred S. Carbon Co. provided an analysis of the statute and offered an example of the type of testimony that will not be admitted into evidence:

Contrary to the lower court’s holding, this statute was not designed to preclude testimony regarding a standard corporate arrangement, upon the death of a corporate agent. See Moneyhun v. Vital Industries, Inc., 611 So.2d 1316 (Fla. 1st DCA 1993) (Florida’s Dead Person Statute was inapplicable as the action was against the corporate entity rather than against the individual estate of the owner and the sole stockholder of the corporation). Similarly, at bar, since the action was only against the corporate entity and not against the estate of Fred Carbon, there is no basis to extend the Dead Person Statute to this action against a corporation.

Viscito v. Fred S. Carbon Co., Inc., 636 So. 2d 194, 195 (Fla. 4th DCA 1994).

Replacement of Florida Statute § 90.602 with Florida Statute § 90.804(2)(e)

The testimony of an interested party regarding oral communication with a person who is deceased is no longer inadmissible solely on the basis of the statute. The hearsay rule and other rules of disqualification are applicable to the testimony. After Florida Statute § 90.602 statute was repealed, a hearsay exception section was since added.  Pursuant to Florida Statute § 90.804(2)(e), if a declarant is incapable of testifying at a hearing due to death and the statement made by the declarant is analogous to a previously admitted statement, then the statement will be admitted into evidence.  The scope of the statute is narrow and the statute provides certain elements needed to satisfy this hearsay exception.  The application of Florida Statute § 90.804(2)(e) is limited and it states, “In an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence.” Fla. Stat. § 90.804(2)(e).  Therefore, the statute lays out a specific application where an action is brought against the personal representative for which the testimony of a deceased declarant will be admitted so long as the statute is satisfied. The statute also provides the language designated “same subject matter”, meaning that if a declarant’s statement is brought to the fact finder and it does not offer relevant subject matter, then the evidence will be excluded. Otherwise, it appears that the statements of a deceased witness offered by a party will not be admissible, if it relates to something other than the subject matter of the case.

The use of Florida Statute § 90.804(2)(e) will most likely come into play in probate and trust litigation cases.  A typical example of the application of the statute can be found where a party offers a trust or will into evidence; the opposing can bring in hearsay of a dead declarant regarding the trust, or will.  There has been little to no case law specifically analyzing Florida Statute § 90.804(2)(e), due to its limited applicability and recent addition to the hearsay exceptions.

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