FLORIDA STATUTE SECTION 90.803 FORMER TESTIMONY HEARSAY EXCEPTION Take notice, the former testimony exception to the hearsay rule, Florida Statute Section 90.803 (22), has been changed. This change comes in the form of a legislative amendment which now allows prior sworn testimony to be introduced even if the party that it is being used against was not present when the prior testimony was taken. This change is both controversial and dramatic. Governor Lawton Chiles vetoed the hearsay amendment, only to be overridden by the legislature. The Florida Supreme Court held that the legislature’s override of the Governor’s veto was constitutional and valid in Chiles v. Webster, 714 So. 2d 453 (Fla. 1998). As a result, this hearsay exception became law on July 1, 1998. Under the amended version of the exception on former testimony, prior testimony can be read at trial even if the testimony was given in a completely unrelated case, where party’s counsel had no opportunity to cross-examine or otherwise develop the declarant’s testimony, and even if counsel had no notice of the testimony. This is a significant departure from the pre-amendment, former testimony exception. Before the amendment, the party seeking to admit the former testimony was required to establish that the party against whom the testimony was offered had been afforded an opportunity to cross-examine and had a similar motive to develop the testimony. Thus, under the prior version of the rule, a deposition was not admissible against a party unless that party was present and had a similar interest in the case. For example, in Dinter v. Brewer, 420 So. 2d 932, 935 (Fla. 3d DCA 1982), the court held that a deposition from a prior proceeding involving a woman’s husband was not admissible against that woman where she was not a party in the prior proceeding, was not present or represented at the prior proceeding, and was not provided notice. Now, it will no longer matter whether the party who examined or cross-examined the declarant in the former proceeding had a similar motive to develop the declarant’s testimony as the person against whom the testimony is being offered. Several questions remain as to the validity of the amendment. It is unresolved whether the amendment violates the exclusive rule-making authority of the Florida Supreme Court, mandated under Article 5, Section 2 of the Florida Constitution. Further, the amendment may violate the due process clause of the Florida Constitution because it denies the party that the testimony is being offered against the right of notice and opportunity to cross examine. see generally Finkley v. John Raffa Lathing, 120 So.2d 9 (Fla. 1960)(privilege of viewing witnesses and cross-examining them under oath is an aspect of due process).