What is Child Hearsay - and How Might it Affect My Case?

Generally, hearsay – an out of court statement that one party attempts to introduce into evidence to prove the truth of the substance of that statement – is not admissible in court (See Florida State Statute s. 90.801).  In simpler terms, people cannot come into court and say “So-and-So told me_____________.”  Florida has created an exception to this general rule- an exception frequently used in prosecutions of sex crimes involving child victims.  Specifically, this exception allows a witness to testify in court as to what a child victim told them about the charged incident.  These witnesses may be parents, family members, detectives, or members of the Department of Children and Families, for example.

This exception is found in Fla. Stat. 90.803(23).  Here is how this typically plays out: The State is required to file a written notice at least 10 days prior to trial.  In this notice, they will identify the specific statements they intend to offer as evidence, when the statement was made, and the circumstances surrounding the statement which indicate its reliability.  The Court then holds a hearing to evaluate the statements.  During this hearing, the Court will determine whether the time, content, and circumstances of the statements provide sufficient "safeguards of reliability".  Basically, can we trust these statements? 

To make this determination, courts may consider:

      the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate.  

Interestingly, although there is case law indicating it's preferable for the child to testify at the hearing, it is not required and prosecutors often do not call the child as a witness at the hearing.  Unfortunately, this prohibits defense attorneys from cross-examining the child in front of the judge regarding possible issues of credibility, motive, and bias.

Finally, it is important to note that no corroboration of the crime is required at the hearing if the child victim is also going to testify at trial.  If, however, the child is found to be “unavailable” – generally meaning finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm – the State must present some other corroborative evidence of the abuse or offense.

While child hearsay motions tend to be difficult for the defense, they are not impossible to combat, provided the right approach is taken.  First, it is important to retain an experienced defense attorney who has handled these hearings, as they are unique and specialized. Additionally, it’s important that the attorney is well-versed in applicable case law, knows the proper procedures, and can identify the factors that tend to diminish reliability of the child’s statements.  Second, defending against child hearsay requires an in-depth review of discovery, specifically identifying and comparing any and all statements previously made by the child or the witnesses to whom the statements were made.  When applicable, it is extremely effective to show the judge that multiple statements have been made and at least one or more tend to contradict one another.  

Finally, as we all know, children are extraordinarily impressionable.  It is imperative that the defense attorney conducts a thorough investigation, seeking any evidence of bias, influence, or motive to fabricate allegations.

Lori WurtzelWurtzel Law