Child hearsay – Can a child’s statement be used to convict even when they don’t testify at trial?

By February 17, 2020Blog

Child hearsay – Can a child’s statement be used to convict even when they don’t testify at trial?  There are few things our society values more than the belief that citizens should be able to face their accuser and also that children should not be unnecessarily traumatized.  On one hand, the child witness has potentially been victimized.  On the other hand, child witnesses often have difficulty with comprehension and can be easily influenced so their statements should be tested in court and evaluated by a jury.  When the accusor is a child, how do the Florida courts balance these concerns?

STEP 1:  The first step is to evaluate whether the child hearsay statement meets the statutory criteria to qualify as an exception to hearsay under §90.803(23):

  • Unavailability is not required. Assuming other criteria are met, the child hearsay statement is allowed even if the child is available and competent to testify.
  • Child must be 16 or younger. This refers to actual or developmental age.
  • The statement is only allowed in cases describing child abuse, neglect or sexual act done against or in the presence of the child.
  • There must be sufficient safeguards indicating reliability:  Time, content and circumstances; Mental and physical maturity of child; Nature and duration of abuse; Relationship with alleged abuser; Reliability of the assertion; Reliability of child witness; Any other appropriate factors.

STEP 2:  The probative value must outweigh the inherent prejudice before the child hearsay statement is admissible under §90.403.  On one hand, a child’s statement may carry an increased probative value if the child is the only one who can speak to what happened.  However, child hearsay carries an increased risk of prejudice due to the serious nature of the allegations.  If the child is the only one who speaks to the abuse, special care should be used to make sure the statement is not repetitive or suggestive of other uncharged misconduct.

STEP 3:  In criminal cases only, the child hearsay statement is not admissible if it violates the defendant’s right to confront and test the accusation. In 2008, the Florida Supreme Court held that child hearsay statements are not admissible when:  1) The child is available, 2) The statement is testimonial and 3) There has been no meaningful opportunity for significant cross-examination.  Contreras v. State , 979 So. 2d 896 (Fla. 2008).  The Contreras court further clarified statements to parents, friends, or medical providers are often not testimonial unless at the direction of law enforcement.  Contreras also held that a discovery deposition does not amount to a meaningful opportunity to cross-examine under Crawford because they are for the purpose of discovery and cannot be admitted as substantive evidence, only impeachment.  However, cross-examination during an adversarial preliminary hearing or a bond hearing may satisfy Crawford and waive a confrontation objection.

Though presented here as sequential steps they are not sequential in application. The considerations are fluid and should be prioritized on a case-by-case basis. Are the statements testimonial?  If not, a confrontation analysis is irrelevant.  Is the child testifying?  Again, there is no confrontation issue.  However, even if the child is testifying, any out-of-court statement must meet the statutory requirements.  It is up to courts and counsel to insure that the child is not unnecessarily traumatized and that such evidence can only be used against an accused if it is reliable, probative and, in criminal cases, does not violate the right to confrontation.  While this article may be a helpful starting point, all attorneys are highly encouraged to conduct their own research as this area of law is multifaceted and has both Federal and State applications.

Since 1999, I have handled cases involving child witnesses.  An experienced attorney will know that a zealous representation includes pre-trial investigation, motions and effective, but measured, testing of the child’s statement to make sure he or she grasps concepts of reality, logic and truthfulness and has not been influenced by divorce, child-custody disputes or a suggestive interviewer.  Attorney Jessica J. Travis, The Travis Law Firm, PLLC, 321-728-7280,, 1370 Bedford Drive, Suite 104, Melbourne, FL 32940