So you're faced with child hearsay: what's in, what's not.

• Author: Tragos, George E.

Nothing is more difficult than defending a client who is accused of a crime that requires no substantive evidence for conviction. An allegation is made by a four-year-old child to her mother regarding inappropriate contact with her father: "I touched Daddy's pee pee and orange juice came out." When her mother asks the child if she is serious, the child responds that she was attempting to make her mommy laugh. Subsequently, the child was examined for evidence of sexual abuse, but medical results indicated that there were no signs of trauma or any indications consistent with sexual abuse. Furthermore, the child was interviewed by law enforcement officers, social workers, and psychologists and denied any inappropriate conduct by the father until a certain lone detective claimed to have interviewed her and obtained an unrecorded admission. The child was later deposed and denied any abuse. Finally, the child was questioned during two separate court hearings and again denied any abuse, all along maintaining her original recitation that she had made the statement to her mother in order to make her laugh.

What began two years ago as a capital sexual battery case with all fingers pointing to the father as the perpetrator has transformed into a case where the alleged victim will testify on behalf of the defense.

As most criminal trial practitioners know, the rules of evidence (or more specifically the voluminous exceptions to those rules) are not always clearly defined. One such example is [section] 90.803 (23) statements of child victims, more affectionately known as the child hearsay rule. This article is intended to provide a basic understanding of what's in, and what's not, based on Florida case law as well as some pointers which are learned through experience to aid practitioners who find themselves combating cases relying on child hearsay.

The hearsay exception; statements of child victims is codified in F.S. [section] 90.803(23) and states:

(a) Unless the source of information or the method of circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with the physical, mental, emotional or developmental age 11 or less describing any act of child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making of the determination, the court 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; and

2. the child either:

1. Testifies; or

2. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a 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, in addition to findings pursuant to [section] 90.803 (1).

(b.) In a criminal action, the defendant shall be notified no later than ten days before trial a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the contents of the child's statement, the time in which the statement was made, the circumstances surrounding the statement which indicates its reliability, and such other particulars as necessary to provide full disclosure of the statement.

(c.) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.

The requirements and limitations for the use of the...