Are Texts Admissible as Child Hearsay in Florida?

May 21, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Given the widespread use of electronic devices for communication, an increasingly common question is if text messages from a child qualify as child hearsay under Fla. Stat. Section 90.803(23). The answer to this question is: yes, if certain conditions are met. 

This article will discuss the admissibility of text messages or similar online communications as child hearsay, and provide important background on Florida’s child hearsay exception.

What is Hearsay?

In Florida, hearsay is defined as an out-of-court statement offered in court for the truth of the matter asserted in that statement. Hearsay is generally inadmissible in court, unless it falls under one of Florida’s “hearsay exceptions,” outlined in Fla. Stat. Sections 90.803 and 90.804.

Exceptions to Admission of Child Hearsay

Under Fla. Stat. Section 90.803(23), an exception exists for the admission of child hearsay. This exception allows for the in-court use of a hearsay statement with sufficient indicia of reliability that was made by a child victim:

• With a physical, mental, emotional, or developmental age of 17 or less, and which;
• Describes 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

Though the law is evolving on this point, child hearsay includes text messages. Under existing Florida case law, text messages from a child can be considered under the same criteria as other forms of child hearsay statements, provided they meet the reliability requirements and other statutory conditions. Aboagye v. State, 387 So.3d 397 (Fla. 1st DCA 2024) 

When is Child Hearsay Admissible?

For a child hearsay statement to be admissible – including a text message or other digital communication describing an illegal act of child abuse or neglect – it must meet two reliability requirements. First, the source of the information through which the statement was reported must indicate the statement’s trustworthiness. Moreover, the time, content, and circumstances of the child hearsay statement must reflect that the statement provides sufficient safeguards of reliability. Garcia v. State, 659 So.2d 388 (Fla 2d DCA 1995).

To determine the reliability of a child hearsay statement for the purpose of admitting this in court, the trial judge must hold a hearing outside the presence of the jury. If the judge finds the following at that hearing:

• The statement and the source through which it was reported is sufficiently trustworthy
• The time, content and circumstances of the statement provide sufficient safeguards of its reliability
• The statement describes an act of physical or sexual child abuse, contact, or child neglect that was allegedly performed on or done in the presence of the declaring child

That statement is considered admissible under Fla. Stat. Section 90.803(23). Cabrera v. State, 206 So.3d 768 (Fla. 1st DCA 2016).

Florida’s courts consider various factors in determining whether child hearsay statements, including texts or other online communications from the declarant child, are admissible under the child hearsay exception. These factors include:

• Mental and physical age and maturity of the declaring 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
• Spontaneity of the statement
• Whether the statement was made at the first available opportunity following the alleged incident
• Whether the statement was elicited in response to questions from adults
• The mental state of the child when the abuse was reported
• Whether the statement consisted of a child-like description of the act
• Whether the child used terminology unexpected of a child of similar age
• The motive or lack thereof to fabricate the statement
• The ability of the child to distinguish between reality and fantasy
• The vagueness of the accusations, the possibility of any improper influence on the child by participants involved in a domestic dispute
• Contradictions in the accusation

Courts can consider some or all of these factors – and must draw their conclusion regarding the admissibility of the statement based on the totality of the circumstances. Fitzsimmons v. State, 309 So.3d 261 (Fla. 1st DCA 2020).

Before allowing child hearsay to be entered into the record at trial under Fla. Stat. Section 90.803(23) , judges must make a specific, documented finding of fact that the statements are permissible at trial. 

A mere conclusion that a child’s statements are reliable or a mere restatement of the statute in a boilerplate fashion is insufficient. The trial judge must detail the reasons why the statement was deemed reliable and why any reasons indicating a lack of reliability were discounted. Roberts v. State, 310 So.3d 438 (Fla 3d. DCA 2018).

If the child is determined to be unavailable as a witness (unable to appear or testify in court), there must be other corroborative evidence of the abuse or offense for the hearsay statement to be admissible. Unavailability includes 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 under Fla. Stat. Section 90.803(23).

In sum, Florida’s child hearsay exception under Fla. Stat. Section 90.803(23) allows for the admission of digital communications such as text messages that describe unlawful acts of child sexual abuse, physical abuse, or neglect. 

These messages are evaluated using the same criteria as other child hearsay statements, and must offer sufficient evidence of their reliability. A judge must make a specific finding of fact in the record as to why the hearsay is admissible before it can be introduced at trial.

If someone is concerned about a case involving the potential admission of child hearsay, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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