Can Prior Inconsistent Child Hearsay Alone Convict in FL?

June 18, 2025 Don Pumphrey, Jr. Criminal Defense, Sex Crimes Social Share

In some cases, a child may testify at a criminal trial regarding an abuse allegation. However, the child may change the content of – or entirely repudiate – their hearsay (out of court) statements alleging the physical or sexual child abuse that led to the arrest of a defendant. 

If child hearsay statements alleging the charged crimes are introduced in court, can someone be convicted based solely on the basis of that hearsay – even if there is no other evidence offered of the defendant’s guilt and the child’s in-court testimony openly conflicts with the hearsay? Florida’s courts say no. 

This article will discuss the important legal issue of prior inconsistent child hearsay, its admissibility, and the reasons why this cannot alone support a conviction for child physical or sexual abuse charges.

In Florida, child hearsay alleging acts of physical or sexual abuse which occurred in the child’s presence or of which the child was a victim is admissible under certain circumstances (Fla. Stat. Section 90.803(23)). These circumstances include:

• The declarant child has a physical, mental, emotional or developmental age of 17 or less
• The statement is not considered untrustworthy
• The statement describes an act of physical or sexual abuse of which the child was a victim, or the act occurred in their presence
• There is a substantial likelihood of severe mental or emotional harm to the child if they are forced to provide in-court testimony

Hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement. It is generally inadmissible in Florida courts, but various exceptions exist allowing for the use of hearsay in criminal proceedings against a defendant. Child hearsay is one of these exceptions – regulated by Fla. Stat. Section 90.803(23).

For child hearsay to be considered admissible in Florida’s courts, the statement must qualify. The age of the child and described act must fall within statutory guidelines, and the statement must be found to be not untrustworthy. 

In determining whether a child hearsay statement is sufficiently reliable to admit, Florida’s courts may consider any of the following factors under Fincher v. State, 137 So.3d 437 (Fla. 4th DCA 2014) and State v. Townsend, 635 So.2d 949 (Fla. 1994):

• Whether the statement was made spontaneously (without coaching or prodding)
• Whether it was made at the earliest available opportunity following the alleged abuse
• Whether it was elicited in response to questioning from adults – particularly adults that have a bias against the defendant 
• Motive or lack thereof to fabricate the statement/abuse allegation
• Vagueness or specificity of the accusations 
• The possibility of any improper influence on the child by participants involved in a domestic dispute
• Contradictions in the accusation
• The child’s ability to distinguish between reality and fantasy
• Whether the child’s statement used terminology unexpected for their age

There are two types of child hearsay statements that may be admitted under 90.803(23): testimonial and nontestimonial. Child hearsay is considered testimonial when the purpose of the statement was to document past events for the primary purpose of laying the groundwork for a future prosecution. 

Examples of testimonial hearsay statements include:

• Statements during a child protection team (CPT) interview 
• Statements made to law enforcement as part of an investigation of the defendant prior to (or after) the defendant’s arrest for physical or sexual child abuse 
• Certain statements made to medical professionals regarding the abuse (if not for the purpose of medical diagnosis or treatment under 90.803(4))

By contrast, nontestimonial child hearsay statements are those made which may describe an act of abuse to respond to an ongoing emergency (such as an initial disclosure), not primarily to lay the groundwork for a future prosecution. These may include:

• Statements to a parent or relative disclosing the abuse
• Initial 911 call disclosing the abuse 
• Statements to teachers or friends disclosing the abuse

Note: Under State v. Contreras, 979 So.2d 896 (Fla. 2008), if a government official (such as a police officer) overhears an abuse disclosure in what otherwise would be a nontestimonial hearsay context, this is still considered nontestimonial hearsay.

The distinction between testimonial and nontestimonial hearsay is significant – because testimonial hearsay is harder to admit than nontestimonial hearsay at trial using 90.803(23). Under Crawford v. Washington, 541 U.S. 36 (2004), a defendant (the accused) must have the chance to cross-examine the child at trial (or in a 3.190(j) deposition) before testimonial hearsay statements can be admitted.

However, this is not the case with nontestimonial hearsay. If the prosecution intends to offer nontestimonial child hearsay in court that meets the criteria outlined by 90.803(23), it must satisfy only two conditions:

• The statement must have sufficient indicia of reliability (not untrustworthy)
• Like testimonial hearsay, the nontestimonial hearsay statement’s probative value must not be substantially outweighed by the danger of unfair prejudice, confusion, misleading of the jury, etc. (90.403)

In some cases, child hearsay will be admitted before or after a child testifies regarding the alleged abuse at trial and faces cross-examination by a defendant. While on the stand, a child may fundamentally change or even completely repudiate the content of their hearsay statement in response to cross-examination. 

If this occurs, and no additional evidence is provided that the charged offenses were committed (except for the child’s testimony), Florida’s courts hold that a defendant cannot be convicted as a matter of law of the charged offenses. This is because child hearsay that is inconsistent with the child’s testimony is not considered substantive evidence.

The Florida Supreme Court explicitly recognized this principle in Baugh v. State. Baugh v. State, 961 So. 2d 198 (Fla. 2007). Baugh was arrested after the daughter of his girlfriend alleged he had sexually battered and molested her. 

The State introduced the child’s original (hearsay) statements to her mother as substantive evidence under 90.803(23). However, the child testified at trial that the claim was a “fib” to get him Baugh in a “little” trouble, because sometimes “he made her mad.”

The Baugh court noted that since no physical or eyewitness evidence of the abuse existed other than the initial child hearsay statements – which were repudiated fully by the child in court – Baugh’s conviction for the abuse could not be supported as a matter of law. Id. 

The Florida Supreme Court reached a similar conclusion in Beber v. State. Beber was alleged to have committed a sexual battery on a child. The child told the child protection team (CPT) forensic interviewers that a sexual battery occurred. But at trial, the child testified that even though inappropriate touching happened, there was not a sexual battery.

The Beber court reversed Beber’s conviction for sexual battery. It found that although the child victim’s trial testimony still alleged unlawful sexual conduct, the child specifically repudiated his testimonial hearsay statements that sexual battery had occurred (oral penetration). Thus, the conviction could not survive as a matter of law. Beber v. State, 887 So. 2d 1248 (Fla. 2004)

Florida’s District Courts of Appeal have also addressed this issue. In 2022, Florida’s 1st DCA held in Stevens v. State that despite a young child victim’s in-court testimony being somewhat inconsistent with testimonial hearsay statements, Stevens’ conviction of child sexual abuse could still stand. Though there was no corroborative evidence, the court ruled:

“Despite this inconsistency, a jury could reasonably conclude, based on the limitations of the child victim’s ability to recall events that occurred when she was only three years old, that she may not have remembered all the details of the abuse.”

The court noted that since the child was:

• Only five years old
• Extremely distressed at trial
• Had trouble answering straightforward questions due to the testimony
• Had to take breaks just to compose herself

The child could not be expected to perfectly align her in-court testimony with the content of her out of court statements. Simply because the statements may have been slightly inconsistent, the Stevens court reasoned, does not mean the child intended to repudiate her out of court testimony. Stevens v. State, 352 So. 3d 413 (Fla. 1st DCA 2022)

In sum, Florida’s courts prevent prior inconsistent child hearsay statements from being the sole basis for conviction of an alleged sexual offense. If a child’s hearsay statements are introduced as evidence and upon testifying, the child:

• Fully repudiates their out of court statements, or…
• Significantly alters key elements of the allegation that served as the basis of the charge, and…
• There is no corroboration other than the child’s allegation of the events

A defendant may not be convicted as a matter of law for the conduct alleged in the child hearsay statements (Beber and Baugh).

However, the question of what counts as “repudiation” sufficient to bar a conviction (in the absence of additional evidence) is still an open one. Does a child altering their account in a manner that changes the fundamental nature of their allegation count as repudiation, even if they do not say they were “fibbing”? Must the child openly disavow their previous allegations? These questions are still being answered by Florida courts.

The admission of child hearsay can change the outcome of a case, so it is critical to find experienced and trusted legal representation as soon as possible if someone is charged with an offense involving a child victim. This decision could make the difference in whether or not someone faces 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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