Florida Child Hearsay Cases: Depositions Under Rules 3.220 and 3.190(j)

May 30, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, child hearsay statements about acts of physical and sexual abuse are sometimes considered admissible under Florida’s child hearsay exception (Fla. Stat. Section 90.803(23)) – even if that child has not been cross-examined by the defendant. Hearsay is an out of court statement offered in court for the purpose of proving the truth of the matter asserted in the statement.

State v. Contreras, 979 So.2d 896 (Fla. 2008) limits admissible child hearsay to non-testimonial statements in the absence of confrontation (cross-examination).Statements describing child abuse offered by the child for the purpose of dealing with an ongoing emergency (abuse) to sources such as family, friends, and doctors are considered nontestimonial. 

However, if the statements are given after the fact to sources such as law enforcement officers, child protection team (CPT) interviewers, or at a legal proceeding to develop a prosecution – these are considered testimonial. Testimonial statements are inadmissible at trial without the opportunity for a defendant to cross-examine the child witness under Crawford v. Washington, 541 U.S. 36 (2004).

In cases involving child hearsay, two types of pretrial witness depositions can occur: 3.190(j) depositions and 3.220(h) depositions. A deposition is a legal proceeding in which a witness provides sworn, out of court testimony in response to questioning from attorneys.

Contreras and its progeny have held that discovery depositions taken under Fla. Rule of Criminal Procedure 3.220(h) do not satisfy the defendant’s right to confront a witness against him under Crawford v. Washington, 541 U.S. 36 (2004) . Id. This is because FRCP 3.220(h) depositions:

• Typically exclude the defendant from being present
• Do not involve sufficient adversarial testing of evidence that will be used at trial

But Florida also allows depositions in criminal cases to be conducted under Fla. Rule of Criminal Procedure 3.190(j). This raises the question: can 3.190(j) depositions of a child victim be used at trial against a defendant as a substitute for testimony and cross-examination at trial? The answer is yes, but only under certain conditions.

FRCP 3.190(j) depositions are generally taken to perpetuate testimony – in other words, to preserve testimony if a witness is judicially declared unavailable for trial or is physically unavailable to appear for reasons such as:

• Impending death or serious illness
• Geographic inaccessibility
• In child abuse cases, substantial likelihood being declared unavailable because of mental or emotional harm that could result from testifying

Under FRCP 3.190(j), an attorney is permitted to take a pretrial deposition if they anticipate that the witness (such as a child victim) will be unable to testify at trial. In a child hearsay case, a defense attorney may elect to perform a 3.190(j) deposition rather than a typical 3.220 deposition for various reasons – most often, to preserve testimony for trial if a witness becomes unavailable. 

In the context of a child hearsay case, a 3.190(j) deposition may serve as a more viable alternative to a Rule 3.220 deposition in satisfying confrontation requirements. This is because a 3.190(j) deposition involves a more similar dynamic to a trial compared to 3.220 depositions, due to the fact that the intent is to use its contents at trial. 

For a 3.190(j) deposition to be performed, there must first be a motion made by the attorney intending to take the deposition filed with the court that identifies:

• The witness
• The witness’ expected unavailability at trial
• The relevance of the testimony
• Why other means of securing the testimony (such as live in-court testimony) are impracticable 

There must also be notice to opposing counsel, and an affirmative finding of the witness’ likely unavailability and the materiality and necessity of the testimony, as well as good cause for a 3.190(j) deposition in particular.

A 3.190(j) deposition must be conducted with the following conditions satisfied:

• The witness is under oath
• It is video-recorded or transcribed
• Clearly designated as perpetuation deposition (not discovery deposition)

The key as to whether a 3.190(j) deposition can serve as a substitute for in-person testimony and cross-examination is the defendant’s physical presence. If the defendant is present with the attorney during the deposition of the alleged child victim (or voluntarily waives their presence under Contreras) a 3.190(j) deposition can satisfy Crawford’s confrontation requirements – even if the child is later declared unavailable to testify at trial under Fla. Stat. Section 90.803(23).

Before the court grants a motion to take a 3.190(j) deposition in a case involving a child victim, it must be likely the child will be unavailable for testimony at trial. The child hearsay exception allows for the admission of a child victim’s hearsay statement if:

• That statement is found to be reliable and came through a trustworthy source
• It describes a qualifying act of abuse 
• There is a substantial likelihood that testifying will cause significant mental or emotional harm to the declarant child

Note: Though a 3.190(j) deposition can be moved for by either the State or the defense, it is most commonly moved for by the State. Blanton v. State, 978 So.2d 149 (Fla. 2008) 

If the State moves to take a 3.190(j) deposition of a child victim based on the child’s anticipated unavailability at trial and the motion is granted, the defendant must be present when the deposition occurs for Crawford to be satisfied. The presence of a defendant’s attorney alone during a 3.190(j) deposition – because it will potentially be admitted as a substitute to trial testimony – is insufficient for the alleged victim’s testimony to be admissible. Id.

In sum, a Rule 3.220(h) discovery deposition of a child victim is not admissible at trial as substantive evidence, and cannot be used to circumvent the Sixth Amendment’s Confrontation Clause. As a defendant is not typically present during a 3.220(h) deposition and the deposition is taken for discovery purposes (fact-finding) – this cannot be substituted for trial testimony even if a child is found to be unavailable.

By contrast, a Rule 3.190(j) deposition can serve as a substitute to trial testimony by an alleged child victim, but only under certain conditions. The State or the defense must move for such a deposition of the child victim, notice the other party, and have their motion granted by the trial judge before a Rule 3.190(j) deposition can occur. 

Because a Rule 3.190(j) deposition is taken with the intent of preserving the testimony of a witness who will likely be unavailable to testify at trial, there is the potential for this deposition to serve as a legal substitute to cross-examination at trial. 

However, a defendant must be physically present and able to participate in the Rule 3.190(j) deposition if the court permits one to be held – or knowingly, intelligently, and voluntarily waive their physical presence under Contreras. If a 3.190(j) deposition does not meet these stringent requirements, an alleged child victim’s deposition testimony cannot be introduced at trial under Fla. Stat. Section 90.803(23).

If someone is arrested and formally charged in Florida in a case involving child hearsay, it is critical to find experienced and trusted legal representation as soon as possible. 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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