Is Prior Consistent Child Hearsay Admissible in Florida?

June 17, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, prior consistent hearsay statements are generally inadmissible on the grounds that these may bolster a witness’s testimony. If someone testifies to a particular set of events and previously recounted these events in a similar fashion to law enforcement or another source, these out of court statements generally cannot be used against a defendant.

However, there are exceptions to this. Two key Florida statutes, 90.803(23) and 90.801(2)(b), provide a framework for whether prior consistent hearsay statements from a child can be used in court against someone accused of physical or sexual abuse of a child. This article will explore if and when prior consistent child hearsay is admissible in Florida courts.

Hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement. Under Florida’s child hearsay exception (Fla. Stat. Section 90.803(23)), hearsay statements made by a child (with an emotional, physical, mental or developmental age of 17 or younger) that describe the following are admissible at trial against the accused:

• Acts of physical or sexual abuse of which they were the victim
• Acts of physical or sexual abuse that occurred in their presence

However, before such hearsay statements are admitted, they must comply with a few conditions. To be admissible under 90.803(23), child hearsay must be determined to be all of the following:

• Reliable and trustworthy
• Describing a qualifying act of abuse
• A substantial likelihood of significant emotional or mental harm to the child from testifying (if the child is to be declared unavailable)

There are two types of hearsay statements – testimonial and nontestimonial. Testimonial child hearsay involves statements made out of court for the primary intent of developing a record for a potential future prosecution and assisting the government in fact-finding for this purpose. Examples of when a child’s out-of-court abuse allegation is testimonial include:

• The child speaks to a child protection team (CPT) forensic interviewer regarding the abuse
• The child speaks to law enforcement immediately preceding or after the alleged abuser’s arrest regarding the abuse

Under the U.S. Supreme Court’s ruling in Crawford v. Washington and the Florida Supreme Court’s ruling in State v. Contreras, testimonial child hearsay is considered inadmissible unless the declarant child testifies and has the opportunity to be cross-examined by the defendant. Crawford v. Washington, 541 U.S. 36 (2004); State v. Contreras, 979 So.2d 896 (Fla. 2008).

The second type of hearsay in the context of child abuse disclosures is nontestimonial hearsay. This is defined as an out of court statement regarding the abuse that is made for the primary purpose of responding to an ongoing emergency. Nontestimonial hearsay may include:

• Statements to teachers
• Statements to siblings or relatives
• Statements to doctors, if for the purpose of treatment
• 911 calls reporting the abuse 

Note: If a law enforcement officer incidentally overhears a disclosure, the disclosure does not automatically become testimonial if it otherwise would have been considered nontestimonial (Contreras).

But this raises a key question. If a child testifies in court and is subject to cross-examination, do the child’s prior consistent hearsay statements (for example, during a CPT interview or to law enforcement) regarding the abuse automatically become admissible? 

Florida’s courts have struggled with this question for decades. On one hand, prior consistent hearsay statements are generally held inadmissible (especially if testimonial) unless certain conditions are satisfied. These include:

• The declarant testifies at trial and is subject to cross examination, and 
• The statement is admitted to rebut a charge of improper influence, motive, or recent fabrication

However, Fla. Stat. Section 90.803(23) is extremely broad – and seems to indicate that so long as a child hearsay statement covered by the statute is “not untrustworthy,” it can be admitted at trial. This seems to be the case even if it is a prior consistent statement that would typically be subject to exclusion under 90.801(2)(b, such as: 

• Tape of a forensic interview where the child makes substantively similar allegations to what was testified to
• Tape of a law enforcement interview with a child (or law enforcement testifying to what the child told them)

Two prominent cases deal with this issue: Pardo and Bullington. Pardo v. State, 596 So. 2d 665 (Fla. 1992); Bullington v. State, 311 So. 3d 102 (Fla. 2d DCA 2020). The Florida Supreme Court held in Pardo that under some circumstances, child hearsay statements that would generally be excluded as prior consistent statements may be admitted due to the breadth of 90.803(23).

However, the Pardo court cautioned that any potential admission of prior consistent testimonial or nontestimonial child hearsay under 90.803(23) must be subject to a 90.403 analysis. Fla. Stat. Section 90.403 specifies:  

“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”

If prior consistent child hearsay statements are considered needlessly cumulative, confusing, or present the danger of unfair prejudice (which substantially outweighs the statement’s probative value), those hearsay statements are still subject to exclusion under Pardo. 

After Pardo left the door open to a broad interpretation of 90.803(23) that in some cases may conflict with 90.801(2)(b)’s partial ban on prior consistent hearsay statements, the Second District Court of Appeal clarified in Bullington that the admission of testimonial child hearsay after the child testifies at trial is still subject to a 90.801(2)(b) analysis. Bullington v. State, 311 So. 3d 102 (Fla. 2d DCA 2020)

In Bullington, a child victim testified regarding abuse she allegedly suffered at the hands of her father. After she testified and was cross-examined, the State called a law enforcement officer to testify that she had made prior consistent statements regarding the abuse to police. Bullington objected at trial, but was overruled – and convicted.

The Second District Court of Appeal ruled that prior consistent child hearsay statements that are testimonial in nature (such as to a police officer or a CPT interviewer) are inadmissible unless they are introduced in accordance with 90.801(2)(b) restrictions. If the declarant child testifies at trial, prior consistent testimonial hearsay is still inadmissible unless this is introduced to “rebut a charge of improper influence, motive, or recent fabrication.”

Bullington’s theory at trial was that before the victim ever disclosed the abuse, she had read a book that caused her to fabricate the allegations. Applying this theory to the facts, the court concluded that the child’s prior consistent testimonial hearsay statements should not have been admitted. Id.

The court reasoned that the child’s potential motive to fabricate the allegation would have arisen before the initial allegation was made. The court ruled that the statements could not be used to rebut charges of an “improper motive,” because any alleged improper motive predated the child hearsay statements.

However, if a child makes a nontestimonial prior consistent hearsay statement (such as a 911 call), this is generally admissible independent of 90.801(2)(b) – so long as:

• Its probative value is not substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, etc. (90.403). 
• The statement is not “untrustworthy” in nature

In assessing whether a child hearsay statement is untrustworthy, courts may consider:

• 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
• 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 

In sum, prior consistent child hearsay statements can be admissible in Florida, but only under certain circumstances. 

For a testimonial prior consistent child hearsay statement to be admissible in court, a child must testify and the defendant must have the opportunity to cross-examine them. Moreover, the statement must be introduced only to rebut charges of improper motive, influence or fabrication – any of which must have arisen after the testimonial hearsay statement was made but before the child testified at trial.

If prior consistent nontestimonial child hearsay is introduced, this is generally considered admissible under 90.803(23) – so long as it also meets the requirements of 90.403 for relevance. Testimonial prior consistent child hearsay must also satisfy 90.403 before it is admitted.

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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