Major Florida Court Creates 4-Factor Test to Determine If Child Hearsay is Testimonial

December 19, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 2nd District Court of Appeal reversed a guilty verdict and created a four-factor test to determine if child hearsay is testimonial or nontestimonial for purposes of confrontation.

In Florida, hearsay is a statement (or document/record) made outside of court that is offered into evidence (e.g. at trial for the jury) to prove the statement is true. Although hearsay is generally inadmissible in a court of law, there are various exceptions to this rule – which you can learn more about here. 

Examples of hearsay exceptions under Fla. Stat. 90.803 (e.g. hearsay is admissible regardless of whether the declarant is available or unavailable to testify) include:

• Present Sense Impression: Statement describing or explaining an event made while perceiving it or immediately after.
• Excited Utterance: Statement relating to a startling event made while under stress or excitement from the event.
• Then-Existing Mental, Emotional, or Physical Condition: Statement of current state of mind, emotion, sensation, or physical condition (e.g., intent, pain).
• Statements for Purposes of Medical Diagnosis or Treatment: Statement made for diagnosis/treatment describing medical history, symptoms, or cause.
• Recorded Recollection: A record made or adopted by the witness when memory was fresh, now insufficiently remembered.

Examples of hearsay exceptions under Fla. Stat. 90.804 (e.g. admissible only when the declarant is unavailable to testify at trial) include:

• Former Testimony: Prior testimony given under oath in a proceeding or deposition where the opposing party had a similar motive and opportunity to develop it.
• Statement Under Belief of Imminent Death: Statement made while believing death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (Death must be so close that the declarant proverbially heard “the beating wings of the angel of death.” People v. Sarzano, 212 N.Y. 231 (1914))

Note: A “declarant” is a formal legal term for the person who spoke or wrote the hearsay that is being introduced. 

There are two types of hearsay – testimonial and nontestimonial. Before we dive into the 2nd DCA’s opinion, it is important to understand the difference between these, as there are different rules surrounding the admission of each. 

The “testimonial/nontestimonial” distinction was most famously discussed by the U.S. Supreme Court in its landmark Crawford v. Washington, 541 U.S. 36 (2004) ruling.

There, the Court held that if a hearsay statement is testimonial in nature, one of the following must occur before the hearsay can be admitted into evidence:

• The declarant must be available to testify at trial, and the defendant must be given the opportunity to cross-examine them
• If the declarant is unavailable at trial, the defendant must have had a prior opportunity to cross-examine the declarant in a manner that satisfies Crawford (discovery deposition does not satisfy this)

A testimonial hearsay statement is primarily for the purpose of facilitating an ongoing police investigation (e.g. gathering facts for a prosecution). Examples may include:

• A written affidavit by an alleged victim prepared at the police station
• The contents of a police interview with a victim 3 days after the alleged incident
• A 911 call placed 5 days after the alleged crime occurred
• A CPT interview one week after child abuse allegedly occurred

By contrast, nontestimonial hearsay is a hearsay statement (or document/record) made primarily for the purpose of responding to an ongoing emergency. Examples may include:

• A 911 call while an incident is happening (e.g. “He’s shooting right now!”)
• Initial disclosures of sexual abuse by children to friends, family, teachers, etc.
• Statements made for purposes of medical diagnosis or treatment

Statements made to individuals who are not government agents are presumed nontestimonial. State v. Brocca, 979 So.2d 430 (Fla. 3d. DCA 2008) 

One of the most commonly discussed hearsay exceptions under Florida law is the child hearsay exception (Fla. Stat. 90.803(23)).

Even if the hearsay does not comply with any other exception under 90.803 or 90.804, the child hearsay exception allows the admission of hearsay statements if all of the following are true of them:

• The child had a physical, emotional, or developmental age of 17 or less at the time the statement was made
• The statement describes any act of child abuse or neglect, sexual abuse against a child, the offense of child abuse or aggravated child abuse, or any unlawful sexual act, contact, intrusion or penetration performed on or in the presence of the child
• The statement and source through which it is reported are sufficiently trustworthy
• The time, content and circumstances of the statement provide sufficient safeguards as to its reliability

Under Cabrera v. State, 206 So.3d 768 (Fla. 1st DCA 2016) and State v. Towsend, 635 So.2d 949 (Fla. 1994), courts consider many factors when evaluating if child hearsay (e.g. a CPT interview or other post-abuse disclosure) is reliable and trustworthy enough to be admitted into evidence.

These may include (among others):

• The mental and physical age and maturity of the child who made the statement
• Nature and duration of the abuse or offense
• Relationship of the child to the offender
• Vagueness or specificity of the accusation
• Contradictions (if any) in the accusation
• Whether the child uses terminology expected of someone of their age
• Child’s general demeanor and emotional state
• Spontaneity of the statement
• Whether physical evidence corroborates the account

Note: A trial judge must make detailed “trustworthiness and reliability” findings on the record before a hearsay statement can be admitted under Fla. Stat. 90.803(23)). This is reversible error if the admission of the statement was not harmless. For more on this, click here.

If a child hearsay statement is found to be nontestimonial, the statement automatically qualifies for admission under 90.803(23) if:

• The statement otherwise complies with the statutory requirements, and;
• The judge makes necessary trustworthiness/reliability findings on the record

But what if the child hearsay statements are testimonial in nature (made for the primary purpose of facilitating government investigation/prosecution)? If this is the case, the child must be made available for Crawford-compliant cross-examination for the statement to be admitted. 

Otherwise, this is reversible error as a violation of the defendant’s Sixth Amendment right to confront his accuser.

How do Florida courts determine whether child hearsay statements are testimonial in nature? One major court created a four-factor test to answer this question. Let’s take a look at the 2nd DCA’s ruling in Hernandez v. State, 946 So.2d 1270 (Fla. 2d. DCA 2007) and what it means for defendants in cases involving child hearsay.

KEY CASE: Hernandez v. State, 946 So.2d 1270 (Fla. 2d. DCA 2007) 

In Hernandez, the defendant (Hernandez) was charged with sexual battery on a minor. He was ultimately convicted.

One week after the alleged abuse occurred the child victim was brought to a hospital. There, the alleged victim and her parents spoke to a CPT (Child Protection Team) interviewer (government employees who conduct forensic interviews with children in physical and sexual abuse cases for prosecutorial use). 

At trial, the child was unavailable to testify. However, the CPT interviewer who spoke to the child and her parents at the hospital was called to the stand. Hernandez objected, arguing that the testimony of the CPT interviewer in the absence of the child would involve testimonial hearsay (inadmissible without the child testifying/Hernandez having the chance to cross-examine her).

The prosecutor argued that the statements were nontestimonial (specifically, for the purpose of medical diagnosis under 90.803(4)). The trial judge denied Hernandez’s objection – and the CPT interviewer testified both to the statements of the parents and the child regarding the abuse.

On appeal, Hernandez argued to the 2nd DCA that his confrontation rights were violated by the admission of what he claimed were testimonial hearsay statements – and that this error required a new trial. The 2nd DCA agreed and reversed Hernandez’s conviction, remanding for a new trial.

The 2nd DCA began by establishing a four-factor test to whether the hearsay introduced into the record by the CPT interviewer (from the child/parents) was testimonial in nature:

“We recognize that the questions that Ms. Shulman directed to the child and to her parents were asked in the context of a medical examination to determine whether a sexual battery had occurred. We also appreciate the importance of obtaining an accurate history from the patient to providing optimum medical care.”

“Nevertheless, four factors persuade us that the questions that Ms. Shulman directed to the child and to her parents were the functional equivalent of a police interrogation. These four factors are (1) the effect of the Florida statutes pertinent to the establishment and functioning of the CPT, (2) the nature and extent of law enforcement involvement in the examination of the child by Ms. Shulman at TGH, (3) the purpose of the examination performed by Ms. Shulman in her capacity as a member of the CPT, and (4) the absence of any ongoing emergency at the time Ms. Shulman conducted her examination of the child.”

Because these four factors revealed the hearsay statements were made primarily for the purpose of facilitating a law enforcement investigation/prosecution (rather than responding to an ongoing emergency), the 2nd DCA concluded they were testimonial in nature – requiring the child and her parents to have testified/been available for cross-examination.

Since the wrongful admission of the testimonial hearsay statements could not be shown to be harmless error (e.g. not have influenced the jury’s verdict), the 2nd DCA tossed Hernandez’s conviction:

“Because the child and her parents were unavailable and because Mr. Hernandez did not have a prior opportunity for cross-examination, it follows that the trial court erred in admitting the statements into evidence over the timely defense objection. … we conclude that the State has failed to show beyond a reasonable doubt that the error in admitting Ms. Shulman’s testimony recounting the statements made by the child and her parents did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129, 1138–39 (Fla.1986). Accordingly, Mr. Hernandez is also entitled to a new trial as a result of our disposition of the Confrontation Clause issue.”

In sum, Hernandez v. State, 946 So.2d 1270 (Fla. 2d. DCA 2007) is a significant development in Florida case law surrounding the admission of child hearsay statements and the Confrontation Clause (U.S. Constitution’s Sixth Amendment). 

The 2nd DCA found the statements of the alleged victim and her parents to the CPT interviewer at the hospital regarding the abuse were testimonial hearsay, because:

• The CPT interview is an essential part of how law enforcement receives information from alleged child victims (Factor #1)
• Law enforcement arranged the CPT interview and charged Hernandez with sexual battery only after receiving the CPT interviewer’s report (Factor #2)
• The purpose of the CPT interview was to gather facts for a criminal investigation into (and potential prosecution of) Hernandez (Factor #3)
• There was no ongoing emergency – the interview took place one week after the alleged abuse after the child and Hernandez were separated (Factor #4)

Florida defense attorneys and defendants should take note of Hernandez, as the decision serves as a useful guide in helping to determine whether child hearsay is testimonial or nontestimonial in nature. If the former, the child must testify and be made available for cross-examination under Crawford – and if this does not occur, it is often reversible error.

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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