North Florida’s Highest Court Discusses Child Hearsay Exception and Admissibility of Confessions

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

Florida’s 1st District Court of Appeal found a trial judge erroneously admitted a child’s hearsay disclosure of sexual abuse into evidence without making necessary reliability findings – and that as a result, the defendant’s confession should not have been admitted either.

In Florida, hearsay is defined as an out of court statement offered in court (into evidence) for the purpose of proving the content of the statement (or record/document) is true. Examples may include:

• “Amy told me John ran the red light.” (Offered to prove John ran the red light)
• “Rick told me James ran across Mulberry Street.” (Offered to prove Rick ran across Mulberry Street)
• “Tyler told me he saw Ray slap Sheila.” (Offered to prove Ray slapped Sheila)

Hearsay is typically inadmissible in court, though there are some exceptions to this rule. These exceptions are outlined under Fla. Stat. 90.803 (exceptions regardless of declarant availability) and 90.804 (exceptions if declarant is unavailable). 

Examples of hearsay considered admissible under 90.803 –  allowing the admission of hearsay regardless of if the declarant testifies – 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 90.804 – allowing the admission of hearsay only when the declarant is not available 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))
• Statement Against Interest: Statement so contrary to declarant’s own interest (e.g., penal, pecuniary, proprietary) that a reasonable person wouldn’t have said it unless true.

Note: For a comprehensive breakdown on hearsay in Florida and the full list of exceptions, click here. 

Hearsay statements can only be admitted if they comply with one or more exceptions, and either of the following are true:

• The hearsay statement is testimonial in nature, and the declarant (speaker/writer of the hearsay) has been made available to testify and be cross-examined by the defendant
• The hearsay is nontestimonial in nature (allowing the hearsay’s admission regardless of if the declarant testified and is cross-examined)

What is the difference between testimonial and nontestimonial hearsay? This distinction was created by the U.S. Supreme Court in a major ruling – Crawford v. Washington, 541 U.S. 36 (2004).

Under Crawford (and Davis v. Washington, 547 U.S. 813, 822 (2006)), the difference is:

• Testimonial hearsay is made primarily for the purpose of facilitating an ongoing police investigation or providing information for a potential (or ongoing) prosecution, after the crime has concluded 
• Nontestimonial hearsay is made primarily for the purpose of responding to an ongoing emergency (e.g. crime)

Examples of testimonial hearsay (inadmissible without the declarant being made available for testimony/cross-examination compliant with the Confrontation Clause) may include:

• A 911 call one week after an alleged crime occurred (e.g. “Last week, Tim shot John…”)
• A CPT interview between an alleged child victim of physical/sexual abuse and a forensic interviewer 
• An alleged victim authors an affidavit at a police station regarding a crime and gives it to law enforcement 

By contrast, examples of nontestimonial hearsay (admissible regardless of if the declarant was cross-examined, so long as it complies with a hearsay exception under 803 or 804) include:

• A child’s initial disclosure of physical or sexual abuse to a friend, family member, teacher, etc.
• A 911 call during an ongoing emergency (e.g. “Tim is shooting at us right now…”)
• Dying declarations (rendering the declarant unavailable at trial) during or immediately after a crime took place (e.g. victim says “John stabbed me” right before dying)

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

Under this provision of 90.803, any hearsay statement made by a child is admissible that satisfies the following conditions:

• 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

Before a child’s hearsay statement can be admitted pursuant to this exception, there are two key determinations to make. These include:

• Whether the child must testify/face cross-examination (if the hearsay is testimonial in nature, such as a CPT interview) before the statement can be admitted
• Whether the hearsay is reliable and trustworthy (if so, a specific and detailed finding of why must be made by the trial judge on the record)

Per State v. Townsend, 635 So.2d 949 (Fla. 1994) and Cabrera v. State, 206 So.3d 768 (Fla. 1st DCA 2016), judges may consider a variety of factors when evaluating whether child hearsay sought to be introduced under 90.803(23) is sufficiently reliable and trustworthy.

These include, among others: 

• The mental and physical age and maturity of the child who made the statement
• Contradictions (if any) in the accusation
• Whether the child uses terminology expected of someone of their age
• Relationship of the child to the offender
• Nature and duration of the abuse or offense
• Vagueness or specificity of the accusation

If the trial judge fails to make sufficiently specific findings of fact (as to why the child hearsay is reliable/trustworthy) on the record before admitting the statements, this is reversible error if the State cannot prove beyond a reasonable doubt that the child hearsay did not impact the outcome of the proceeding (e.g. trial).

In addition to rules surrounding the admission of child hearsay, Florida also has rules regarding the admissibility of confessions in criminal cases. The State must first establish corpus delicti before a defendant’s admission to committing a crime (e.g. during police interrogation) can be shown to a jury. 

Per Fla. Stat. 92.565, this includes providing at least some evidence on the record that the crime occurred – and that all the elements of the charged crime were committed. If the State has no evidence of the crime other than the defendant’s confession, the confession is inadmissible – so the State has no case. Bradley v. State, 918 So.2d 337, 339 (Fla. 1st DCA 2005)

So, what happens when a child hearsay statement is wrongly admitted into evidence – and the only other evidence that exists of a defendant’s guilt is their confession? Does this mean that under Fla. Stat. 92.565 and 90.803(23), the conviction must be reversed?

The answer is yes – as Tallahassee and North Florida’s highest court explained. Let’s take a look at a major case from the 1st DCA, N.C. v. State, 947 So.2d 1201 (Fla. 1st DCA 2007), and what it means for the admissibility of child hearsay and confessions in Florida.

KEY CASE: N.C. v. State, 947 So.2d 1201 (Fla. 1st DCA 2007)

In N.C., the defendant (N.C.) was a juvenile (under 18) who was accused of sexual battery on a minor under 12. He was adjudicated delinquent (juvenile finding of guilty) by a trial judge and sentenced to prison.

Before N.C.’s trial (an “adjudicatory hearing” for juveniles), the State filed a notice to admit hearsay statements from the alleged child victim to a CPT interviewer. The judge admitted them, but did not make any specific findings on the record as to why the statements were reliable and trustworthy (as 90.803(23) requires).

The CPT interview (child hearsay) was played at N.C.’s trial (in addition to the child testifying), and N.C. was adjudicated delinquent. N.C.’s confession to law enforcement was also introduced into evidence.

On appeal to the 1st DCA, N.C. argued the trial judge erred by admitting the hearsay statements, as the judge failed to make a sufficiently detailed on-the-record finding as to why the victim’s interview statements were reliable and trustworthy. According to N.C., this violated 90.803(23).

N.C. further argued that because the wrongly admitted child hearsay statement(s) were the only evidence of the crime before his confession came in, the State could not establish corpus delicti  to admit the confession. Because of this error, N.C. argued a new trial (adjudicatory hearing) was required.

Florida’s 1st District Court of Appeal agreed – reversing the adjudication of delinquency and remanding for a new trial. Addressing the trial judge’s failure to make any record as to why he found the child hearsay reliable, the 1st DCA wrote:

“Here, the trial court concluded that the child victim’s statement was reliable, but made no findings to indicate the basis for its decision. After our review of the record, we conclude this was not harmless error. Cf. Salter v. State, 500 So.2d 184, 186 (Fla. 1st DCA 1986) (explaining that although the trial court erred in admitting a child victim’s hearsay statement, it was harmless when the child testified at trial that the appellant touched her and the child’s mother testified that the child told her immediately following the incident).”

The 1st DCA found that the admission of the child hearsay was not “harmless” since it served as the evidentiary basis (corpus delicti) for admitting N.C.’s confession, which may have influenced the outcome of the trial:

“Other than Appellant’s verbal confession, the child victim’s statement was the only evidence introduced to establish that Appellant committed a sexual battery. Because corpus delicti must be established independently of a defendant’s confession, before the confession is admitted into evidence, there must be evidence presented showing that the crime was committed and that all elements of the crime existed. See Bradley v. State, 918 So.2d 337, 339 (Fla. 1st DCA 2005).”

“We note that the State did not attempt to admit Appellant’s confession into evidence under section 92.565, Florida Statutes (2005), and does not assert that it is admissible as such on appeal; therefore, without first admitting the child victim’s hearsay statement, Appellant’s verbal confession could not have been admitted. Thus, admission of the child victim’s hearsay statement was not harmless error. … Accordingly, we reverse Appellant’s adjudication of delinquency and remand for the trial court to conduct a new adjudicatory hearing.”

In sum, N.C. v. State, 947 So.2d 1201 (Fla. 1st DCA 2007) is a significant development in Florida’s corpus of case law surrounding the child hearsay exceptions and the admissibility of a defendant’s confession under the doctrine of corpus delicti (codified in Fla. Stat. 92.565).

The 1st DCA held:

• The trial judge erred in admitting the alleged victim’s CPT interview under the child hearsay exception, because he failed to make detailed findings regarding why the child’s statements were reliable/trustworthy on the record (Fla. Stat. 90.803(23))
• The CPT interview tape served as the basis for the admission of N.C.’s confession to the offense under Fla. Stat. 92.565
• Because the child hearsay was erroneously admitted, the confession was also erroneously admitted – requiring N.C. to receive a new trial (since this evidence may have influenced the judge’s findings)

Florida’s criminal defense community should take note of N.C. v. State, 947 So.2d 1201 (Fla. 1st DCA 2007), as it reinforces the need for detailed findings on the record by a trial judge before child hearsay can be admitted. 

It also sheds light on when corpus delicti can serve as the basis for motions to dismiss or motions for judgment of acquittal at trial (as well as post-conviction relief) in sex crime cases.

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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