North Florida’s Highest Court Discusses When Child Hearsay Is (And Is Not) Admissible In Major Case

December 4, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal upheld the admission of an alleged sexual abuse victim’s CPT interview tape under the child hearsay exception, finding the trial judge made sufficient findings on the record of its reliability and trustworthiness.

In Florida, hearsay is a statement (or writing/record) made outside of court that is offered in court to prove that the content of the hearsay is true. Hearsay is generally inadmissible in a court of law, but there are various exceptions to this maxim (which you can read more about here).

There are two types of hearsay – testimonial hearsay and nontestimonial hearsay. Crawford v. Washington, 541 U.S. 36 (2004). The difference between these is important to understand during discussions about hearsay admissibility, as there are different rules surrounding the admission of each.

Testimonial hearsay is a hearsay statement (or writing/record) that was primarily made for the purpose of facilitating an ongoing police investigation or prosecution. Examples of testimonial hearsay may include:

• 911 calls reporting a crime days after it occurred
• A CPT (Child Protection Team) interview with an alleged minor abuse victim after a defendant has been arrested
• A written affidavit prepared at a police station

For testimonial hearsay to be admissible at a Florida criminal trial, one of the following must be true:

• The declarant (speaker/writer of the hearsay) testifies at trial and the defendant has the opportunity to cross-examine them
• The declarant is unavailable to testify at trial, but the defendant had the prior chance to cross-examine them in a manner that satisfies Crawford (and the U.S. Constitution’s Confrontation Clause)

To learn more about the requirements of the Sixth Amendment’s Confrontation Clause and how it relates to the admissibility of testimonial hearsay, click here.

The other form of hearsay is nontestimonial hearsay. This is defined as a hearsay statement made for the primary purpose of responding to an ongoing emergency. Davis v. Washington, 547 U.S. 813, 822 (2006). Examples of nontestimonial hearsay may include:

• Dying declarations (e.g. someone saying “John shot me” as they bled out)
• 911 calls made during an ongoing criminal incident
• Initial disclosures by a child victim of physical or sexual abuse to a relative, friend, teacher, etc.

Nontestimonial hearsay is admissible regardless of the declarant’s availability if it complies with an exception under Fla. Stat. 90.803 – and only if a declarant is unavailable to testify under Fla. Stat. 90.804. For more on this key difference, click here. 

One of the most often discussed “hearsay exceptions” under Florida law is Fla. Stat. 90.803(23) – the child hearsay exception. Under the child hearsay exception, a child’s hearsay statements are admissible (even if they do not fall under another designated exception) in court if all of the following are true:

• 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

Per Cabrera v. State, 206 So.3d 768 (Fla. 1st DCA 2016), courts consider a plethora of factors when evaluating if child hearsay (e.g. a CPT interview or other post-abuse disclosure) is reliable and trustworthy enough to be admitted. 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

A judge does not need to weigh every single potential factor when evaluating whether the child’s statement complies with Fla. Stat. 90.803(23) (e.g. if it’s sufficiently reliable/trustworthy). But they do need to make a thorough, on-the-record determination under the statute as to why the child hearsay is sufficiently reliable and trustworthy before it can be admitted.

As you can imagine, this sometimes creates a legal “gray area.” A trial judge may make a finding that child hearsay is sufficiently reliable and trustworthy (and admit the hearsay into evidence at a defendant’s trial) – but fail to elaborate as to why they found this. Such a failure can lead to a guilty verdict being reversed on appeal. Hyre v. State, 240 So.3d 47 (Fla. 2d. DCA 2018) 

But when are a judge’s on-the-record findings as to the reliability of child hearsay sufficiently detailed, so as to prevent a defendant from having their conviction reversed because a judge did not conduct a thorough enough evaluation? 

This critical legal question was answered by Tallahassee and North Florida’s highest court (1st District Court of Appeal) in a major case: Small v. State, 179 So.3d 421 (Fla. 1st DCA 2015). Let’s break it down.

KEY CASE: Small v. State, 179 So.3d 421 (Fla. 1st DCA 2015)

In Small, the defendant (Small) was charged with and convicted of capital sexual battery (victim under 12, defendant 18 or older). The case largely rested on child hearsay statements made by the alleged victim – the 6-year-old daughter of the defendant.

Before trial, the State moved to admit the CPT interview (forensic interview by a government employee of the child following the defendant’s arrest) into evidence under Fla. Stat. 90.803(23). 

At a pretrial hearing, the defense objected to the admission of the tape under the child hearsay exception, claiming the child’s statements were not sufficiently reliable and trustworthy. But the trial judge disagreed and allowed the video of the CPT tape to be played for the jury. The child also testified at trial – and the defendant was convicted.

On appeal, Small alleged that the trial judge did not comply with Fla. Stat. 90.803(23) because he did not make a specific and thorough on-the-record finding as to why the content of the child’s CPT interview was trustworthy and reliable (required by the child hearsay exception).

Small also alleged that a particular portion of the CPT interview, during which the alleged victim appeared to begin discussing allegations against a separate offender (a young boy), shed doubt on the reliability of her statements. 

However, the 1st DCA rejected Small’s arguments and affirmed his conviction. The 1st DCA began by noting what a trial judge is required to determine at a pretrial hearing when evaluating whether child hearsay is admissible under Fla. Stat. 90.803(23):

“For a child hearsay statement to be admissible at trial, the court must hold a hearing outside the presence of the jury to determine if the statement meets two reliability conditions: ‘(1) the source of the information through which the statement was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.’ State v. Townsend, 635 So.2d 949, 954 (Fla. 1994). Suggested factors for courts to consider in making this determination may be found in both statutory and case law.’”

The 1st DCA found that the trial judge in Small’s case made a thorough record regarding the reliability and trustworthiness of the child hearsay, noting:

“Here, the trial judge considered factors suggested by section 90.803(23)(a)(1) and State v. Townsend and announced his extensive findings on the record. For each finding the court announced, it also provided a detailed explanation of its reasoning. For example, in relation to the child’s mental and physical age, the court stated the following: ‘First, the mental and physical age of the child. The child is six years of age. She appeared to me to be very bright. She stated she was in kindergarten. She had a very detailed memory, not only about the events that she described, but other things as well, such as what happens in kindergarten, what happens in school, names of her classmates that cause trouble in class, et cetera.’”

The 1st DCA rejected Small’s argument that the trial judge erred by not considering the child’s mention of a separate offender (the young boy) during the CPT interview as an “inconsistency”: 

“Another factor the trial court considered was whether there were any inconsistencies in the child’s accusations. The court found the child was consistent throughout and addressed Appellant’s concern about the young boy as follows: My review of the video tape and of the statements proffered in paragraph two of the notice of intent, there were no inconsistencies that I can see. The child’s story was consistent throughout. She described another event with another person whose name, I think, was [J.], but I’m not sure I remember the exact name.”

Commending the trial judge for making clear reliability and trustworthy findings on the record, the 1st DCA concluded:

“We conclude that the trial court’s findings concerning the reliability of the child hearsay statements are specific, properly placed on the record, and supported by competent, substantial record evidence. We further find that the judge analyzed the child’s statements according to the factors suggested by statute and case law and appropriately assessed Appellant’s concern about the additional allegations involving a separate offender. We commend the trial court for making a thorough record, and we affirm Appellant’s convictions and sentences.”

In sum, Small v. State, 179 So.3d 421 (Fla. 1st DCA 2015) is a significant development in Florida case law on the issue of child hearsay, CPT interview admissibility, and how “thorough” trial judges must be when making reliability and trustworthiness determinations in child hearsay admissibility hearings. The 1st DCA held in Small:

• The trial judge made a thorough on-the-record finding of alleged victim’s trustworthiness and reliability by relying upon a variety of the factors listed in Townsend (and reiterated in Cabrera v. State, 206 So.3d 768 (Fla. 1st DCA 2016))
• The trial judge specifically found child’s alleged “inconsistency” alleged by Small was not actually an inconsistency 
• The record made by the trial judge was clear, allowing the admission of the child hearsay statement (CPT tape) because it was sufficiently reliable and trustworthy
• Because the CPT interview being admitted into evidence was proper, Small’s conviction required affirmance

Florida criminal defense attorneys and defendants confronting child hearsay should be aware of Small and its impact on the legal landscape surrounding this key issue. 

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.

  Social Share