North Florida’s Highest Court Limits Use of Child Hearsay, But Upholds Delinquency Finding

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

Florida’s 1st District Court of Appeal held that although a child’s hearsay statements were improperly admitted through her mother, this was ‘harmless error.’

In Florida, the admission of hearsay is a key aspect of many criminal trials. Hearsay is formally defined as an out of court statement offered in court for the truth of the matter asserted in the statement. Put simply, this means a statement made outside of the courtroom (e.g. trial) that is being offered into evidence for the purpose of showing that it is true.

Hearsay is generally inadmissible in Florida, but there are various exceptions to this rule. First, it is important to understand that there are two types of hearsay – testimonial and nontestimonial.

Under Davis v. Washington, 547 U.S. 813, 822 (2006), testimonial hearsay is defined as hearsay statements made primarily for the purpose of assisting an ongoing government investigation or prosecution.

Common examples of testimonial hearsay statements may include:

• Statements made during a pretrial deposition
• CPT interview tapes between an alleged child victim and a state employee
• A 911 call made after the ‘ongoing emergency’ (crime) has been over for a while

Per Crawford v. Washington, 541 U.S. 36 (2004), testimonial hearsay cannot be offered into evidence (at trial) unless one of two things is true:

• The declarant (speaker/writer of the statement) testifies at trial and the defendant has the chance to cross-examine them
• The declarant is unavailable at trial, but the defendant has previously had the chance to cross-examine them in a Crawford-compliant fashion

By contrast, nontestimonial hearsay statements are made primarily for the purpose of responding to an ongoing emergency. Examples of nontestimonial statements, which are more likely to be admissible at trial, include:

• 911 call during the actual crime (e.g. “He’s coming at me with a gun!”)
• A child’s initial disclosure of abuse to a parent or relative (not to the police/prosecutors)
• Business records made at or near the time of the event, by someone with knowledge
• Statements under belief of impending death

Nontestimonial hearsay is admissible even if the declarant is never cross-examined, so long as it is covered by one of Florida’s designated hearsay exceptions. For more on these exceptions, click here.

One of the most sweeping hearsay exceptions under Florida law is the child hearsay exception, codified by Fla. Stat. 90.803(23). This allows the offering of an out of court statement (even if testimonial, under certain circumstances) by a child for the truth of the matter asserted if all of the following are true of it:

• The child had a physical, emotional, or developmental age of 17 or less at the time that 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

The last of these requirements is critical. Under the statute, the trial judge must make an on-the- record determination regarding the reliability and trustworthiness (or lack thereof) of the child hearsay statement (such as a CPT interview) before its admission. Factors a judge may consider in evaluating this 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
• Motive to fabricate or lack thereof
• Whether the child uses terminology expected of someone of their age

But what happens if a trial judge simply says that they find the child hearsay statement reliable before admitting it at trial, without making any record as to why? Can the failure of a judge to evaluate the reliability and trustworthiness of that hearsay on the record be grounds to overturn a guilty verdict against a defendant it is used against?

The answer is – sometimes, but not always. Let’s take a look at G.H. v. State, 896 So.2d 833 (Fla. 1st DCA 2005) to determine what Tallahassee and North Florida’s highest court says about this key legal issue.

KEY CASE: G.H. v. State, 896 So.2d 833 (Fla. 1st DCA 2005)

In G.H., a juvenile defendant (G.H.) was adjudicated delinquent (found guilty) of sexual battery on a child under 12. He was convicted of the offense and appealed on the grounds that the trial judge failed to make sufficient on-the-record findings as to the reliability of child hearsay.

At trial, the alleged victim testified directly. Following this, the alleged victim’s mother testified that she’d noticed a change in the child’s behavior. She asked the child if anyone had touched her in an improper way. The child’s mother testified that the child told her someone with G.H.’s first name had touched her, but she was afraid to reveal his full name because he’d threatened her.

After the mother said this, G.H.’s counsel objected to the admission of the statements and asked for a formal ruling on the child hearsay statements (which were being introduced through the child’s mother, pursuant to Fla. Stat. 90.803(23)). The judge made no pretrial finding as to the reliability of the statements.

In reply to the objection, the judge replied that he found the statements sufficiently reliable and trustworthy (“I find specifically that the statements are reliable and trustworthy, the testimony I’ve heard in this trial thus far.”), but did not elaborate as to why. G.H. was ultimately adjudicated delinquent.

On appeal to the 1st DCA, G.H. asserted that the child hearsay was erroneously admitted at trial. G.H. noted that Fla. Stat. 90.803(23) requires the judge to make specific, on-the-record factual findings as to why the child hearsay is reliable and trustworthy. As the judge in G.H.’s case failed to explain his ruling, G.H. requested a new trial.

The 1st DCA agreed that the judge was required to make additional findings of fact on the record before the mother’s statements could be offered at trial, but affirmed the adjudication of G.H.’s delinquency. The court wrote:

“When determining whether to admit child hearsay statements regarding abuse (here, the mother’s testimony), courts must find the time, content, and circumstances of the statement provide sufficient safeguards of reliability… However, in all cases, courts must make specific findings of fact, on the record, regarding the reliability of the statement. … Conclusory assertions of reliability, or boilerplate recitations of the statutory language are insufficient.”

“Here, the trial court’s statement: ‘I find specifically that the statements are reliable and trustworthy, the testimony I’ve heard in this trial thus far,’ was conclusory and inadequate. See Townsend, 635 So.2d at 957. Thus, we must determine whether there is a reasonable possibility that this error affected the verdict.”

The 1st DCA then conducted a “harmless error” analysis to determine if there was a reasonable possibility that the judge’s admission of the statements contributed to the verdict of delinquency (finding of guilt). The 1st DCA concluded there was not, as there was ample evidence of G.H.’s guilt:

“Here, even without the hearsay statements, the trial court had the child’s direct testimony, prior deposition testimony, and drawings to consider. We find these facts and this record sufficient to conclude, beyond a reasonable doubt, that the mother’s hearsay testimony did not contribute to the verdict, thus rendering admission of the hearsay statements harmless.”

In sum, G.H. v. State, 896 So.2d 833 (Fla. 1st DCA 2005) is a significant development in Florida case law surrounding the admission of child hearsay statements. Florida’s 1st District Court of Appeal held that the trial judge’s terse statement that the child hearsay was “reliable,” without explaining why, failed to satisfy the child hearsay exception.

However, the 1st DCA concluded that even though the statements by the alleged victim’s mother were wrongly admitted into the record (due to the trial judge’s error), there was no reasonable possibility this contributed to the finding that G.H. committed sexual battery. Because the error was “harmless,” the delinquency adjudication was affirmed and G.H. did not receive a new trial.

The G.H. case is an important one for Florida defendants and defense attorneys to understand in the context of arguing child hearsay – particularly in Tallahassee and North Florida (as the case is binding precedent).

If someone is concerned about a charge of sexual abuse and the admission of child hearsay, it is crucial to find experienced and aggressive legal representation as soon as possible. This vital decision could make the difference in whether or not a person is subject to 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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