Testimonial vs. Nontestimonial Hearsay: What’s the Difference?

May 31, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement. Though hearsay is generally inadmissible in court, hearsay “exceptions” exist under Florida law allowing for the use of nontestimonial hearsay statements at trial under certain circumstances – even if a declarant (speaker) is never cross-examined by the defendant.

In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court ruled that without the chance for a defendant to cross-examine a witness who made a testimonial hearsay statement, such statements are inadmissible in court. 

But what is the difference between a testimonial hearsay statement and a nontestimonial hearsay statement? This blog will address that important question.

Whether a hearsay statement is considered testimonial (subject to Crawford’s confrontation requirements) or nontestimonial (governed by Florida’s hearsay exceptions) depends on the underlying purpose of the statement. Crawford mandates that the admission of testimonial hearsay at trial violates a defendant’s right to confrontation, unless:

• The declarant (person who made the hearsay statement) is unavailable to testify, and
• The defendant had a prior opportunity to cross examine the declarant

The question of whether a statement is testimonial or nontestimonial often arises in cases involving child hearsay. When acts of physical or sexual abuse against a child or in a child’s presence are alleged by a child in an out-of-court (hearsay) statement, Florida’s exception for child hearsay gives the court broad latitude to use a hearsay statement in court if: 

• The source through which the information was reported must indicate trustworthiness (may be the child directly or another “trustworthy” source)
• The time, content, and circumstances of the statement provide sufficient safeguards of its reliability

Florida’s child hearsay exception (Fla. Stat. Section 90.803(23)) is broad and makes no formal distinction between testimonial and nontestimonial statements by an alleged child victim. But in spite of this language, the Florida Supreme Court has ruled that testimonial hearsay – even it originates from a qualifying child abuse victim – cannot be admitted in court unless:

• The child testifies at trial, or
• The child is deposed and cross-examined by the defendant at a formal hearing before the trial (such as a Rule 3.190(j) deposition to perpetuate testimony).

Note: A typical discovery deposition of a child witness taken under Fla. Rule of Criminal Procedure 3.220(h) does not serve as a substitute for confrontation at trial under Crawford. Testimonial hearsay statements from an alleged victim regarding child abuse must be subject to cross-examination before their admission. Moreover, a discovery deposition’s contents are inadmissible as substantive evidence at trial against a defendant under Contreras.

The key distinction between testimonial and nontestimonial hearsay is that testimonial hearsay is given:

• During a police interrogation for the primary purpose of establishing or proving past events potentially relevant to criminal prosecution
• In sworn affidavits, depositions, or written statements prepared for trial
• During formal interviews or forensic examinations (such as a child protection team interview) at the request of law enforcement

In essence, a statement is testimonial hearsay if it is made with the primary intent of developing testimony relevant to a current or future prosecution. State v. Contreras, 979 So.2d 896 (Fla. 2008)

By contrast, nontestimonial hearsay is not barred by the Confrontation Clause from being admitted in court, even if the declarant (speaker) has not been cross-examined by the defendant. Examples of nontestimonial hearsay may include:

• Excited utterances made in response to the occurrence of a startling event 
• Statements made to a medical professional for the purpose of receiving medical treatment
• 911 calls made during an ongoing emergency
• Remarks to family or friends, not made in anticipation of a trial or in furtherance of a potential prosecution

In child hearsay cases (where abuse is alleged by a child victim), statements that are not given to law enforcement or forensic interviewers are generally considered nontestimonial. These include to sources such as:

• Teachers
• Parents
• Friends
• Other relatives, even in response to direct questioning
• Doctors, if it describes a resultant symptom of the abuse

Nontestimonial statements from an alleged victim are admissible in Florida courts, even if the child is not cross-examined under the child hearsay exception (Fla. Stat. 90.803(23)). 

State v. Contreras, 979 So.2d 896 (Fla. 2008) recognized that if a law enforcement officer inadvertently overhears a disclosure of abuse in an environment where such a statement would ordinarily be considered nontestimonial (such as a child disclosing to her mother at a public park), it is still considered a nontestimonial statement. The law enforcement officer can still testify to the hearsay statement even if the child is unavailable to testify at trial and has not been cross-examined. 

In State v. Brocca, Florida’s Third District Court of Appeal noted that statements made to individuals who are not government agents are presumed nontestimonial. State v. Brocca, 979 So.2d 430 (Fla. 3d. DCA 2008) 

States have varying rules surrounding the admissibility of nontestimonial hearsay. Florida’s courts consider whether the primary purpose of a statement is to assist police with a prosecution, and if not, it is generally categorized as nontestimonial hearsay. But Florida law doesn’t make all nontestimonial hearsay admissible against a defendant, even if cross-examination does not occur.

Even if hearsay is nontestimonial, it must fall under one of Florida’s designated hearsay exceptions, outlined in 90.803 (admissible regardless of declarant’s availability) and 90.804 (admissible only if the declarant is unavailable at trial). Some of the most frequently relied upon exceptions under 90.803 include:

• Spontaneous statement or excited utterance: Made during or shortly after a startling event while under the stress of excitement
• Then-existing mental, emotional, or physical condition: Information about the declarant’s intent, plan, motive, emotion, sensation, or physical condition at the time of the statement
• Statements made for purpose of medical diagnosis or treatment 
• Recorded recollection (written or said while fresh in memory of the witness)
• Business records exception: Records made in the course of regularly conducted business activity
• Public records: Records or reports of public offices or agencies about regular activity
• Learned treatises: Statements from recognized medical or scientific publications, used during expert testimony
• Child hearsay: Qualifying statements of a child describing abuse 

Under Fla. Stat. Section 90.804, some of the most commonly relied upon exceptions include:

• Former testimony: Testimony given  in another proceeding where the party against whom it is offered had an opportunity and similar motive to develop the testimony
• Dying declaration: Statement made while believing death was imminent (hearing “the beating wings of the angel of death.” People v. Sarzano, 212 N.Y. 231 (1914))
• Statement against interest: A statement a reasonable person would not have made unless it were true because it was against their own interest
• Statement of personal or family history (birth, death, marriage, etc.)

In sum, the difference between testimonial hearsay and nontestimonial hearsay is that testimonial hearsay involves a hearsay statement made for the primary purpose of developing a prosecution or assisting a government investigation. Nontestimonial hearsay is a hearsay statement made for a different primary purpose (such as an excited utterance, or a statement to a friend or relative).

Florida law (under Fla. Stat. Sections 90.803 and 90.804) regulates the admissibility of out of court statements (hearsay statements) in a court of law. Nontestimonial hearsay, if it falls under one of these exceptions, is admissible in court and can be used against a defendant even if the declarant does not testify – so long as it is covered by a hearsay exception.

By contrast, if a party seeks to admit a testimonial hearsay statement in court, the declarant must be made available for cross-examination by the defendant. If this does not occur, testimonial hearsay is inadmissible under Crawford and Contreras. This right to confrontation also applies to alleged child abuse victims if their hearsay statement was testimonial. 

If someone is arrested and formally charged in Florida in a case involving potential admission of 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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