The Confrontation Clause and Hearsay in Florida

June 20, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida and all 50 U.S. states, a defendant has a right to confront witnesses against them at trial. Under the U.S. Constitution’s Confrontation Clause found in the Sixth Amendment, anyone accused of a criminal offense has the right to cross-examine witnesses offering testimony against them.

However, hearsay is sometimes admissible in court, adding a significant wrinkle to this otherwise straightforward calculus. Hearsay is defined as an out of court statement offered in court to prove the truth of the matter asserted in the statement. 

Florida’s Rules of Evidence on hearsay (90.803) provide for various hearsay exceptions, such as:

• 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.
• Records of Regularly Conducted Business Activity: Business records made near the time by someone with knowledge, as part of a routine practice.
• Child Hearsay: Out-of-court statements of a child with a physical or developmental age 17 or younger describing sexual abuse or physical abuse, admissible if trustworthy and child is either available for cross or unavailable with corroboration.

Given that hearsay is occasionally allowed to be introduced at a criminal proceeding without a witness testifying and being cross-examined, how do Florida’s courts balance the admission of hearsay with the Sixth Amendment right to confrontation? This article will explore the answer to this question.

The U.S. Supreme Court, which binds all of the nation’s courts (including Florida’s), has been consistent that a defendant has the right to confront witnesses against them at trial. Under British common law, this generally involves in-person, face-to-face cross-examination by a defendant or a defendant’s attorney at trial. Crawford v. Washington, 541 U.S. 36 (2004)

Before Crawford, the U.S. Supreme Court had narrowed the right to confrontation in Ohio v. Roberts, 448 U.S. 56 (1980). In that case, the Court held that hearsay could be admitted at a criminal trial against a defendant – without the hearsay declarant (speaker) testifying – if two conditions were met:

• The declarant was unavailable to testify at trial 
• The statement bore “adequate indicia of reliability” – meaning it either fell within a “firmly rooted” hearsay exception or had “particularized guarantees of trustworthiness”

Roberts allowed judges to weigh the reliability of hearsay statements before trial in the absence of in-court testimony, making the question of hearsay’s admissibility more of a procedural than a constitutional one.

But the U.S. Supreme Court reversed course in Crawford. Scrapping the Roberts standard which allowed for the admission of “sufficiently reliable” hearsay of all forms, Crawford distinguished between two types of hearsay: testimonial and nontestimonial. 

Crawford ruled that testimonial hearsay against a defendant is inadmissible unless the defendant has the opportunity to cross-examine the witness at trial – or before trial if the witness is found to be unavailable. But Crawford did not do the same for nontestimonial hearsay – allowing its admission if it fell within a firmly rooted hearsay exception or was determined sufficiently trustworthy (pursuant to state or federal evidence rules). 

The difference between testimonial and nontestimonial hearsay is that testimonial hearsay is an out of court statement made for the primary purpose of assisting a government investigation, or to lay the groundwork for a future prosecution. By contrast, nontestimonial hearsay is an out of court statement made for the primary purpose of responding to an ongoing emergency.

The testimonial and nontestimonial hearsay distinction was further developed in Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, 547 U.S. 813 (2006), which were decided together (companion cases). Hammon ruled that a victim statement to a police officer after a domestic violence emergency ended was considered testimonial hearsay – inadmissible at trial unless she testified and the defendant had the opportunity to cross-examine her. Id. 

Other examples of testimonial hearsay statements may include any of the following:

• A statement to a government investigator (such as a forensic interview in a child abuse case)
• Written affidavits or lab reports 
• Forensic reports
• Pretrial testimony such as depositions (in the absence of cross-examination)

By contrast, nontestimonial hearsay is governed by jurisdictional hearsay exceptions (which vary by state). Nontestimonial hearsay may include:

• Excited utterances to 911 operators during an active emergency (Davis)
• Statements to friends, family or bystanders not made for investigative purposes 
• Statements made for the purpose of medical treatment to a physician
• Statements made to teachers, nurses or daycare workers (unless at the behest of law enforcement, Ohio v. Clark, 576 U.S. 237 (2015))

Of Florida’s many hearsay exceptions, perhaps the most contentious in the context of the right to confrontation is child hearsay.

Under Fla. Stat. Section 90.803(23), child hearsay is admissible when the following conditions are satisfied:

• The declarant child has a physical, mental, emotional or developmental age of 17 or less
• The statement describes an act of physical or sexual abuse of which the child was a victim, or the act occurred in their presence
• There is a substantial likelihood of severe mental or emotional harm to the child if they are forced to provide in-court testimony
• The statement is not considered untrustworthy

Despite the lack of distinction between testimonial and nontestimonial hearsay in 90.803(23), and a reliance on a “reliability” analysis rejected by Crawford, Florida’s Supreme Court has held that testimonial child hearsay is inadmissible at trial unless the defendant has had the opportunity to previously cross-examine the accuser. This is not satisfied by a discovery deposition. State v. Contreras, 979 So.2d 896 (Fla. 2008).

In balancing the tension between the broad language of 90.803(23) and Crawford’s language categorically forbidding the introduction of testimonial hearsay in the absence of an opportunity for confrontation of the accuser by a defendant, Contreras clarified that nontestimonial hearsay alleging acts of abuse by a child victim could still be admitted if:

• The hearsay statement was made for the primary purpose of responding to an ongoing emergency (such as an initial 911 call, a disclosure of abuse to friends or relatives, or other non-investigative sources)
• The content of the statement is not untrustworthy
• Its probative value is not substantially outweighed by the danger of unfair prejudice, confusion, misleading the jury, or needless presentation of cumulative evidence (90.403)

Thus, child hearsay alleging abuse may be admitted even if it does not fall under a traditional Florida hearsay exception – so long as the statement was nontestimonial. This is not the case for testimonial hearsay statements, however.

Note: Courts have recognized that the Confrontation Clause does not categorically prohibit a child witness in a child abuse case from testifying outside the defendant’s physical presence via one-way closed-circuit television. However, the trial court makes a case-specific finding that the procedure is necessary to protect the welfare of the child witness. Maryland v. Craig, 497 U.S. 836 (1990)

In sum, the Sixth Amendment to the U.S. Constitution guarantees defendants the right to confront their accuser(s) in a court of law. However, courts allow for the introduction of hearsay (out of court) statements under certain circumstances. This creates occasional tension between the sacred Sixth Amendment confrontation right and the introduction of out of court statements from witnesses who may not testify or be cross-examined.

The U.S. Supreme Court has attempted to balance this in Crawford, holding that testimonial hearsay cannot be introduced unless the defendant has the opportunity to cross-examine the declarant. Testimonial hearsay statements are made with the primary purpose of assisting an investigation, which may lay the groundwork for a future prosecution.

By contrast, nontestimonial hearsay statements are admissible in court so long as they fall under a recognized hearsay exception – or, in the case of child hearsay, satisfy the criteria of 90.803(23) and bear sufficient indicia of reliability. The breadth of Florida’s child hearsay law has been scrutinized, but remains subject to Crawford.

Courts typically require that cross-examination (confrontation) of witnesses occurs in court, face to face and in-person. However, there may be certain exceptions to this rule – particularly in cases involving a child testifying regarding abuse, provided that the court makes a case-specific finding that traditional face-to-face confrontation would be too traumatic (Maryland v. Craig). 

The admission of child hearsay or other out of court testimony can change the outcome of a case, so it is critical to find experienced and trusted legal representation as soon as possible if someone is charged with an offense involving a child victim. 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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