What Is the Child Hearsay Rule in Florida?

Florida’s child hearsay rule, set out in Section 90.803(23) of the Florida Evidence Code, lets a court admit an out-of-court statement by a child describing abuse, neglect, or a sexual offense when the judge first finds the statement reliable and the other conditions in the statute are met. It applies when the child had a physical, mental, emotional, or developmental age of 17 or younger when the statement was made, and it works in both criminal prosecutions and civil dependency cases.

What Statements the Rule Covers

The exception reaches statements that describe child abuse, neglect, sexual abuse, aggravated child abuse, or any offense involving unlawful sexual conduct performed in the presence of, with, by, or on the child.¹ The categories are specific. A child’s statement about something outside this list of harms does not come in through 90.803(23).

There is a threshold condition that gets overlooked. The rule applies only to statements that are “not otherwise admissible.” If a child’s words already qualify under another exception, such as an excited utterance or a statement for medical treatment, the prosecution is expected to use that route. Section 90.803(23) is the fallback for statements that could not come in any other way.

The exception operates in civil and criminal proceedings alike, which matters because child abuse cases often run on two tracks at the same time: a criminal case and a dependency case in family court.¹ The same statement can be offered in both.

How the Judge Decides a Statement Is Reliable

Before the jury hears anything, the judge must hold a hearing outside the jury’s presence and make a specific finding that the statement carries sufficient safeguards of reliability. The findings must appear on the record.¹

The statute lists factors the court may weigh:

The child’s mental and physical age, which may not match chronological age.
The nature and duration of the alleged abuse.
The child’s relationship to the offender.
The reliability of the statement itself, including whether the language and detail fit a child of that age.
The reliability of the child as a reporter.

The court may also consider “any other factor deemed appropriate.”¹ In practice, that often means looking at how soon after the event the child spoke, whether the questioning was leading, and whether anyone had a motive to coach.

Constitutional law sits on top of the statute. In Idaho v. Wright, the U.S. Supreme Court held that a child’s hearsay admitted against a criminal defendant must carry “particularized guarantees of trustworthiness” strong enough that cross-examination would add little, and the analysis has to focus on the circumstances when the statement was made rather than on later corroborating evidence.²

Does the Child Have to Testify?

The rule gives the prosecution two paths. The simpler one: the child testifies at trial, and the hearsay statement supplements that testimony. The harder one: the child is declared unavailable, in which case other corroborating evidence of the abuse must also exist.¹

Unavailability under Section 90.803(23) includes a specific finding that testifying would create a “substantial likelihood of severe emotional or mental harm” to the child. The rule also pulls in the general unavailability grounds from Section 90.804(1), which cover a privilege ruling, refusal to testify despite a court order, significant memory loss, illness or infirmity, or the inability to locate the child after reasonable efforts.³

The corroboration requirement is a real check. Without it, a case could rest on a single out-of-court statement with no cross-examination and no supporting proof. Corroboration can take the form of physical evidence, medical findings, or testimony from witnesses who observed signs of abuse.

The 10-Day Notice to the Defense

In a criminal case, the prosecution must give the defendant written notice at least 10 days before trial that it intends to introduce a child’s statement under this exception.¹ The notice has to include:

The content of the statement.
When it was made.
The circumstances that indicate it is reliable.
Any other details needed for full disclosure.

Ten days gives the defense time to challenge the statement in the pretrial reliability hearing. A late or incomplete notice that fails to lay out the reliability factors can be grounds to exclude the statement regardless of what it says. The statute specifies this notice requirement for criminal actions; dependency and other civil proceedings follow their own procedural rules.

Closed-Circuit Testimony as a Middle Path

When the child can testify but facing the defendant in open court would cause real harm, Section 92.54 allows the court to take the testimony by closed-circuit television or audio-video technology. The finding required is a substantial likelihood that the child would suffer at least moderate emotional or mental harm from testifying in the defendant’s physical presence. The option is available for witnesses and victims under 18 or those with an intellectual disability.⁴

The procedure protects the defendant in defined ways. The defendant watches from the courtroom but is not seen or heard by the child, and defense counsel keeps direct communication with the client during cross. Only the judge, the attorneys, the camera operators, an interpreter when needed, and one court-approved support person may be in the room with the child.⁴

Because the child still testifies and is still cross-examined, this route sidesteps most of the Confrontation Clause fight that comes with pure hearsay. For prosecutors, it is often the preferred option when the child can describe what happened but would be traumatized by sitting in the same room as the accused.

The Confrontation Clause Limits in Criminal Cases

The Sixth Amendment gives criminal defendants the right to confront the witnesses against them. When a child’s out-of-court statement comes in through the hearsay exception and the child never testifies, that right is in play. Under Crawford v. Washington, a “testimonial” statement by an unavailable witness cannot be admitted unless the defendant had a prior chance to cross-examine the person who made it. Testimonial statements are those made in circumstances where a reasonable person would expect them to be used in a prosecution.

For a child’s statement, the question usually turns on who was asking and why. A child telling a parent at bedtime what happened is almost certainly not testimonial. A child answering a police officer’s questions during a formal investigation likely is. The gray area involves teachers, counselors, and doctors. In Ohio v. Clark, the U.S. Supreme Court held that a child’s statements to a preschool teacher were not testimonial, even though the teacher was a mandatory reporter, because the primary purpose of the conversation was to protect the child rather than to build a criminal case.⁵

One boundary worth stating. The Confrontation Clause applies only in criminal prosecutions. In civil dependency proceedings, a child’s statement has to meet the evidence code’s reliability requirements but does not raise Sixth Amendment questions. That is one reason the same statement can come in during a dependency case and still face a successful challenge in the parallel criminal case.

Other Hearsay Exceptions That Reach a Child’s Statement

Section 90.803(23) is not the only way a child’s words reach the jury. Standard hearsay exceptions apply to children too, and they often involve fewer procedural hoops.

Excited Utterance

Section 90.803(2) admits a statement about a startling event when the speaker was still under the stress of excitement from it.⁶ A child who runs to a neighbor’s house in tears and immediately describes being hurt usually fits. Courts weigh the time gap, the child’s emotional state, and whether the words were spontaneous or prompted. With young children, the window is sometimes longer because it can take time for the child to reach a trusted adult.

Statements for Medical Diagnosis or Treatment

Section 90.803(4) covers statements made to medical professionals for the purpose of getting diagnosis or treatment.⁶ Florida’s version also covers statements a parent or legal guardian makes on behalf of a child who cannot speak for themselves. In abuse cases, this exception can let a doctor or nurse testify about what the child said during an exam, including who caused an injury when that information mattered to treatment. Defense attorneys often push back by arguing that the examination was really forensic rather than medical, especially when the child was taken to a specialized child advocacy center instead of a standard clinic.

1
Florida Senate. Florida Code 90.803 – Hearsay Exceptions Availability of Declarant Immaterial
2
Justia U.S. Supreme Court Center. Idaho v. Wright, 497 U.S. 805 (1990)
3
Online Sunshine. Florida Statutes 90.804 – Hearsay Exceptions Declarant Unavailable
4
Online Sunshine. Florida Statutes 92.54 – Use of Closed-Circuit Television and Audio-Video Communication Technology
5
CWLA. Supreme Court Upholds Child Abuse Evidence Via Mandatory Reporter
6
Online Sunshine. Florida Statutes 90.803 – Hearsay Exceptions Availability of Declarant Immaterial