Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Category: Firm News

The Florida Legislature has balanced the need for reliable out of court statements from child abuse victims and the rights of the accused. Florida Evidence Rule 90.803(23) sets out the foundational requirement that must be laid in order for these hearsay statements to be admitted into evidence. The rule is broken down into three sections.

Section (a) describes the basic threshold requirements that must be present before the Courts will even consider the introduction of this testimony. Unless there are some indicators of untrustworthiness a statement from a child with a physical, mental, emotional, or developmental age of 11 or less describing an act child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. Subsection 1 sets out the procedural requirements that the Court must adhere to in order for the statement(s) to be admitted into evidence. The Court must conduct a hearing outside the presence of the jury to determine whether the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making that determination the Court can consider the following:

a. Mental and physical age of the child
b. Maturity of the child
c. The nature and duration of the abuse or offense
d. Relationship of the child to the offender
e. The reliability of the assertion
f. The reliability of the child victim
g. Any other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the Court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to 90.804(1).

The rule requires an additional finding of corroborative evidence of the abuse only if the child is unavailable. The rule requires other "corroborative evidence" where the child is unavailable to ensure that no defendant is convicted solely on hearsay evidence. If the child is testifying the court does not need to determine the additional factor of corroborative evidence. However, it is important to appreciate what qualifies as "corroborative evidence" in any child abuse/sex crimes charge because if there is corroborative evidence of the child's allegation it could determine two very critical issues at trial:

1) Will the child hearsay statements of an unavailable child be admitted at trial? And

2) Will there be enough evidence for the State to get passed the defense's motion for Judgment of Acquittal?

Typically, it is impossible to prove someone's guilt based solely on a prior inconsistent statement. Prior inconsistent statements by themselves are not substantive evidence. It takes substantive evidence for a jury to rule beyond all reasonable doubt that a defendant is guilty. Corroborative evidence becomes a critical issue in sexual abuse cases because impeachment standing alone is not sufficient evidence to convict someone. The Florida Supreme Court and the Florida Appellate Courts have addressed this issue in a number of cases. It has been determined that a prior inconsistent statement by a child with additional corroborative evidence could make the statement substantive for evidentiary purposes. This could lead to a lawful conviction in the eyes of our Courts. (See Florida Supreme Court decisions in Baugh, and Beber).

What qualifies as "corroborative evidence"?

1) The defendant's own statement to law enforcement.

2) Physical evidence that a child has been abused

3) Even denials can have inculpatory details that qualify them as "corroborative".

4) Similar fact evidence (William's Rule Evidence).

What doesn't qualify as "corroborative evidence"?

1) The child's own statements can never qualify. (the "other corroborating evidence" within the meaning of the hearsay exception denotes evidence derived from a source other than the child victim's own statements).

2) Statements of future intent (that a person wants to have sexual contact with a child).

3) A counselor's subjective belief in the veracity of a child's hearsay statement.

The other aspects of the rule require the State to notify the Defense within 10 days of trial that a statement which qualifies as a heasay exception pursuant the Child Hearsay Rule will be offered as evidence at trial. The notice must contain the content of the child's statement, the time at which the statement was made, and the circumstances surrounding the statement which indicate its reliability. The Court must make specific findings of fact, on the record under this rule.

If you would like to find out more about "child hearsay" and its impact in court call us at 813-228-7095 or link to Tampa criminal attorney.