by George E. Tragos and Peter A. Sartes
Nothing is more difficult than defending a client who is accused of a crime that requires no substantive evidence for conviction. An allegation is made by a four-year-old child to her mother regarding inappropriate contact with her father: “I touched Daddy’s pee pee and orange juice came out.” When her mother asks the child if she is serious, the child responds that she was attempting to make her mommy laugh. Subsequently, the child was examined for evidence of sexual abuse, but medical results indicated that there were no signs of trauma or any indications consistent with sexual abuse. Furthermore, the child was interviewed by law enforcement officers, social workers, and psychologists and denied any inappropriate conduct by the father until a certain lone detective claimed to have interviewed her and obtained an unrecorded admission. The child was later deposed and denied any abuse. Finally, the child was questioned during two separate court hearings and again denied any abuse, all along maintaining her original recitation that she had made the statement to her mother in order to make her laugh.
What began two years ago as a capital sexual battery case with all fingers pointing to the father as the perpetrator has transformed into a case where the alleged victim will testify on behalf of the defense.
As most criminal trial practitioners know, the rules of evidence (or more specifically the voluminous exceptions to those rules) are not always clearly defined. One such example is §90.803 (23) statements of child victims, more affectionately known as the child hearsay rule. This article is intended to provide a basic understanding of what’s in, and what’s not, based on Florida case law as well as some pointers which are learned through experience to aid practitioners who find themselves combating cases relying on child hearsay.
The hearsay exception; statements of child victims is codified in F.S. §90.803(23) and states:
(a) Unless the source of information or the method of circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with the physical, mental, emotional or developmental age 11 or less describing any act of 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. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making of the determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and 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§90.803 (1).
(b.) In a criminal action, the defendant shall be notified no later than ten days before trial a statement which qualifies as a hearsay exception pursuant to this subsection will be offered as evidence at trial. The notice shall include a written statement of the contents of the child’s statement, the time in which the statement was made, the circumstances surrounding the statement which indicates its reliability, and such other particulars as necessary to provide full disclosure of the statement.
(c.) The court shall make specific findings of fact, on the record, as to the basis for its ruling under this subsection.
The requirements and limitations for the use of the child hearsay exception have been considered by courts throughout Florida. The keystone case in this area of law is Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988). In the Jaggers case, the Second DCA reversed the appellant’s conviction of abuse of his daughter and stepdaughter, concluding that the out-of-court statements made by those victims were not sufficiently reliable to warrant admissions into evidence and thus could not be used as substantive evidence of the guilt.
The court also clarified many questionable positions regarding the child hearsay exception. Among the most notable are the following:
1) Evidence of prior unsworn, inconsistent statements, not subject to cross examination at the time they are made, cannot constitute the sole evidence upon which to sustain appellant’s conviction. citing State v. Moore, 485 So. 2d 1279 (Fla. 1986). Jaggers, 536 So. 2d at 324.
2) The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict applies to F.S. §90.803(23) evidence. Once exculpatory statements are introduced, inculpatory prior unsworn statements become inconsistent statements and should not be allowed into evidence. Id. at 325.
3) Out-of-court prior inconsistent statements may only be introduced after the trial judge makes specific findings of fact, on the record, to support a finding of reliability. Citing §90.803(23)(a)1 and (c). Id. at 325.
4) Out-of-court statements by children can only be introduced if the child testifies or is unavailable as a witness, and that videotaped depositions, though held to be equivalent to testimony for purposes of §90.803 (23) by the Second DCA in Glending v. State, 503 So. 2d 335 (Fla. 2d DCA 1987), should be considered with reservation in cases where the circumstances mirror Jaggers. Jaggers, 536 So. 2d at 325.
5) The time of the out-of-court statement relative to the time of the incident charged and the circumstances of the statement are crucial to a determination of reliability. Citing Perez v. State, 536 So. 2d 206 (Fla. 1988). Jaggers, 536 So. 2d at 324.
6) Evidence of prior inconsistent statements of the testifying witness are not admissible except when offered to contradict and to impeach the direct testimony offered at trial. Id. at 324.
Section 90.803(23) creates a limited exception to the hearsay rule for reliable statements of children which describes an act of abuse upon, by, with, or in the presence of the declarant child victim. C. Ehrhardt, Florida Evidence 803.23 (2003 edition), 856. Only statements that describe acts of child abuse, sexual abuse, or other offense involving sexual contact are included under the exception. Id. at 857. Furthermore, §90.803(23) has been construed to limit the exception to the out-of-court statements to those statements made by the child victim. State v. Campbell, 664 So. 2d 1085, 1085–87 (Fla. 5th DCA 1995). Specifically excluded from evidence are child hearsay statements that describe abuse on a person other than the declarant child. State v. Dupree, 656 So. 2d 430 (Fla. 1995).
The Florida Supreme Court has ruled that a child victim’s hearsay statement, which qualifies as an exception under §90.803(23), is admissible in evidence even when the child is able to testify fully at trial, notwithstanding being characterized as a prior consistent statement. Thus, both the child and a person to whom the child made the hearsay declaration may testify. Pardo v. State, 596 So. 2d 665 (Fla. 1992). Furthermore, the Fifth DCA in its decision in Kopko v. State, 577 So. 2d 956 (Fla. 5th DCA 1991), found that §90.803(23) “suggest[s] at least one repetition” of child hearsay is permissible “if the child testifies.” The court further found that repetitious child hearsay from multiple witnesses is unfair to a defendant and contravenes the long-standing rule prohibiting the admission of prior consistent statements to bolster a victim’s in-court testimony. The Kopko court therefore determined that child hearsay comes in under the statute only in a very limited circumstance. See also Perry v. State, 593 So. 2d 620 (Fla. 2d DCA 1992).
In order for child hearsay to be admissible the source from which the information is reported must indicate trustworthiness. Jaggers, 536 So. 2d at 325. The initial clause of §90.803(23) provides if “the source of information or the method or circumstances by which the statement is reported indicate a lack of trustworthiness,” the exception will not be recognized. This restatement of the reliability requirement was specifically included by the Senate committee to ensure careful examination of circumstances involving familial discord. C. Ehrhardt, Florida Evidence, at 860. Additionally, in State v. Townsend, 635 So. 2d 949 (Fla. 1984), the Florida Supreme Court held that in determining the reliability of the statement in question, the trial court may also consider the possibility of improper influence over the child as well as any other indicators of “trustworthiness.”
In cases where the child’s reliability is at issue, the trial judge is not required to examine the child before making the determination that the child’s out-of-court statements are reliable, although it has been held that it is a better practice that the child be examined in the court’s presence. Perez, 536 So. 2d at 211. In addition to the factors listed in §90.803(23)(a)(1),the Townsend case established a nonexclusive list for the trial court to consider in evaluating the reliability of the child’s out-of-court statement under the statute including 1) a consideration of the statement spontaneity; 2) whether the statement was made at the first available opportunity following the alleged incident; 3) whether the statement was elicited in response to a question from adults; 4) the mental state of the child when the abuse was reported; 5) whether the statement consisted of a childlike description of the act; and 6) whether the child used terminology unexpected of a child of similar age. Townsend, 635 So. 2d at 957.
Experience has shown that judges are willing, on rare occasions, to exclude child hearsay. In one order a trial judge methodically considered each element of the Townsend list for each potential hearsay witness. Even though on their face the witnesses seemed as if their testimony fit the rule, after careful and meticulous consideration by the trial judge, one witness was found to be unreliable based on inconsistences in her story, and in another order the testimony of three potential hearsay witnesses was found to be outside the scope of the child hearsay rule.
It is important to note that the child hearsay rule does not supersede the other exceptions to the hearsay rule. It is not intended to open the floodgates for the state to the detriment of the defendant. It is a limited exception for a specific purpose. In addition, in circumstances similar to our recent case, which are more common than many of us would expect, the child hearsay rule can become the tool that exonerates the client.
The U.S. Supreme Court, in its recent decision in Crawford v. Washington, 124 S. Ct. 1354 (2004), opined that the protections set forth in the confrontation clause of the Sixth Amendment cannot be overlooked. The Supreme Court indicated that permitting testimony based on the amorphous concept of reliability without taking into account the constitutional requirement of confrontation that the statement be subject to cross-examination was erroneous. The Court further indicated that “even if the right to confrontation under the Sixth Amendment is not solely concerned with testimonial hearsay, that is the primary object, and interrogations by law enforcement officers fall squarely within that class.” Id. at 1371. Thus, the portion of §90.803(23) that indicates that hearsay is admissible if the child is unavailable to testify must be construed to require that the child has been subject to what the U.S. Supreme Court indicates was the first indicator of reliability: cross-examination.
Determining the admissibility of child hearsay is a task that must be approached with systematic and methodical consideration. Practitioners faced with the possibility of child hearsay must prepare for the cross-examination of the child declarant, the hearsay declarant, and the waves of state agents including social workers, Department of Children and Families (DCF) investigators, law enforcement officers, and guardians (both familial and court-appointed) that will inevitably be called to offer testimony as to what the child said, or may have said. As practitioners, knowing what to ask for will significantly affect the impact of the cross-examination of prosecution witnesses. It will surprise you to discover the volume of paper generated during a child abuse investigation. Among the most valuable documents were the chronologies or “cronos” that the Child Protective Investigators (CPI) maintain as part of their investigation. These “cronos” enumerate all the contact that the investigator has with law enforcement, the alleged victim, the suspects, and family members, as well as their personal observations relative to the investigation. Experience has indicated that these “cronos” are the greatest source of information for cross-examination because these “cronos” are made by and for the benefit of the CPI officer and are not normally turned over during discovery. An astute practitioner can detect tell-tale signs of the strength of the investigation as well as the definite chronology of the investigation that may be different from the chronology that witnesses will relate. In addition, if there are medical, psychological, or other professionals who examined the alleged victim, then the summary of the examination can be an excellent tool in determining exactly what the findings are. These documents are normally confidential under F.S. §39.202(5), although the court can issue an order waiving the statute, if the summaries are relevant and material to the case. The practitioner should move the court to subpoena the complete record of every government agency involved in the case, and look for discrepancies between reports and agencies that may be ripe for cross examination.
Another important lesson from experience defending against potential testimony from child hearsay is to pay close attention to the procedural details enumerated within the statute. The state has the burden to provide a notice to the defendant that clearly delineates that the prosecution intends to offer a statement under §90.803(23) at trial. Professor Ehrhardt makes the notice analogous to the notice necessary when the prosecution intends to offer Williams Rule testimony under §90.404(2)(b) at trial. C. Ehrhardt, Florida Evidence, at 865. The written notice must include 1) the content of the child’s statement; 2) the time at which the statement was made; 3) the circumstances surrounding the statement which indicate its reliability; and 4) any such other particulars as necessary to provide full disclosure of the statement. F.S. §90.803 (23) (2003). The statute also indicates that the defendant shall be notified no later than 10 days before the trial (so watch out for those Friday 6:00 p.m. faxes to your office). Fuller v. State, 540 SO. 2d 182 (Fla. 5th DCA 1989) (notice defective); Distefano v. State, 526 So. 2d 110 (Fla 1st DCA 1988) (notice contained no indication of trustworthiness) (defendant was entitled to Richardson-type hearing when state failed to comply with the notice statute).
When you receive the notice, study it closely, identify who will be testifying and what exactly they heard. Be cautious of law enforcement testimony; be sure that they are testifying to what the child told them as opposed to what the child told someone else. Remember, it is the child hearsay rule, not the child double hearsay rule. For example the rule states that the hearsay witness can testify to the declarant child’s statement of abuse. In a recent case, the witness investigator was presented to testify to the child’s answer to the question, “Did you tell your mommy that . . . .?” This testimony was correctly excluded by the court. Also look specifically at what the child said. The rule is intended for the recitation of a child declarant’s statement of abuse. Be sure that it is not the child’s response to law enforcement’s question of, “Did someone touch you?”Again, it is the child’s statement of abuse, not the hearsay witness’s interpretation of the child’s answer to a broad question. See §90.801 ( Hearsay), and §90.805 (Hearsay within Hearsay) generally. Be conscious of prior inconsistent statements, whether they be from the child declarant or from the hearsay witness. See §90.801(7) (Exclusions from Hearsay--Prior inconsistent Statements Under Oath) and §90.614 (Prior Statements of Witnesses) generally.
Finally, the most important point is: Make them prove it! When you are faced with a child hearsay witness, or for that fact anything that requires a judicial finding, ask for a hearing, do the research, know your witness, make sure you have all the discovery for that witness, plan out your questions and, most importantly, pay close attention to the answers. Don’t be afraid to delve into the witness in order to attack his or her credibility and trustworthiness, and when it’s over, order the transcript--you never know what will change between the hearing and the trial.
In conclusion, the case law cited is not exhaustive, it is merely the foundation of the law, and our suggestions are just that--suggestions. Every case is different, each with its own facts, circumstances, and quirky details. It is up to the individual practitioner to evaluate his or her client’s case and to prepare a defense strategy. Understanding the limitations of the statute, the facts of your case, and the distinctions drawn in the existing case law will inevitably mean the difference between what’s in and what’s not.
George E. Tragos received his B.A. and J.D. from Florida State University. He has served as chief of the felony division for the State Attorney’s Office, chief of the criminal division for the U.S. Attorney’s Office, Middle District of Florida, and on the President’s Organized Crime Drug Enforcement Task Force. He is past president of the Florida Association of Criminal Defense Lawyers, past chair of the Criminal Law Section, and currently serves on the Criminal Rules Committee. Mr. Tragos is a board certified criminal trial lawyer.
Peter A. Sartes is an associate of the Law Offices of George E. Tragos. He received his B.A., M.B.A., and J.D. from The University of Toledo, in Toledo, Ohio, and also attended Stetson Collage of Law. Mr. Sartes was formerly with the Lucas County Public Defender’s Office in Toledo. Mr. Sartes is currently a member of the Traffic Court Rules Committee, the Board of Directors of the Clearwater Bar Association, Young Lawyers Division, and chair of the Clearwater Bar Association Technology Committee.
This column is submitted on behalf of the Criminal Law Section, Paul H. Zachs, chair, and Georgina Jimenez-Orosa, editor.