by Amy L. Cosentino
A nine-year-old child goes to her dance class and mentions to her ballet teacher that she “gives her daddy a towel after he takes a shower.” The teacher finds this odd and mentions it to the child’s mother. The mother questions the child about it on the way home from class, asking the child what the father is wearing when she gets him the towel. According to the mother, the child becomes embarrassed, covers her face with her hair, and says that he is naked. The child then breaks down, shakes, and screams. The child ultimately discloses to her mother that 1) her father told her “this is their secret” and she should not tell anyone; 2) her father said, since he is a police officer and that he “is the law,” he will take things away from her if she tells their secret; and 3) the father made her scratch his penis, feet, and buttocks. The mother calls the child’s therapist and reports what the child told her. The Department of Children and Families (DCF) consequently investigates and the child alleges sexual abuse to the investigator while being questioned out of eye and earshot of the mother. DCF recommends the mother file for a domestic violence injunction, as the child is scheduled to be with the father in a few days. An ex parte temporary injunction is subsequently entered and a return hearing is scheduled in the immediate future.
There is no physical evidence of the alleged abuse. When interviewed by an investigator from the Department of Health Children’s Medical Services Child Protection Team (CPT), the child reports that her father would call her into his bedroom where he would be lying naked on the bed. The child states she would often cover her eyes because “it was nasty” and she did not want to look. The father would make the child scratch and rub his penis, his feet, his “butt,” and then his stomach. The child also describes the appearance of her father’s naked body in detail. CPT notes that the child is able to provide clear and consistent details of the abuse.
The mother then has the child evaluated by a psychologist specializing in child sexual abuse. The psychologist interviews the child, has the child draw the alleged abuse, and observes the child playing with anatomically correct dolls while talking about the events in question. The psychologist ultimately concludes the child is exhibiting signs of sexual abuse and is willing to testify to that at future hearings.
The child’s mother has requested that the child not testify at any hearings for fear of the potentially irreversible psychological damage the child may suffer. The mother is seeking to have the child’s out-of-court statements admitted as evidence at the domestic violence return hearing that the father has committed sexual abuse against the child.
Admission of the out-of-court statements made by a child with a physical, mental, or developmental age of 11 or younger describing, among other things, an act of sexual abuse against the child are governed by F.S. §90.803(23),1 which is an exception to Florida’s evidentiary statute governing hearsay.2 Section 90.803(23) provides for circumstances in which otherwise inadmissible out-of-court statements made by an alleged child victim3 may be admitted into evidence. This statute allows such statements to be used as substantive evidence of the accused’s4 guilt or of the acts of abuse at an evidentiary hearing provided that 1) the trial court finds the statements are reliable, and 2) either the child testifies at trial, or if the child is deemed unavailable, that the court finds “there is other corroborative evidence of the abuse or offense.”5
This article addresses how Florida courts have treated the admissibility of child victim hearsay statements under F.S. §90.803(23), specifically exploring and analyzing each element of this statute in turn in light of the introductory fact pattern.
When the Child’s Out-of-court Statements are Reliable and Trustworthy
Before testimony of a child’s out-of-court statements can be admitted, the court is required to find that the time, content, and circumstances of the statements provide sufficient safeguards of reliability.6 Section 90.803(23) sets forth some of the criteria that a trial court should use in making this reliability determination, which includes the mental age, physical age, and maturity of the child; the nature and duration of the abuse or offense; the relationship of the child to the offender; and the reliability of the victim.7 However, the statute makes clear that this list is not exhaustive, and a court can consider any other factor in making its determination.8 As noted by the court in State v. Townsend, 635 So. 2d 949 (Fla. 1994), additional factors that may be considered when making a determination as to reliability of the child victim out-of-court statement(s) include, but are not limited to:
a consideration of the statement’s spontaneity; whether the statement was made at the first available opportunity following the alleged incident; whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.9
In Zmijewski v. B’Nai Torah Congregation of Boca Raton, Inc., 639 So. 2d 1022 (Fla. 4th DCA 1994), the Fourth District Court of Appeal summarized all of the factors of §90.803(23) by stating “a court is to use the totality of the circumstances in determining reliability” of a child victim’s out-of-court statement.10 The court must make specific findings of reliability of the hearsay statements, as prescribed by §90.803(23), as failure to do so “ignores the clear direction of the statute.”11
Considering the introductory fact pattern, a court would likely find the totality of the circumstances replete with signs that the child’s hearsay statements are reliable. Some of the characteristics that lend themselves to a finding of reliability include the spontaneity of the statements,12 the child-like description of the events,13 the child’s emotional reaction to the questions,14 and the fact that the child reported the incident to numerous individuals.15 Once there is a finding of reliability, the court must then turn its attention to whether the child is to testify at trial or be found to be “unavailable.”
A child testifying at an evidentiary hearing addresses most concerns raised by the use of the child’s hearsay statements, including concerns raised by the accused’s right to confront the witnesses against him or her.16 This article, however, focuses on circumstances similar to those in the introductory fact pattern — when the child victim is unwilling or otherwise unable to testify.
Unavailability of the Child Victim
• Test for Unavailability Under §90.803(23) — F.S. §90.803(23)(a)(2)(b) permits the admission of a child victim’s hearsay statements if the child is deemed unavailable and there is other corroborating evidence of the abuse or offense. This is a two-part test. Focusing on the first part, a child victim is unavailable if the court finds that, based on expert testimony, a substantial likelihood exists that the child will suffer severe emotional or mental harm if the child testifies or if the child falls within the definitions for unavailability set forth in F.S. §90.804(1).17
• Unavailability due to Substantial Likelihood of Severe Emotional or Mental Harm — The first cause of unavailability for a child victim listed in §90.803(23) is if, based on expert testimony, there is a showing that a substantial likelihood exists that testifying will cause the child severe emotional or mental harm. The Florida Supreme Court has previously upheld a finding of substantial likelihood of harm when a psychological expert testified, among other things, that the child victim was depressed and subject to “debilitating anxiety and very damaged self-esteem,” had unstable emotions, expressed fears at participating in trial, and reported fantasizing about her loved ones’ deaths — including her own and her father’s (the accused) — when reminded about the case.18 Likewise, the mother and guardian ad litem testified as to their concerns about the child’s psychological well-being if she were required to testify in the father’s presence.19 A finding that a substantial likelihood of severe emotional or mental harm exists will be upheld on appeal absent a showing of an abuse of discretion.20
• Unavailability Under F.S. §90.804 — The second cause of unavailability is if the child falls within the statutory definition of “unavailable” as set forth in §90.804(1). Under this section, a witness is unavailable if, among other things, the witness has suffered a lack of memory of the subject matter of the statement in which the memory loss destroys the witness’ efficacy at trial.21 One concern unique to child victims is the effect of the passage of time on the victim’s memory. An eight-year-old child victim will likely have difficulty testifying as to acts or events that occurred when he or she was two years old.22 Since children often have difficulty retaining details for long periods of time, videotaping their testimony to preserve it for future civil or criminal proceedings becomes paramount.23
Another cause of unavailability for a child victim under §90.804(1) is a child’s inability to take an oath.24 The Florida Supreme Court has previously held that the court may receive expert testimony regarding a child’s ability to understand the difference between telling the truth and telling a lie, when determining if the child is competent to testify at trial.25 However, the expert cannot comment as to the truthfulness of the actual hearsay statements in question.26 The trial court has broad discretion to determine whether a child is competent to testify as a witness, but the decision is one that must be announced on the record.27 The trial court’s decision must be supported by findings of fact.28 Ultimately, it is up to the court to decide the child’s competency to testify. However, when there is a finding of incompetency to testify on this basis, the court must take care in considering the child’s ability to tell the truth when determining the reliability of the child’s out-of-court statements prior to their admission.29
• Once a Determination of Unavailability Has Been Made — Returning to the introductory fact pattern, the mother has simply requested the child not be required to testify due to her own concerns that the child’s testimony would cause irreparable harm. To be successful in obtaining a finding of unavailability for that reason, the mother must obtain expert testimony as to that likelihood. There will not be a long passage of time between the acts and the domestic violence return hearing;30 therefore, the child’s ability to remember the details would likely not be an issue. However, the court could find the child unavailable if there is a finding that the child is unable to take an oath due to her age. If the court determines the child is unavailable due to one of the aforementioned causes, the court must turn to the second part of the two-part test of §90.803(23)(a)(2)(b) and find other corroborative evidence of the alleged abuse exists before the child victim’s out-of-court statements are admissible under §90.803(23).
Existence of Other Corroborating Evidence of the Alleged Sexual Abuse
• Definition of Other Corroborating Evidence Under §90.803(23) — The first step in determining whether corroborating evidence exists is to consider the definition of the phrase “corroborating evidence.” Corroborating evidence has been defined as “evidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point.”31 Therefore, when §90.803(23) requires other corroborative evidence of the alleged abuse, the court must find there is “evidence other than the alleged child victim’s out-of-court statements which tends to confirm that the charged offense occurred.”32 In Delacruz v. State, 734 So. 2d 1116 (Fla. 1st DCA 1999), the First District Court of Appeal further explained corroborative evidence as:
By way of example, and not by limitation, corroborative evidence may include any of the following: testimony from an eyewitness, other than the unavailable child-victim, whose statement is offered into evidence, that the offense occurred; statements of other children who were present when the act was committed against the victim; medical or scientific evidence indicating that the child was sexually assaulted; expert opinion evidence that the child-victim experienced post-traumatic stress consistent with the perpetration of offense described by the child; evidence of other similar offenses committed by the defendant; the defendant’s confession to the crime; or other independent evidence, including competent and relevant expert opinion testimony, tending to establish the commission of the act described in the child’s statement.33
As summarized in R.U. v. Dept. of Children & Fam., 777 So. 2d 1153, 1159 (Fla. 4th DCA 2001), types of proper corroboration of a child victim’s hearsay statements include physical evidence of the alleged abuse, statements from the accused, or other such evidence from a source other than the child victim as “the ‘common thread’ of the case law construing the corroboration requirement of section 90.803(23) is the corroborative evidence ‘tends to confirm the unlawful act, i.e., the abuse or offense.’”
• Physical Evidence of the Alleged Abuse — One type of other corroborative evidence is physical evidence of the alleged abuse. Often, there will be no physical or medical evidence in cases of sexual abuse because the perpetrator has caressed or fondled the child.34 Lack of physical evidence does not negate the admissibility of the child’s hearsay statements — the party wishing to introduce the statements would simply need to look for other types of corroborative evidence.
• Statements Made by the Accused — Sometimes statements from the accused will corroborate the allegations of sexual abuse.35 For example, in Reyner v. State, 745 So. 2d 1071 (Fla. 1st DCA 1999), the defendant admitted to taking a nap with the child and sharing a bed with her. The court allowed these statements made to the police to be used to corroborate details in the child’s hearsay statements.36
• Medical Testimony Regarding the Alleged Abuse — Medical testimony can also serve to corroborate a child’s out-of-court statements. One example of the use of medical testimony as corroborating evidence of a child victim’s hearsay statements is in Zmijewski. When the child’s mother in Zmijewski picked the child up from school one day, she found him disheveled and crying, with a white substance on his mouth, cheek, and shirt.37 One month later, the child told his mother that the school janitor had sexually molested him. Among other things, the parents relied upon the affidavits of two medical experts to establish the abuse — one from a specialist in child sexual abuse who concluded that, at a minimum, the child’s penis and anus had been fondled, and a second from a psychologist who concluded that the child presented the behaviors of a child who had experienced sexual abuse.38 The trial court excluded the affidavits from evidence. On appeal, the child’s parents contended that the affidavits should have been admitted to corroborate the child’s out-of-court statements.39 The Fourth District Court of Appeal agreed, holding the affidavits satisfied the additional requirement of corroboration in pertinent part because the doctors stated their professional opinions that the child was exhibiting signs of having been sexually abused.40
Not all medical testimony can serve to corroborate a child’s out-of-court statements. For example, the Fourth District Court of Appeal in Gould v. State, 745 So. 2d 354 (Fla. 4th DCA 1999), held the expert medical testimony could not serve as corroborative evidence of the child victim’s hearsay statements. The defendant in Gould appealed his conviction of sexual battery upon his stepson, who was younger than 12 years old.41 At Gould’s trial, the state was allowed to introduce the opinion testimony of a doctor that suggested the child victim exhibited symptoms consistent with a child who had been sexually abused, also known as “profile evidence.”42 The Fourth District found the testimony was erroneously admitted as substantive evidence of the defendant’s guilt but did find the error to be harmless based on other properly admitted evidence.43 Likewise, in Hadden v. State, 690 So. 2d 573 (Fla. 1997), the court likened testimony that a child exhibited symptoms consistent with “child sexual abuse accommodation syndrome” to profile evidence, and held that the evidence was inadmissible as evidence of the accused’s guilt at trial under the Frye standard.44
It could be argued that Gould and Hadden contradict Zmijewski; however, Gould and Hadden are distinguishable from Zmijewski on a number of grounds. First, Gould and Hadden were not civil matters, but criminal cases and, therefore, necessitated preserving the defendants’ rights under the confrontation clause.45 Second, the medical testimony in Gould and Hadden was being utilized as substantive evidence of the defendants’ guilt.46 Using the corroborative evidence to determine the admissibility of the child victim’s hearsay statements is entirely different than using the corroborative evidence as substantive evidence of the accused’s guilt.
Also, a distinguishing characteristic of admissible and inadmissible medical testimony in corroborating a child victim’s hearsay statements is medical opinion versus diagnosis. In Oliver v. State, 977 So. 2d 673 (Fla. 5th DCA 2008), an expert in child sexual abuse, child psychology, and neuropsychology testified for the prosecution that, although there was “no single post sexual abuse syndrome” and “no way to look at a child and say this child’s been sexually abused,” there were some typical behaviors, which he specifically outlined in his testimony at trial.47 On appeal, the defendant, relying on Hadden, argued it was error to permit the expert’s testimony, claiming it was “improper profile evidence.” The Fifth District Court of Appeal disagreed, pointing out that “in this case, Dr. Dikel carefully couched his testimony solely in relation to his professional experience. Thus, it was pure opinion testimony not subject to Frye.”48 The Fifth District used this same reasoning in Harrison v. State, 33 So. 3d 727 (Fla. 1st DCA 2010), holding that an expert may properly aid a jury in a child sexual abuse case in determining the truthfulness of the child victim through discussing patterns of consistency in the victims’ stories and comparing the patterns to the victim’s story in the case at bar.49 When the proffered testimony would not have been “a conclusion on an ultimate issue of fact based solely on [the accused’s] self-serving statements,”50 it was reversible error for the trial court to exclude a defense expert’s opinion testimony.51
• Other Possible Corroborative Evidence — Finally, a court may consider drawings made by the child during his or her interviews with CPT as corroborative evidence. For example, in one South Dakota case a child was able to make an explicit drawing of the accused’s penis and testicles, and identified places the accused had touched her on an anatomical drawing. 52 The drawings were admitted as evidence at trial because they were deemed illustrations and not statements subject to the hearsay rule.53
• Once a Finding of the Existence of Corroborative Evidence Has Been Made — In the introductory fact pattern, the psychologist who evaluated the child has indicated her testimony, based on her experience and observations and not on any diagnoses, will be that the child is likely a victim of sexual abuse. Similar to the expert testimony presented in Oliver and Harrison and unlike the testimony in Hadden and Gould, the expert testimony the petitioner seeks to admit as corroborative evidence is not a conclusion on the ultimate issue of fact as to whether the respondent committed the alleged acts of sexual abuse, but rather opinion testimony by an expert based on that expert’s experience and training. The court would likely find that the testimony can serve as corroborative evidence of the child’s hearsay statements.
If the court in the introductory fact pattern finds the child’s out-of-court statements reliable, the child must testify or be found unavailable and have other corroborative evidence of the alleged abuse prior to the hearsay statements being admissible. Achieving the admission of the hearsay statements does not mean the case has been “won.” Admissible child hearsay statements are just one piece of evidence the court will consider when rendering its judgment.
When approaching any domestic violence case involving children, it is prudent to review the totality of the circumstances and obtain all available facts. It is helpful to review all available evidence and potential evidence from the court’s perspective of needing to weigh the rights of the accused against the rights of the victim. A case then can be presented that both zealously advocates for the client and permits the court to achieve its ultimate goal of administering justice.
1 Fla. Stat. §90.803(23)(a) (2012). Specifically, the provision applies to “an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 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….”
2 Fla. Stat. §90.802 (2012).
3 The terms “child,” “alleged child victim,” and “child victim” will be used interchangeably throughout this article. It is explicitly acknowledged that all accused are presumed innocent until proven guilty.
4 The terms “defendant,” “respondent,” and “accused” will be used interchangeably throughout this article to refer to the alleged perpetrator of the alleged acts of abuse.
5 Delacruz v. State, 734 So. 2d 1116, 1119 (Fla. 1st DCA 1999).
6 Fla. Stat. §90.803(23)(a)(1); see also Feller v. State, 637 So. 2d 911, 916 (Fla. 1994) (holding that the court must determine the reliability of hearsay statements prior to their admission); Weatherford v. State, 561 So. 2d 629, 633 (Fla. 1990) (holding that the court must make specific findings of fact on the record as to the statements’ reliability and articulating why the court overlooked or discounted signs of potential unreliability prior to admitting the statements); Garcia v. State, 659 So. 2d 388, 391 (Fla. 2d DCA 1995) (stating that court must make proper findings of reliability as required by Fla. Stat. §90.803(23) prior to child hearsay statements being admitted).
7 Fla. Stat. §90.803(23)(a)(1).
8 Perez v. State, 536 So. 2d 206, 210 (Fla. 1988) (stating that the list of elements to consider when determining the reliability of the child victim hearsay statement provided in §90.803(23) “is not exhaustive, as demonstrated by that portion of the subsection which provides that the court may also consider ‘any other factor deemed appropriate’…the determination of reliability cannot rest upon any specific calculation”).
9 State v. Townsend, 635 So. 2d 949, 957-958 (Fla. 1994).
10 Zmijewski v. B’Nai Torah Congregation of Boca Raton, Inc., 639 So. 2d 1022, 1025 (Fla. 4th DCA 1994).
11 Barton v. State, 704 So. 2d 569, 575 (Fla. 1997). The court also noted that it implicates a defendant’s right to confrontation.
12 Cf. Townsend, 635 So. 2d at 957 (holding that Fla. Stat. §90.803(23)(a)(1) requires the trial judge to determine the reliability of the child victim’s statements in question by examining factors including the spontaneity of the statements).
13 Cf. id. (holding that a determination of the reliability of a child victim’s hearsay statements includes if the statements consisted of a child-like description of the act); Perez, 536 So. 2d at 211(finding a child victim hearsay statement reliable when they were made at the first available opportunity and consisted of a child-like description of the act).
14 Cf. Distefano v. State, 526 So. 2d 110 (Fla. 1st DCA 1988), overruled on other grounds, State v. Davis, 630 So. 2d 1059 (Fla. 1994) (agreeing that there was sufficient evidence of reliability of the hearsay statements as, among other things, the child was still emotionally affected by the situation when the child reported it to her mother).
15 Cf. Perez, 536 So. 2d at 212 (Shaw, J., concurring) (noting that there was additional indicia of the reliability of the statements as they were made to a number of people and not only to the mother).
16 U.S. Const. amend. VI. Under the Sixth Amendment, the defendant charged with a crime must have an opportunity to cross-examine the witnesses against him or her and this constitutional right exists in both federal and state proceedings. Pointer v. Tex., 380 U.S. 400, 406-407 (1965).
17 Fla. Stat. §90.803(23)(a)(2)(b) (2012); Zmijewski, 639 So. 2d at 1025.
18 State v. Contreras, 979 So. 2d 896, 907 (Fla. 2008).
21 Fla. Stat. §90.804(1)(b) & (c) (2012).
22 See, e.g., Townsend, 635 So. 2d at 960.
24 Townsend, 635 So. 2d at 960 (holding that a finding of incompetency to testify because the child is unable to recognize the duty and obligation to tell the truth is sufficient to render a child victim unavailable for purposes of §90.803(23)(a)(2)).
25 Id. at 958.
27 Barton, 704 So. 2d at 574.
29 Townsend, 635 So. 2d at 956.
30 Fla. Stat. §741.30(5)(c) (2012) (providing an ex parte temporary injunction shall be effective for a fixed period not to exceed 15 days and a full hearing shall be set for a date no later than the expiration of the effective date of the temporary injunction).
31 Jones v. State, 728 So. 2d 788, 791 (Fla. 1st DCA 1999) (citing Black’s Law Dictionary 344 (6th ed. 1990)).
33 Delacruz, 734 So. 2d at 1121 (quoting People v. Bowers, 801 P.2d 511 (Colo. 1990)).
34 Richard A. Gardner, Medical Findings and Child Sexual Abuse, 5 Inst. for Psychol. Therapies (1993), available at http://www.ipt-forensics.com/journal/volume5/j5_1_2.htm.
35 See, e.g., Ghelichkhani v. State, 765 So. 2d 185, 191 (Fla. 4th DCA 2000) (“[E]ven where a defendant expressly denies any improper touching, his statements can provide sufficient ‘other corroborative evidence of the abuse or offense’ where they supply enough inculpating details concerning the alleged sexual offense”); Delacruz, 734 So. 2d at 1122 (holding that the defendant’s statement during his arrest that “he could have accidentally touched the child’s vagina ‘a lot of times’ while playing with her” could be considered “other corroborative evidence of the abuse or offense” to corroborate the child victim’s hearsay statements); Perez, 536 So. 2d at 210 (allowing the defendant’s admission to the police to be used as corroborative evidence).
36 Reyner, 735 So. 2d at 1073.
37 Zmijewski, 639 So. 2d at 1023.
38 Id. The mother also submitted an affidavit recounting her observations of the child’s behavior and white crusty substance from his mouth to his cheek and that her son had disclosed to her that the school janitor had sexually molested him. Id. at 1025-1026. The Zmijewski court held the mother’s affidavit could also be considered corroborating evidence.
39 Id. at 1023-1024.
40 Id. at 1025.
41 Gould v. State, 745 So. 2d 354, 356 (Fla. 4th DCA 1999).
42 Id. at 357.
44 Hadden v. State, 690 So. 2d 573, 579 (Fla. 1997). It was not problematic that the expert’s initial testimony on direct, based upon his experience and training in child sex abuse cases, stated the victim exhibited symptoms consistent with a child who had been sexually abused; however, the expert clarified on cross-examination that his earlier testimony was also based on post-traumatic stress disorder and related diagnostic criteria which triggered the Frye test in evaluating the admissibility of the testimony. Id. at 580-581. Similarly, in Hudson v. State, 820 So. 2d 1070, 1072 (Fla. 5th DCA 2002), the Fifth District held that, although the error was found harmless, use of “pedophile profile” testimony as substantive evidence of guilt constituted error.
45 U.S. Const. amend. VI.
46 Gould, 745 So. 2d at 356-357.
47 Oliver v. State, 977 So. 2d 673, 677 (Fla. 5th DCA 2008).
49 Harrison v. State, 33 So. 3d 727, 731 (Fla. 1st DCA 2010).
50 Id. at 731 (citing Mitchell v. State, 965 So. 2d 246, 251 (Fla. 4th DCA 2007)).
51 Id. at 732.
52 State of S.D. v. Alidani, 609 N.W.2d 152, 155-156 (S.D. 2000).
53 Id. at 158. For a Florida case mentioning, but not directly addressing the admissibility of, a child victim’s drawings, see G.H. v. State, 896 So. 2d 833 (Fla. 1st DCA 2005).
Amy L. Cosentino has worked for the Florida Attorney General’s Office, the Palm Beach County State Attorney’s Office, and currently has her own practice in West Palm Beach focusing on family law. She is an active member of the Family Law Section of The Florida Bar and the 2012 recipient of the Palm Beach Legal Aid Society Child Advocacy Award. The author thanks Monique L’Italien for her contribution to this article.
This column is submitted on behalf of the Family Law Section, Elisha D. Roy, chair, and Sarah Kay, editor.