child hearsay

What You Need to Know About Child Hearsay

  • On behalf of Mike G Law posted in on Thursday, June 4, 2020

Divorces can bring out the worst in people. They can lead to people who once declared their love for each other publicly fighting, hiding assets, making threats—and perhaps worst of all—attempting to turn their children against each other.

This latter offense is especially troubling because it can have a lifelong impact on everyone involved. It breaks down trust and instills fear and lies.

Unfortunately, it’s not just divorces that can feature lies. Adults with bad intentions can train children to tell lies in a variety of situations and for a variety of reasons. In addition, sometimes children say things that they don’t understand but which they think adults want to hear. It can get pretty murky, especially when the things alleged are sexual in nature.

What is Hearsay?

Hearsay occurs when a court allows a witness to recount something someone else told them.

Hearsay is problematic because the individual who made the statement is not in court or testifying and thus can’t be questioned. Plus, the participants in the courtroom can’t see this invisible witness and how they handle themselves, making it hard to determine the truthfulness of the hearsay statement.

Most often, these types of statements aren’t allowed. If a prosecutor or defense attorney wants to showcase what a particular witness said, they generally need to put that witness on the stand. For a child, the individual recounting their tale could be a parent, a teacher, a therapist, an officer, or another adult who they supposedly opened up to.

As with many things, though, there are exceptions, and one of those exceptions is child hearsay.

Section 90.803(23) of the Florida Statutes makes an exception for child victims:

(a) Unless the source of information or the method or circumstances by which the statement is reported indicates a lack of trustworthiness, an out-of-court statement made by a child victim with a physical, mental, emotional, or developmental age of 16 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 its 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 s. 90.804(1).

(b) In a criminal action, the defendant shall be notified no later than 10 days before trial that 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 content of the child’s statement, the time at which the statement was made, the circumstances surrounding the statement which indicate 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.

Why is Child Hearsay a Problem?

Any type of hearsay is problematic, but child hearsay may be more so.

As adults, we generally want to help and protect children. When we hear that a child says that someone hurt them, many people will automatically believe it, especially if they aren’t versed in the judicial system and have never heard claims like that before.

Having been a part of the legal system for over two decades, I understand all too well that sometimes children are used as pawns by malevolent adults. They may be coached to allege sexual abuse against a parent, a coach, or a neighbor. This can make them unreliable witnesses. Children are impressionable, and they often want to please. Likewise, they may be more vulnerable to threats made by a parent.

This is not to say that children are incapable of testifying to the truth in court. They certainly can. However, there are too many instances of children being coached into telling lies to police officers, social workers, or psychologists that then get recounted on the stand as truth. These lies can ruin someone’s life, and it is only fair that the child hearsay be adequately challenged.

Child Hearsay Hearings

Before a child’s testimony is allowed into court, a hearing will be held with the judge to determine whether the testimony can be presented.

During this hearing, the prosecution will attempt to show that the child is truthful, that the events they recount have occurred, and that their testimony should be presented during an upcoming case. They may also make the case that the child will be unable to testify and that their testimony will be presented by an adult to which they recounted their ordeal.

The defense will have an opportunity to highlight the unreliability of the child’s testimony and question how the information was come across in the first place. The defense can also challenge the reliability of the individual the child made their statement to. The goal of the defense in this situation is to show that the child’s story is not credible. This can be done by showing that the defendant had an alibi or pinpointing holes in the story that doesn’t make sense.

What Other Evidence Does Child Hearsay Require?

To build a good case, a prosecutor must prove beyond a reasonable doubt that some illegal act has occurred.

When using child hearsay during a trial, however, if the child testifies, the prosecutor does not need to use corroborating evidence. If the child does not testify, they do need to find corroborating evidence to help bolster their case.  That’s a lot resting on the words of a child.

This is almost like a she-said-he-said case, but one of the participants is a minor who is likely to automatically draw the sympathy of the jury.

Accused by a Child? Seek Legal Help

Every accusation is serious when it comes to the legal system. However, those who are accused of harming children are automatically stigmatized by society and face extra difficulties if jailed or incarcerated.

If you’re facing charges where a child is the main witness, it’s crucial that you get help fast. Call Mike G Law and get an advocate on your side that will fight for your rights.


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