An Introduction to Child
Hearsay and Williams Rule
Evidence
A review of admission of child statements and
evidence of prior crimes for non-lawyers
Nicholas Camuccio
Assistant State Attorney
Fifth Judicial Circuit
(352)671-5800
ncamucc@jud5.flcourts.org
uflaxalum@yahoo.com
What is Hearsay?

Hearsay is an out of court statement offered
to prove the truth of the matter asserted
◦ Statement can be written or oral
◦ Can be nonverbal conduct if it is intended by the
person as an assertion


Hearsay is generally inadmissible due to the
fact that it can be unreliable
Exceptions to this general rule are
recognized because there is sufficient
guarantee of reliability of the out of court
statement
Exceptions to the Hearsay Rule
24 different exceptions mapped out by statute
(Florida Statute §90.803)
 Spontaneous Statement

◦ Describes or explains an event or condition while the
declarant was perceiving the event or condition
◦ Keys are spontaneity and contemporaneity of the
statement

Excited Utterance
◦ Excited statement relating to a startling event made
while the declarant is under the influence of the event
◦ 911 calls frequently give good excited utterances
More Exceptions to the Hearsay
Rule
Admissions/Statement against Interest
 Business Records
 Recorded Recollections

◦ Statement about a matter that the witness
once had knowledge but now has insufficient
recollection
◦ As long as the recorded statement was made
at a time the witnesses’ memory was fresh
Statements for Purposes of Medical
Diagnosis
Statements for purpose of a medical diagnosis or
treatment by a person seeking the diagnosis
 Or made by a person legally responsible for that
person and is seeking the diagnosis for someone
who cannot communicate medical history
 The statements of presently existing physical
condition (symptoms, pain, and sensations) are
admissible
 Not all courts will accept this for statements
made to CPT in child abuse cases – very fact
specific

Child Hearsay
Exception found in Florida Statute §90.803 (23)
Out of court statement made by a child victim 11
years of age or younger (physical, mental, or
emotional)
 Describes an act of child abuse or unlawful sexual
act
 Admissible if in a hearing out of the presence of
the jury the judge determines that the statement
is reliable and from a trustworthy source
 The determination of reliability must be made
without looking to corroborative evidence


Does this apply to child witnesses
of the act?
Statutory exception specifies it must be a victim
 Child witness to applicable crime not enough
(State v. Dupree,656 So. 2d 430 (Fla. 1995) – child
witness to murder case)
 Lewd or Lascivious Exhibition

◦ Intentionally masturbates, or
◦ Intentionally exposes the genitals in a lewd or
lascivious manner, or
◦ Intentionally commits another sexual act that does
not involve contact with the victim including
simulation of sexual activity
Procedure

Filing of Intent to Rely on Child Hearsay Evidence
◦ Must include a summary of the statements made and
who they were made to
◦ Must be filed at least 10 days prior to trial

Hearing
◦ Witnesses that the child made statements to will be
called
◦ Child does not necessarily need to testify at hearing,
but it is preferred
 Focus is not on what happened
 Focus is on the ability of the child to testify competently
 Video interview of the child can be used if the child was
qualified to testify
Child Hearsay Hearing

Focus of the hearing:
◦ What was said
◦ What were the circumstances surrounding
that statement
Must be done out of the jury’s presence
 Generally (and preferably) done prior to
the trial

Witnesses Commonly Used
Family members and Friends
 Law Enforcement
 Medical Staff
 DCF workers
 Forensic Interviewers

Does the child victim have to
testify?
Child is not required to testify at the child
hearsay hearing (Perez v. State, 536 So. 2d
206 (Fla. 1989))
 It is preferable for the court to be able
to personally examine the child to
determine the child’s ability to perceive
and relate facts concerning the event
 It is permissible to use a video taped
interview during this hearing

Preparation for Child Hearsay
Hearing (or any other testimony)

Preparation begins during your initial
meeting with the child
◦ Its all in the details
◦ Write things down
◦ Use quotes when appropriate
Review Reports, Pictures,Videos
 Review any recorded statements
 Meeting with Prosecutor

Meeting with Prosecutor
Opportunity to review what is going to
be covered during your testimony
 Talk to the prosecutor about any
concerns
 Go through questions that the
prosecutor is going to ask
 Discuss possible defense strategies
 Discuss possible cross-examination

The Court’s Role

Two pronged analysis
◦ Is the statement reliable
◦ Was it made to a trustworthy source

The Court cannot consider
corroboration when making this
determination
Reliability Factors






State v.Townsend (635 So. 2d 949, (Fla. 1994))
establishes non-exclusive list of criteria to
determine reliability:
Spontaneity of the statement
Was the statement made at the first available
opportunity following the incident
Whether the statement was elicited in response
to questions from adults (Non-leading
questions preferred)
The mental state of the child when reported
Was the description a child-like description
Reliability Factors Cont.
Did the child use terminology unexpected of
a child
 The motive or lack thereof to fabricate the
statement
 The ability of the child to differentiate
between fantasy and reality
 The vagueness of the allegation
 Contradictions in the statement
 Possibility of influence on the child in the
case of a domestic dispute

Trustworthy
Who is the statement made to
 Does this witness have a stake in the
outcome
 Is this person trained in interviewing

Testimony at Child Hearsay Hearing
Relax
 Talk to the Judge
 Listen to the question
 Answer the questions that are asked
 Make sure you understand the question
 Don’t argue with Defense Attorneys

Testimony at the Child Hearsay
Hearing

Three goals
◦ Convey what was said
◦ Establish it was reliable
◦ Establish that the witness is trustworthy

How to do that
◦ Witness background and training
◦ Circumstances surrounding interview
◦ What was said (or video)
Cross-Examination
Goal of Cross Examination is to
undermine credibility
 Focus on Cross in Child Hearsay

◦ Was the child lead in questioning
◦ Does the witness have a stake in the outcome
◦ Townsend factors that are not present
Handling Cross Examination
Be respectful and polite to everyone in
the courtroom - especially the defense
attorney
 Maintain poise and control
 LISTEN TO THE QUESTION
 Stay on point
 Don’t play games with the attorney

Confrontation Clause
 6th Amendment

to the US Constitution
Guarantees:
◦ Speedy trial by jury
◦ Counsel
◦ To be confronted by the witnesses against
them

Does not necessarily require face to face
confrontation
Crawford v. Washington
Testimonial hearsay complies with
confrontation clause only if the declarant
testifies at trial or was unavailable and the
accused had an opportunity for crossexamination
 Generally, a statement is testimonial when
it is taken in anticipation of litigation
 A statement to a CPT worker or law
enforcement officer is testimonial

Use of Child Hearsay in Trial
Witnesses can testify about what the child told
them
 Video interview can be played
 Can be used even if inconsistent with trial
testimony
 Can be used even if child recants at or before
trial (Johnson v. State, 1 So. 3d 1164 (1st DCA
2009)

◦ However – if there is no other evidence and the child
recants the case will be dismissed

Just because it was admitted does not necessarily
mean that it will be used
Case Study:
State v. Darren Butler
Victim spent the weekend with her aunt, her
aunt’s boyfriend, and the boyfriend’s brother
(the Defendant)
 When the victim returned home, mother
noticed a change in behavior and asked what
was wrong
 Child disclosed to the mother and then to
CPT/CAC witnesses about the abuse
 Defendant eventually admits to digital
penetration

Case Study:
State v. Darren Butler

Details of disclosure
◦ To mother: Stated he put his hands down her
pants, took her clothes off, and “peed inside
her”
◦ To CPT: Defendant touched her with his
hands, took her clothes off, “his privates
touched her privates”, and she saw something
come out of his privates onto her privates
Case Study:
State v. Darren Butler

Child Hearsay Hearing
◦ Presented evidence of mother, CPT workers, and child testified
(but not about the events)
◦ There was no video interview of the child
◦ Court made specific findings consistent with Townsend
 No evidence of hostility or motive to fabricate
 No evidence of either the mother or CPT staff using improper influence
(questions not leading or suggestive)
 Testimony of child was consistent with a child of her age
 No significant contradictions in the testimony of the child to different
sources
 Court determined that the child understood truth v. lie and fantasy v.
reality
 Court ruled that both the mother and CPT worker were trustworthy
sources
◦ Only after theses determinations were made did the Court
determine that there was sufficient evidence to corroborate the
hearsay (the confession)
Case Study:
State v. Darren Butler

Trial
◦ Mother and CPT workers both testified about
the contents of the disclosure and the
circumstances surrounding the disclosure
◦ Child testified but was unable to give the level
of detail previously described
◦ Defendant was convicted as charged and is
serving life in prison
Case Study:
State v. Andrew Karelas
Victim is abused by Mother’s Boyfriend at
a Lake House
 Independent witness sees what appears
to be a sexual act in the window
 Assumes the Defendant to be with his
Girlfriend so he just bangs on door
 Defendant gets up and child is underneath

Case Study:
State v. Andrew Karelas
Child is interviewed for hours by law
enforcement
 Child will not disclose any sort of
penetration
 Law enforcement would not allow child to
go to the bathroom for fear that physical
evidence may be lost
 Child was subsequently interviewed over the
next week by at least three other CAC
interviewers in different jurisdictions

Case Study:
State v. Andrew Karelas
Defense expert listed who testifies that
the improper interviewing techniques led
to false memories
 Court excluded the testimony of the
child
 Court ruling was appealed and overruled
 Defendant eventually pled to Child Abuse

What is Williams Rule?
Florida Statute §90.404
 Evidence of prior bad acts or other
crimes committed by the Defendant
 Two different types

◦ Traditional Williams Rule §90.404(2)(a)
◦ Other Acts of Sexual Abuse
 Other Acts of Child Molestation §90.404(2)(b)
 Other Acts of Sexual Abuse §90.404(2)(c)
Brief History of Williams Rule

Traditional Williams Rule
◦ Can be used for very specific reasons
 To prove intent, motive, absence of mistake or fact,
opportunity, preparation, or knowledge
◦ Cannot be used solely to show propensity to commit
an act or bad character
◦ Prior act must be very similar to the charged act
◦ Court must determine that the evidence is being
presented to show something other than propensity
and whether the unfair prejudice outweighs the
probative value of the evidence
◦ Cannot become the feature of the trial
Brief History of Williams Rule

Other Acts of Child Molestation
◦ In 2001, the legislature expanded situations
where Williams Rule could be used in child sex
cases
◦ Original statute allowed the use of evidence of
the Defendant committing other acts (L&L or sex
battery) when the victim is 16 or younger
◦ Can be used to show propensity of the
Defendant to commit the act or corroborate the
testimony of the victim
◦ Still must be relevant
Brief History of Williams Rule

“Walk in their Shoes Act”
◦ Effective July 1, 2011
◦ Expands the types of other acts of child
molestation that can be used against the
defendant in §90.404(2)(b)
 Now includes internet and technology related crimes
such as child pornography and traveling to meet a minor
◦ Adds §90.404(2)(c)
 Similar to Other Acts of Child Molestation but does not
have an age restriction for the age of the victim
 Language in this section mirrors §90.404(2)(b) so case
decisions should be able to be used for this section
Procedure

Filing of Intent to Rely on Williams Rule
Evidence
◦ Must include a summary of the prior bad acts
◦ Must be filed at least 10 days prior to trial

Hearing
◦ Witnesses that would prove the prior crime are
called (prior victim, law enforcement, etc.)
◦ Must show relevance
◦ Must not become a feature of the trial
◦ State must prove prior bad acts by “Clear and
Convincing Evidence”
The Court’s Role

Must determine relevance
◦ Why is the evidence being offered (Traditional vs.
Other Sexual Acts)
◦ Is the probative value of the other crime
substantially outweighed by the danger of unfair
prejudice.
◦ Factors the Court will review:
 (1) the similarity of the prior acts to the act charged
regarding the location where the acts occurred, the age and
gender of the victims, and the manner in which the acts were
committed
 (2) closeness in time of the prior acts to the act charged
 (3) frequency of the prior acts
 (4) the presence or lack of intervening circumstances.
Case Study:
State v. Susan Creecy and David Horton
Defendants were involved in long term
relationship with each other
 Defendants charged with numerous sex
acts upon the daughter of Creecy
 State learned of allegations involving the
same Defendants upon other children
across the country as well as acts on the
same child in other States

Case Study:
State v. Susan Creecy and David Horton
Total of four separate Williams Rule notices
filed
 Included allegations of crimes against victim
in other States
 Included allegations that another “girlfriend”
had participated in these acts with victim in
another State
 Included allegations of other victims in
Georgia, Illinois, and South Carolina
 Included an allegation made by Creecy of an
event she observed between Horton and
the victim

Case Study:
State v. Susan Creecy and David Horton

Williams Rule Hearing
◦ Offered evidence of the victim regarding
abuse in other states
◦ Offered evidence of the “girlfriend” about
what she observed the Defendant’s do with
victim in other States, how she participated
with this victim, and other children she
observed the Defendant’s abuse in other
States
◦ Offered evidence of another victim abused by
Horton
Case Study:
State v. Susan Creecy and David Horton

Williams Rule Hearing
◦ This evidence was offered under both theories of
Williams Rule
 Traditional – “plan, opportunity, motive, absence of
mistake or fact”
 Showed the similarities of how Horton isolated other victim
and committed these crimes away from other possible
witnesses
 Other Acts of Child Molestation – Show propensity and
corroboration of the victim’s testimony
◦ Obtained specific ruling that it was allowable
under both theories
Case Study:
State v. Susan Creecy and David Horton

Trial
◦ Required two juries (one for each Defendant)
◦ Victim testified about other abuse
◦ “Girlfriend” testified about her involvement with
abuse on victim (Did not testify about other
children she observed abused by Defendants)
◦ Other victim testified about what Horton did to
her
◦ Both Defendant’s convicted as charged and are
both serving life sentences