Similar Acts, Late Notice, and a Child's Outcry
Orange County. Robert Chen is charged with lewd or lascivious molestation of his 9-year-old stepdaughter, L.M. Six days before trial, the State serves notice that it will call two other girls, ages 10 and 12, who say Chen touched them over their clothes at a family pool party. The State also intends to call L.M.'s mother to testify that L.M. told her two days after the alleged incident, 'Daddy touched my private part.' Defense counsel objects to both, citing late notice, unfair prejudice, and hearsay. The State argues the other acts show a common scheme or plan and that the outcry is admissible under section 90.803(23). Trial is set for Monday; notice was served Wednesday. L.M. is available and will testify. The court must decide whether to admit the similar-acts evidence, whether the notice was adequate, and whether the mother's testimony is admissible. The judge also asks whether the Confrontation Clause changes the analysis if L.M. testifies.
1. Is the similar-acts evidence admissible under section 90.404(2)? Did the State's six-day notice comply with the rule?
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Similar-acts evidence is admissible only if it is relevant to a material fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, and only if the probative value is not substantially outweighed by unfair prejudice. The two other girls' testimony could show a common scheme or plan, especially because the conduct, ages, and setting are similar. But the court must conduct a hearing, make findings on similarity and prejudice, and give a limiting instruction. The notice requirement is 10 days before trial under section 90.404(2)(c). Six days is untimely unless the State shows good cause. The court may grant a continuance to cure the late notice or exclude the evidence if the defense cannot prepare. The court should not admit the evidence without addressing the notice violation.
2. Is L.M.'s mother's testimony admissible under section 90.803(23)? What findings are required?
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Section 90.803(23) allows hearsay statements of a child victim under 16 describing an act of abuse if the court finds sufficient safeguards of reliability and the child testifies or is unavailable. L.M. is available and will testify, so the Confrontation Clause does not bar the mother's testimony; the child is subject to cross-examination. But the statute still requires the court to hold a hearing and make specific findings on reliability, considering the time and circumstances of the statement, the child's age and maturity, and whether the statement was spontaneous. The State must also give notice 10 days before trial. The six-day notice is late; the court should consider a continuance or exclusion. The mother's testimony is not automatically admissible just because the child testifies.
3. If L.M. does not testify, how does the Confrontation Clause affect the mother's testimony and the other girls' statements?
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If L.M. does not testify, the Confrontation Clause may bar testimonial hearsay unless she is unavailable and the defendant had a prior opportunity to cross-examine. An outcry to her mother is likely nontestimonial because it was made to a family member for the purpose of seeking help, not to create evidence for trial. But the other girls' statements to their mothers would also need to be evaluated under Crawford. If the statements are nontestimonial, the Confrontation Clause does not bar them, but the hearsay statute still applies. If the statements are testimonial-for example, statements to a forensic interviewer or police-the State must show unavailability and a prior opportunity to cross-examine. The court should hold a hearing and make a record on testimoniality and reliability.