The Cumulative Error Doctrine

Criminal defendants have a constitutional right to a fair trial, including fundamentally fair procedures. That is the essence of due process protected by both the U.S. and Tennessee Constitutions. A key element of this protection is something known as the cumulative error doctrine. The idea behind the cumulative error doctrine is that errors in isolation may not be impactful, but that multiple errors together or cumulatively may require a finding that the defendant’s trial does not comport with the due-process ideal of fundamental fairness.

Courts across the country are divided over whether the cumulative error doctrine can be asserted in ineffective assistance of counsel claims.[1] The Second, Seventh and Ninth Circuits allow such claims, while several other circuits do not. Legal commentators have urged for U.S. Supreme Court review on this issue.

What is clear, however, is that the cumulative error doctrine is alive and well during the direct review stage in many jurisdictions. In direct review cases, most courts address the concept of cumulative error by determining whether the accumulation or aggregation of errors deprived the defendant of a fair trial. Courts will consider errors by the trial court judge, as well as misconduct by trial participants and witnesses.[2] But, courts use different language in describing that analysis. California courts employ a “reasonable possibility” analysis — whether there is a reasonable possibility that absent the errors, the jury would have reached a result more favorable to the defendant.[3] The Utah Supreme Court phrases the test as whether the accumulation of errors “undermines our confidence” that the defendant received a fair trial.[4]

Other jurisdictions employ a totality of the circumstances analysis. For example, the Washington Supreme Court framed the inquiry as “whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial.”[5] The defendant must show multiple errors occurred and that “the accumulated prejudice” denied the defendant a fair trial.[6]

The Tennessee Supreme Court explained the purpose of the doctrine in 2010:

The cumulative error doctrine is a judicial recognition that there may be multiple errors committed in trial proceedings, each of which in isolation constitutes mere harmless error, but which when aggregated, have a cumulative effect on the proceedings so great as to require reversal in order to preserve a defendant's right to a fair trial.[7]

The Tennessee high court explained that reversals under the cumulative errors doctrine are rare.[8] The court also explained that courts must examine the nature and number of errors, how they were related, how the trial court handled the errors as they occurred, and the strength of the state’s case.

State v. Herron

In 2015, the Tennessee Supreme Court later used the cumulative error doctrine to reverse a defendant’s conviction in a rape case in State v. Herron.[9] The prosecution contended that the defendant raped his girlfriend’s daughter sometime between 2002 and 2006. However, he was not charged until 2010, and his trial not held until 2012.

During the defendant’s trial, the judge allowed the prosecution to admit the victim’s recorded forensic testimony during direct examination. Prior consistent statements generally are not admissible to bolster a witness’ testimony.[10]

Another significant error occurred during the trial. The prosecution gave the defendant notice that it would rely on his 1996 convictions for taking indecent liberties with a child and for giving a false statement under oath. These convictions were more than 10 years old and inadmissible under Tenn. R. Evid. 609. However, the trial judge ruled that if the defendant testified, the prosecution would be able to question him about these old convictions.[11]

Given this ruling, the defendant chose not to testify. A jury convicted the defendant. The Tennessee Court of Criminal Appeals affirmed the conviction. On further appeal, the Tennessee Supreme Court applied the cumulative error doctrine and reversed the conviction because of the two significant errors.

“The two errors in this case functioned to bolster [the victim’s] credibility and to silence the defendant,” the court explained. “The proof of guilt in this case, while sufficient to support the conviction, was not overwhelming. The abuse was not reported until 2010, four years after [the victim] testified that it had ended.”[12]

Given the Tennessee Supreme Court’s use of the cumulative error doctrine to reverse a conviction, one might think this would cause the Tennessee Court of Criminal Appeals to use the doctrine. Such has not been the case.

Most Tennessee Appellate Courts Give Short Shrift to Cumulative Error

Most Tennessee appellate court decisions give embarrassingly short shrift to the issue of cumulative error. They have failed to apply the doctrine with any vigor. Many times Tennessee appellate courts do one of the following:

find that there is no error at all;[13]
find that there is only one error;[14]
determine that any errors were harmless.[15]

For example, the Tennessee Supreme Court mentioned cumulative error in the most conclusory fashion in a recent death penalty appeal, saying that even if there were cumulative error, any error was harmless.[16]

Defense attorneys often don’t do much better. The reality is that attorneys often assert the cumulative error doctrine as almost an after-thought, add-on issue at the end of their briefs. The result is that the Tennessee Court of Criminal Appeals dismissively treats the cumulative error issue at the end of their opinions in only a couple of sentences.

This is not meant to pick at the Tennessee Court of Criminal Appeals. Their dismissive treatment of the cumulative error comports quite well with how many courts across the country treat the doctrine.

Many courts find no cumulative error even when there are numerous errors, because of the supposed overwhelming evidence of the defendant’s guilt. Other courts emphasize the weakness of individual errors. As one federal appeals court once wrote in a habeas case, “Twenty times zero equals zero.”[17]

This is a tragedy. In many cases, there are multiple errors. Counsel should assert the cumulative error doctrine with some vigor. Even if appellate counsel fail to pursue the claim vigorously, if the issue is asserted the appellate court should do more than summarily dismiss it in cursory fashion at the very end of their opinions.

Both counsel and courts should take the cumulative error doctrine more seriously. If multiple errors occurred during a trial, then counsel should assert the issue on appeal and appellate courts should examine the record carefully.

Conclusion

The cumulative error doctrine is treated as almost an afterthought in the criminal justice system. As one federal appeals court acknowledged, “the possibility of cumulative error is often acknowledged but practically never found persuasive.”[18] Another court has written of the “enigmas” of the doctrine.[19]

Those charged with crimes and the loss of their liberty deserve better. They do not deserve perfect trials under the federal and state constitution. But, they do deserve trials that are not riddled with error.

Notes

1. See Michael C. McLaughlin, “It Adds Up: Ineffective Assistance of Counsel and the Cumulative Error Doctrine,” 30 Ga. St. U.L. Rev. 859, 871-878 (2014); see also Ruth A. Moyer, “To Err Is Human; to Cumulate, Judicious: The Need for U.S. Supreme Court Guidance on Whether Federal Habeas Courts Reviewing State Convictions May Cumulatively Assess Strickland Errors,” 61 Drake L. Rev. 447 (2013).
2. See State v. Greiff, 10 P.3d 390, 399-400 (Wash. 2000).
3. People v. Jandres, 171 Cal.Rptr.3d 849, 867 (Cal.App. 6 Dist. 2014).
4. State v. Lucero, 328 P.3d 841, 849 (Utah 2014).
5. In Re Cross, 327 P.3d 660, 678 (Wash. 2014).
6. Id.
7. State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010).
8. Id. at 76.
9. State v. Herron, 461 S.W.3d 890 (Tenn. 2015).
10. Herron, 461 S.W.3d at 904-05.
11. Herron, 461 S.W.3d at 907.
12. Herron, 461 S.W.3d at 910.
13. State v. Long, No. E2015-01287-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 368, *70-71 (Tenn. Crim. App.)(May 11, 2017); State v. Smith, No. W2015-02360-CCA-R3-CD,. 2017 Tenn. Crim. App. LEXIS 370, *54 (Tenn. Crim. App.)(May 11, 2017); State v. Leonard, No. M2016-00269-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 308, *41-42 (Tenn. Crim. App.)(April 27, 2017) .
14. See State v. Willis, 496 S.W.3d 653, 761 (Tenn. 2016)(finding that there was only one error).
15. State v. Hawkins, 2017 Tenn. LEXIS 272 at *130 (May 1, 2017); State v. Jenkins, No. M2016-00270-CCA-R3-CD, 2017 Tenn. Crim. App. LEXIS 293 at *81 (Tenn. Crim. App.)(April 21, 2017).
16. State v. Hawkins, 2017 Tenn. LEXIS 272 at *130 (May 1, 2017).
17. Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987).
18. United States v. Delgado, 672 F.3d 320, 344 (5th Cir. 2012).
19. Hagans v. United States, 96 A.3d 1, 44 (D.C. 2014).


DAVID L. HUDSON JR.is the co-editor of The Encyclopedia of the Fourth Amendment (CQ Press, 2013). He also serves as the director of academic affairs and professor of law at the Nashville School of Law (NSL). He teaches classes at NSL and Vanderbilt University Law School. He received his law degree from Vanderbilt.

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