Federal Evidence Review

In considering a trial in which evidentiary errors were made subject to harmless-error review (because they were preserved) and plain errors were made (because they were not preserved), cumulative-error analysis will examine any preserved errors as a group first under a harmless-error review and if cumulatively they are not harmless, reversal is required. If the preserved errors are cumulatively harmless, the appellate court will then examine the preserved errors, “in conjunction with the unpreserved errors” to determine whether they “are sufficient to overcome the hurdles necessary to establish plain error,” in United States v. Caraway, 534 F.3d 1290 (10th Cir. July 28, 2008) (No. 07-3229)

When assessing the record for appeal, counsel occasionally needs to consider evidence objections that were preserved from those that were not. Often counsel faces a record that has a mixture of preserved and unpreserved errors. This can pose a problem on appeal when no single error is sufficient for reversal, but perhaps the combination of the errors might warrant reversal. The errors properly preserved are subject to a harmless error review in which the government has the burden of proving that the error does not affect the defendant's "substantial rights." On the other hand, if the defendant failed to object at trial, so that the error is not preserved, the burden shifts and the burden on appeal is for the defendant to show that the error affects his substantial rights. Two years ago, the Tenth Circuit considered how cumulative error combines both a plain error and harmless error standards.

In the case, Defendant Caraway was charged with mailing a bomb to the companion of his ex-wife several months after his bitter separation from her. The bomb exploded injuring the companion and his son. At trial, the prosecutor’s direct examination of the defendant’s daughter Jessica revealed that she had given postal inspectors a written statement. The written statement described how she had driven the defendant’s son [Shawn] to the post office to mail a package that had the bomb. The written statement was admitted at trial and ultimately the defendant was convicted. He appealed

The circuit dismissed any contention that challenges to the admission of this evidence were sufficient for reversal. The daughter’s testimony that she had lied in an earlier statement was hearsay and inadmissible as a prior inconsistent statement. The admission of the contents of the prior statement was an error, but the error was not plain error because it concerned a relatively minor detail. Similarly, the daughter’s written statement that she admitted contradicted her testimony at trial was hearsay and inadmissible as a prior inconsistent statement. The admission of the contents of the prior statement was also an error, but the error was harmless as the jury had already been exposed to the content of the writing was not central to the trial. In his filings the defendant contended that even if any single error was insufficient to undermine the verdict, considered cumulatively reversal was necessary.

The circuit concluded that the defendant failed to meet his burden that absent the errors, the outcome of the trial would have been different. The circuit noted some challenge in determining if the errors cumulatively would entitle the defendant to reversal. The circuit noted that admission of the daughter’s written statement was harmless error; the admission of her oral testimony on her written statement was a plain error but not a plain error requiring reversal, and the same was true of the use of this written statement by the prosecutor as substantive evidence in closing argument. The circuit described how to evaluate errors determined under different standards:

[W]hen there are both preserved and unpreserved errors, cumulative-error analysis should proceed as follows: First, the preserved errors should be considered as a group under harmless-error review. If, cumulatively, they are not harmless, reversal is required. If, however, they are cumulatively harmless, the court should consider whether those preserved errors, when considered in conjunction with the unpreserved errors, are sufficient to overcome the hurdles necessary to establish plain error. In other words, the prejudice from the unpreserved error is examined in light of any preserved error that may have occurred. For example, the defendant may not be able to establish prejudice from the cumulation of all the unpreserved errors, but factoring in the preserved errors may be enough for the defendant to satisfy his burden of showing prejudice. If so, the fourth prong of plain-error review must then be examined.

Caraway, 534 F.3d at 1302.

In applying this standard, the circuit noted that since there was only one preserved error in the defendant’s case (the objection to admission of the daughter’s written statement) there would be no need to use a cumulative harmless-error analysis. Grouping the preserved error and those unpreserved would need to “establish prejudice.” The circuit concluded this standard could not be met because whether the daughter’s “prior statement affected Mr. Caraway’s substantial rights was not a close one. Any additional harm resulting from the preserved error-the admission of the written statement (as opposed to the oral testimony describing the statement)-was far too slight to push the prejudice over the line.” Under cumulative-error analysis, defendant must show that the combined effect of individually harmless errors was so prejudicial as to render his trial fundamentally unfair.Caraway, 534 F.3d at 1303.

There does not appear to be a firm consensus on incorporation into a cumulative-error analysis of plain errors that do not, standing alone, necessitate reversal. Some circuits, like the Tenth, combine all nonreversible errors (the harmless errors and the plain errors that do not necessitate reversal) into a cumulative-error analysis. See, e.g., United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). However, other circuits, such as the Ninth, have authority for reviewing separately any cumulative plain errors. See, e.g., United States v. Necoechea, 986 F.2d 1273, 1283 (9th Cir. 1993) ( “[W]e review the cumulative impact of the possible plain errors for plain error”)