Cumulative Error in Utah Criminal Appeals
State v. Francis provides an opportunity to review the legal doctrine of cumulative error in context of a criminal defense trial, where the appellate court determined that errors did occur during the jury trial. Each of the claims of error raised in the appeal are worth studying on their own. This article focuses on the issue of cumulative error.
Facts and Procedure of the Case at Trial
The defendant was originally charged with six felony counts relating to conduct involving “two teenaged girls.” At trial, the jury reached a verdict of guilty of one count of object rape and on two counts of forcible sexual abuse. Not guilty verdicts were entered on the other three counts. The defendant appealed all three convictions, raising multiple claims of error at trial. Attorneys for the defendant also raised the issue of cumulative error.
Admissibility of “Blind” Expert Witness Testimony
At trial, the prosecution called a witness to testify as an “expert” witness under Rule 702. The defense raised an objection, based in part on Rule 403 relating to relevance and unfair prejudice.
The witness testified about what characteristics and behaviors were common among victims of sexual assault, even though the witness did not address the specific facts and events of the case being tried. Defense counsel objected. The trial judge overruled the objection and allowed the testimony.
The Court of Appeals analysis focused on the “abuse of discretion” standard, noting that trial judges often have discretion in determining what evidence should or should not be allowed at trial. The court held that the trial court did not abuse its discretion.
Prosecutor’s Objection Sustained – Character for Truthfulness
Evidence relating to a witness’ character for truthfulness may be admissible under certain circumstances. Although no objection was made when the defense attorney asked the stepmother of one of the alleged victims about her “reputation” for being untruthful, the prosecutor objected when defense counsel asked about her “opinion” as to whether she was a truthful or untruthful person. The court sustained the prosecutor’s objection.
On appeal, the court held that the witness should have been allowed to offer opinion testimony as to the victim’s character for truthfulness. However, the Court of Appeals was “not persuaded that this extra testimony would have been significant enough to create a reasonable probability of a different result.”
Instructing a Jury on Lesser-Included Offenses
During trial, defense counsel argued that the jury should be instructed on certain “lesser included offenses” – charges that were related to the crimes charged by the prosecution, but which carried a lower potential penalty than the original charges.
The facts presented at trial arguably could have supported a conviction on either the original charges or on the alternate charges. Still, the trial court declined to give the jury the requested lesser included offense instruction.
The Court of Appeals agreed with the defense, that the requirements for instructing the jury on a lesser included offense. However, the court rejected the argument on appeal “for lack of prejudice.”
Requested Jury Unanimity Instructions
A unanimous jury is a key element of a fair trial in criminal cases, as guaranteed under the United States Constitution’s Sixth Amendment and under the Utah State Constitution. Unanimity requires more than just that all jurors vote for the same verdict. The jurors must be instructed that they must be unanimous as to the specific criminal conduct they believe was committed.
Defense counsel at trial argued that the jury instructions did not adequately inform jurors that they must be unanimous as to “which specific act formed the basis for the counts that resulted in conviction” and also unanimous as to a specific “theory of nonconsent.” The trial court declined to give the instruction requested by the defense. The Court of Appeals held that the trial court’s decision was not an error.
Cumulative Error and Fair Trial Rights in Utah
Defense counsel on appeal raised an additional issue – cumulative error. This is a legal doctrine that considers the snowballing effect of multiple errors being made by the trial court that, together, denied the defendant the right to a fair trial.
Elements of a Cumulative Error Claim
The Court of Appeals cited the ruling in State v. Suhail, 2023 UT App 15, in its analysis of the cumulative error doctrine. Three elements are required in order to reverse a conviction on appeal.
- Errors were made by the court at trial;
- Each error, by itself, has “a conceivable potential for harm”;
- The “cumulative effect of all potentially harmful errors” undermines the appellate court’s confidence in the verdict at trial.
Analyzing Cumulative Error in Criminal Appeals
Of the four issues raised by the defense on appeal, the Court of Appeals ruled that only two of them involved error by the trial court and that neither of those two caused prejudice sufficient to require reversal.
But even after determining that errors did occur, and even though each error had “a conceivable potential for harm,” the appellate court must still analyze the case under the third element of the cumulative error doctrine.
Citing the substantial evidence presented by the prosecution at trial, the Court of Appeals concluded that its “confidence in this verdict is not undermined, even by the cumulative effect of these two alleged errors.”