[Disclosure: The author filed an Amicus Curiae brief in the case discussed below on behalf of the Tennessee Association of Criminal Defense Lawyers (TACDL). The author’s brief — which primarily addressed the issue discussed in Section B, below — is accessible here.]
Forensic interviews in child sex cases generally are not admissible as substantive evidence in criminal trials, the Supreme Court of Tennessee held in a much-overlooked but vitally important criminal procedure case. According to the Court’s unanimous opinion in State v. Herron, No. W2012–01195–SC–R11–CD, 2015 WL 1361262 (Tenn. Mar. 26, 2015), forensic interviews in child sex cases are subject to the same evidentiary constraints that generally prohibit admitting “prior consistent statements” during criminal and civil trials.
Furthermore, the Tennessee Supreme Court’s opinion in Herron reaffirms the Court’s prior ruling in State v. Galmore that a defendant generally “is not required to make an offer of proof” in order to prove on appeal that a trial court’s erroneous, adverse ruling on impeachment evidence affected the outcome of his trial. See State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999).
Additionally, by granting the defendant in Herron a new trial on the basis of the combined effect of two separate trial errors, the Court’s decision in Herron has breathed life into the oft-ignored “cumulative error doctrine,” which “embodies the idea that a multiplicity of errors—though individually harmless—may in the aggregate violate a defendant’s due process right to a fair trial.” State v. Clark, 452 S.W.3d 268, 299 (Tenn. 2014).
A. The Tennessee Supreme Court’s Holding that Forensic Child Interviews Constitute Prior Consistent Statements
In recent years, prosecutors have started to utilize “recorded forensic interviews” in child sex cases with increasing frequency in an attempt to document alleged child abuse and to preserve evidence in prosecutions involving young children. According to Tennessee law, under circumstances when the child being interviewed is under thirteen years old, in order to be admissible at trial, such interviews must be conducted by licensed professionals in a manner that maximizes reliability; minimizes the likelihood that allegations of abuse will be distorted or fabricated; avoids coercion; and generally “possess[es] particularized guarantees of trustworthiness.” See generally Tenn. Code Ann. § 24-7-123(a)-(b).
In Herron, the Tennessee Supreme Court made clear that a sixteen-year-old child’s forensic interview “constitute[d] a prior consistent statement” under Tennessee law. See State v. Herron 2015 WL 1361262, at *12 (Tenn. Mar. 26, 2015). Therefore, the Court held, the recorded forensic interview was subject to the same evidentiary constraints that generally prohibit admitting prior consistent statements during trial. As opposed to a previously-made statement that conflicts with a witness’s trial testimony in some way (known as a “prior inconsistent statement”), a prior consistent statement is a prior witness statement that merely duplicates a witness’s trial testimony. In general, courts view such statements with skepticism, often finding such statements to be unnecessary, duplicative, and sometimes, unfairly prejudicial.
Unlike Federal Rule of Evidence 801(d)(1)(B), the Tennessee Rules of Evidence do not specifically address whether prior consistent statements are admissible at trial. According to well-settled Tennessee common law, however, “[p]rior consistent statements are generally not admissible to bolster the testimony of a witness.” Herron, 2015 WL 1361262, at 11 (collecting cases).
One exception to the general rule against admitting prior consistent statements, however, permits such statements to be introduced in order to refute a claim that a witness has recently fabricated his or her testimony or is deliberately giving false testimony. According to the Tennessee Supreme Court, “[t]his exception permits the prior consistent statement to be used as a means of rebuffing such attacks and showing that the witness’s trial testimony is consistent with statements made before any improper influence or motive to lie existed.” Id. (citing Sutton v. State, 291 S.W. 1069, 1070 (Tenn. 1927)). Even under such circumstances, however, such statements may not be introduced unless “the witness’s testimony has [first] been assailed or seriously questioned to the extent that the witness’s credibility needs shoring up.” Id. (internal quotations and alterations omitted). Furthermore, “[p]rior consistent statements admitted pursuant to this exception are not to be used as substantive evidence of the truth of the matter asserted and are to be used only to rehabilitate the witness’s credibility.” Id. at 12. Although technical, the distinction between substantive and non-substantive evidence is vital in criminal cases, because a defendant may not be convicted unless the State has introduced substantive evidence of the defendant’s guilt.
In Herron, the State introduced the child witness’s forensic interview during direct examination in its case-in-chief “before defense counsel had cross-examined her or mounted any attack at all on her credibility.” Id. As a result, the Tennessee Supreme Court held that the trial court erred by allowing it to be admitted.
Significance of Herron‘s holding concerning recorded forensic interviews in future cases
Herron’s holding that recorded forensic interviews must be treated as – and subject to – the constraints of the general prohibition against admitting prior consistent statements is important because it sets up a likely conflict over the constitutionality of Tenn. Code Ann. § 24-7-123 in a future case. The reason why is that in contrast to Herron—which involved a sixteen-year-old witness—the legislature has enacted a specific statute (Tenn. Code Ann. § 24-7-123) to govern the admissibility of recorded forensic interviews of children under thirteen years old. According to Tenn. Code Ann. § 24-7-123, forensic interviews of children under thirteen:
(1) “may be considered [at trial] for [their] bearing on any matter to which [they are] relevant in evidence,” and
(2) “may be admitted” at trial pursuant to the requirements established by the statute.
Both of these provisions arguably conflict with the Tennessee Supreme Court’s opinion in Herron, which held unmistakably that recorded forensic interviews “are not to be used as substantive evidence of the truth of the matter asserted and are to be used only to rehabilitate the witness’s credibility.” Herron, 2015 WL 1361262, at 12. Thus, Herron sets up a likely dispute over whether Tenn. Code Ann. § 24-7-123 violates the Tennessee Constitution’s separation of powers doctrine by encroaching upon the judiciary’s authority to decide whether evidence is admissible at trial. See, e.g., State v. Mallard, 40 S.W.3d 473, 483 (Tenn. 2001) (“the legislature can have no constitutional authority to enact rules, either of evidence or otherwise, that strike at the very heart of a court’s exercise of judicial power[.]”) (emphasis added). See also Daniel A. Horwitz, Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution, __ Tenn. J.L. & Pol’y __ (2015) (summarizing the Tennessee Supreme Court’s separation of powers doctrine with respect to legislative encroachment on judicial authority).
To the extent that Tenn. Code Ann. § 24-7-123 provides that prosecutors are permitted to introduce recorded forensic interviews both as substantive evidence at trial and prior to a witness being impeached, it violates the Tennessee Constitution’s separation of powers doctrine. See id. Accordingly, assuming that such a case reaches the Tennessee Supreme Court, the author predicts that Tenn. Code Ann. § 24-7-123(a)’s provision that recorded forensic child interviews “may be considered for [their] bearing on any matter to which [they are] relevant in evidence” will be restricted by the Court to ensure that it comports with Herron’s requirement that such interviews “are not to be used as substantive evidence of the truth of the matter asserted and are to be used only to rehabilitate the witness’s credibility.” Herron, 2015 WL 1361262, at 12.
Similarly, the author predicts that in a future case, the Tennessee Supreme Court will read Tenn. Code Ann. § 24-7-123(b)’s provision that “[a] video recording may be admitted” at trial very narrowly in order to avoid a constitutional conflict. Specifically, the author predicts that the Tennessee Supreme Court will interpret Tenn. Code Ann. § 24-7-123(b)’s provision that forensic video recordings of children under thirteen years old “may be admitted” as a permissive—rather than mandatory—provision that contemplates full compliance with Herron’s requirement that such interviews may only be admitted under circumstances when “the witness’s testimony has been assailed or seriously questioned to the extent that the witness’s credibility needs shoring up.” Id. at 11 (internal quotations and alterations omitted). Of note, both results are supported by the Court’s recent decision in State v. McCoy, which rejected a facial challenge to the constitutionality of Tenn. Code Ann. § 24-7-123, but which also held that forensic child interviews may be admitted subject to a trial court’s discretion only if the interview is “relevant and otherwise comports with . . . the Tennessee Rules of Evidence.” State v. McCoy, No. M2013-00912-SC-R11CD, 2014 WL 6725695, at *14 (Tenn. Dec. 1, 2014) (emphasis added).
B. The Tennessee Supreme Court’s Holding that the Defendant in Herron Did Not Need to Make and Offer of Proof
In Herron, the trial court also ruled that if the Defendant took the stand and testified in his own defense, then the State would be permitted to impeach him with evidence of an unspecified prior felony conviction. That ruling directly violated the Tennessee Supreme Court’s prior, unequivocal holding in State v. Galmore that using unspecified prior felony convictions as impeachment evidence against a defendant is categorically prohibited by Tennessee law. See State v. Galmore, 994 S.W.2d 120, 122 (Tenn. 1999). Specifically, in Galmore, the Tennessee Supreme Court explained:
“Not identifying the felony . . . would permit a jury to speculate as to the nature of the prior conviction. Furthermore, instructing the jury on an unnamed felony would provide inadequate information for a jury to properly weigh the conviction’s probative value as impeaching evidence. We hold that the proper application of the balancing test under Tenn. R. Evid. 609(a)(3) requires identification of the prior conviction.”
Id.
Furthermore, the trial court’s ruling regarding the State’s right to impeach the Defendant encompassed a further holding that if the defendant testified, “the State would be permitted to question [the Defendant] about prior arrests and convictions.” Herron, 2015 WL 1361262, at 12. This ruling similarly violated the “long established [rule] that the prosecution may not rely on prior accusations, arrests, or indictments.” State v. Ivy, 188 S.W.3d 132, 154 (Tenn. 2006).
The State conceded that the trial court erred in making these evidentiary rulings, and the Herron Court denounced Shelby County Criminal Court Judge Carolyn W. Blackett’s rulings on these points as “inexplicabl[e].” Herron, 2015 WL 1361262, at 13. Furthermore, in concluding its opinion, the Herron Court less-than-subtly reminded Judge Blackett that next time around, “the Tennessee Rules of Evidence and other relevant Tennessee law must be carefully applied[.]” Id. at 18.
What was most crucial about the Herron Court’s ruling on these evidentiary points, however, is that the Court reaffirmed its prior holding in Galmore that a defendant generally “is not required to make an offer of proof” in order to prove on appeal that a trial court’s erroneous, adverse ruling on impeachment evidence affected the outcome of his or her trial. See Galmore, 994 S.W.2d at 125. An “offer of proof” – sometimes called a “proffer” instead – is a procedural requirement that a litigant indicate on the record what his or her testimony would have been if not for the trial court’s evidentiary ruling.
In general, “[a]n offer of proof serves two primary purposes: (1) informing the trial court about the proof the party is seeking to offer; and (2) creating a record so that an appellate court can review the trial court’s decision.” State v. Torres, 82 S.W.3d 236, 251 (Tenn. 2002). Jurisdictions are split on whether such a rule is beneficial in criminal cases, but in rejecting an “offer of proof requirement” for purposes of Tennessee law, the Galmore Court emphasized the following four systemic problems with requiring offers of proof:
(1) “the potential unconstitutionality of requiring a defendant to make an advance offer of proof,”
(2) the fact that a defendant’s trial testimony “could, for any number of reasons, differ from the proffer,”
(3) the fact that “[t]he nature and scope of the proffer, as well as the prosecutor’s use of the defendant’s proffered testimony, if he testifies, for impeachment purposes at trial, raise thorny questions about the extent to which the state can cross-examine the defendant and use the defendant’s testimony at trial,” and
(4) the fact that “requiring the defendant to make an offer of proof exposes him to the tactical disadvantage of prematurely disclosing his testimony.”
Id. at 124 (internal citations and quotations omitted).
These four concerns notwithstanding, however, the Galmore Court also held that “[d]epending upon the facts and circumstances of a case, an offer of proof may be the only way to demonstrate prejudice.” Id. at 125.
In the brief that the State Attorney General filed in Herron, the State attempted to limit Galmore’s holding that offers of proof generally are not required under Tennessee law to a degree that it would have become unrecognizable. Specifically, even though Herron was unquestionably a very close case, and even though the record plainly indicated that the Defendant would have supplemented his defense with testimony that he was innocent, the State insisted that the Defendant could not demonstrate prejudice on appeal because he had not made an offer of proof in the trial court. The Herron Court rejected the State’s argument on this point in full, holding instead that prejudice was identifiable in Herron’s case because “[t]he defense theory of innocence [was] clearly reflected in the record.” Id. at 17.
C. Cumulative Error
Lastly, in ordering that the Defendant in Herron receive a new trial on the basis of the trial court’s multiple evidentiary errors, the Herron Court breathed life into the oft-ignored “cumulative error doctrine.” As the Tennessee Supreme Court has explained, “[t]he cumulative error doctrine exists to protect a criminal defendant’s state and federal constitutional right to a fair trial,” id. at 16, and it “embodies the idea that a multiplicity of errors—though individually harmless—may in the aggregate violate a defendant’s due process right to a fair trial.” Clark, 452 S.W.3d at 299. Stated differently, as the Tennessee Supreme Court observed in State v. Hester, 324 S.W.3d 1, 76 (Tenn. 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.”
In Hester, the Tennessee Supreme Court held that “circumstances warranting the application of the cumulative error doctrine to reverse a conviction or sentence [are] rare.” Id. Although the Herron Court stated as much once again – bluntly reiterating that “[r]eversals for cumulative error are rare” – by holding that the cumulative effect of the trial court’s errors in Herron demanded a new trial even though “defense counsel effectively pointed out the weaknesses in the State’s proof,” the Tennessee Supreme Court signaled its potential willingness to apply the cumulative error doctrine more consistently in future cases. Herron, 2015 WL 1361262, at 17.
Read the Tennessee Supreme Court’s opinion in State v. Herron – authored by Tennessee Supreme Court Associate Justice Connie Clark – here.
Questions about this article? Email Daniel Horwitz at [email protected]
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