Tag Archives: Prior Consistent Statements

Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.

By Daniel A. Horwitz

[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). Continue reading Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.