When is an Error Not an 'Error'? Habeas Corpus and Cumulative Error Analysis

Abstract

This article first addresses the question of whether courts should consider cumulative error analysis in habeas corpus cases, or whether the Eighth Circuit Court of Appeals is correct that each error must stand on its own. After concluding that cumulative error analysis should be a cognizable issue in habeas corpus petitions, the question of whether courts should employ a different standard for habeas petitions alleging cumulative error is addressed. Emphasis is placed on the Fifth Circuit case, Derden v. McNee and. that court's rationale for imposing limitations on habeas corpus petitions alleging cumulative error. The Fifth Circuit's four-prong test for evaluating petitions alleging a due process violation based on the cumulative effect of "errors" is critiqued. Finally, this article proposes a standard for cumulative error analysis that more carefully defines "error" and suggests that habeas corpus counsel point to specific legal standards violated by the alleged error. This standard requires that federal courts consider a broader range of "errors" as well as the relationship among the errors, in order to evaluate whether a trial was fundamentally unfair.

Keywords: Cumulative error, habeas corpus review, errors in criminal trial, harmless error