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Cumulative Error
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Cumulative Error
Non Constitutional Errors
Non constitutional errors cannot get aggregated to establish deficient performance or prejudice. See Anderson v. Commissioner, 148 Conn. App. 641, 644-46 (2014); see also Diaz v. Commissioner, 125 Conn. App. 57, 72 (2010), cert. denied, 299 Conn. 926 (2011); Adorno v. Commissioner, 66 Conn. App. 179, 195 n.7, cert. denied, 258 Conn. 943 (2001); but see Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)
([I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts”).
Constitutional Errors
Whether constitutional errors can get aggregated to find deficient performance and prejudice and thus ineffective assistance of counsel, has not gotten decided in Connecticut. However, federal authority supports the conclusion that such errors can get aggregated to satisfy Strickland. First, Strickland itself states that a petitioner, “must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. If each error had to get assessed separately to determine prejudice, there would be no reason for the Supreme Court to refer to errors in the plural.
Second, in Murray v. Carrier, 477 U.S. 478 (1986), the Supreme Court stated that, “the right to effective assistance of counsel…may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial.” Id. at 497. If ineffective assistance of counsel can stem from an isolated error, then it follows that ineffective assistance of counsel can stem from multiple errors.
Third, the Second Circuit held in Lindstadt v. Keane, 239 F.3d 191, 199 (2 nd Cir. 2001): “We need not decide whether one or another or less than all of these four errors would suffice, because Strickland directs us to look at the ‘totality of the evidence before the judge or jury,’ keeping in mind that ‘[s]ome errors [] have…a pervasive effect on the inferences to be drawn from the evidence, altering the evidentiary picture…’ Id. at 695-96. We therefore consider these errors in the aggregate. See Moore v. Johnson, 194 F.3d 586, 619 (5th Cir. 1999)(holding that court should examine cumulative effect of errors committed by counsel across both the trial and sentencing)[.]”
Cumulative Errors
Citing Lindstadt, the Second Circuit concluded in Pavel v. Hollins, 261 F.3d 210, 216, 225-28 (2nd Cir. 2001), that the cumulative weight of trial counsel’s constitutional missteps established deficient performance and that the defense was prejudiced. Thus, errors by counsel that are of constitutional dimension can and should be aggregated to establish deficient performance and prejudice under Strickland. A concise discussion of “cumulative error” can be found in J. Burkoff & N. Burkoff, Ineffective Assistance of Counsel (2012 Ed.), § 5:29, et seq.
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