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State v. Van Kirk9/6/2001
(1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, is inarguably more restrictive than the "overwhelming evidence" test. However, we believe its application, modified to incorporate the qualitative standards we set forth below, will bring us closer to gauging the potentially prejudicial impact of the tainted evidence than the "overwhelming evidence" test has done in the past.
In making its proof under the "cumulative evidence" standard, the State must direct us to admissible evidence that proved the same facts as the tainted evidence. Moreover, the State must also demonstrate that the quality of the tainted evidence was such that there was no reasonable possibility that it might have contributed to the defendant's conviction. By way of example only, assume a case where the defendant is charged with armed robbery of a liquor store. At trial, the police officer repeats the statements of an unidentified, non-testifying store patron to the effect that the defendant was present in the liquor store at the time of the offense. The State may be able to demonstrate that there is no reasonable possibility that this inadmissible hearsay evidence might have contributed to the defendant's conviction, where the defendant's admission to investigators that he was, in fact, present in the store at the time of the offense merely to purchase alcohol, was properly admitted. On the other hand, if the tainted evidence is the admission of the defendant's involuntary confession to the robbery, the State would be hard-pressed to demonstrate that, qualitatively, there is no reasonable possibility that this evidence might have contributed to the defendant's conviction, even though there was other evidence tending to prove that the defendant committed the crime.
We readily acknowledge that there will be cases in which there was no other admissible evidence proving the same facts that the tainted evidence proved, making the burden of producing cumulative evidence of the fact impossible. Clearly, if the only evidence tending to prove an element of the crime is tainted, then reversal will be compelled. Assume, for example, that the accused is charged with robbery under § 45-5-401(1)(b), MCA. The only evidence of the defendant's threat to inflict bodily injury on the liquor store clerk (the threat being an essential element of the crime charged) is the repetition by the investigating officer of the hearsay statement of a non-testifying witness. Under this circumstance, the threat element was proven only by inadmissible evidence. That element having not been proved by other admissible evidence, the error in admitting the tainted evidence cannot be harmless as a matter of law, and reversal is compelled.
However, in those cases where the tainted evidence does not go to the proof of an element of the crime charged, and there is no other admissible evidence tending to prove the particular fact at issue, the admission of the tainted evidence will be deemed harmless only if the State demonstrates that no reasonable possibility exists that the admission of the tainted evidence might have contributed to the defendant's conviction. Again, by way of example, suppose the State offers evidence in a DUI case that the defendant is a convicted child molester. As there would be no other admissible evidence which would prove this fact, and since the tainted evidence does not go to the proof of an element of DUI, the State would have to demonstrate that, qualitatively, there was no reasonable possibility that the tainted evidence might have contributed to the defendant's conviction--a virtually impossible burden to carry, given the highly inflammatory nature of child molestation evidence. If, on the other hand, the tainted evidenc
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