concurring in part and dissenting in part.
[¶ 54.] Dawn Frazier was thirty-one years old at the time of her arrest. She has no prior convictions. As a result of the jury’s verdict she was sentenced to two counts of life imprisonment without parole. This jury verdict was supported by the improper out of court statements and an improper instruction on flight. The majority opinion recognizes error in both respects: 1.) the circuit court erred by admitting into evidence the out of court statements of Jerry Horse; and 2.) the circuit court erred in giving the jury instruction on flight. Additionally, the majority opinion unnecessarily addresses the sufficiency of the evidence to support these reversed convictions. I address each error in turn and then their cumulative impact.
[¶ 55.] 1. SUFFICIENCY OF THE EVIDENCE.
[¶ 56.] The majority opinion conducts a review of the sufficiency of the evidence. It is well settled that the double jeopardy clause “does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to his conviction.” Parker v. Norris, 64 F.3d 1178, 1181 (8th Cir.1995) (quoting Lockhart v. Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 289, 102 L.Ed.2d 265 (1988). Yet, there is one important excep*263tion to this rule: retrial is barred if we find that the evidence was legally insufficient. Id.; Woodall v. U.S., 72 F.3d 77, 78 (8th Cir.1995). However, it is not even necessary to discuss the issue.
[¶ 57.] Frazier’s conviction has been reversed for a constitutional evidentiary error, a classic example of “trial error” that does not trigger the double jeopardy prohibition. See Jacob v. Clarke, 52 F.3d 178, 180 (8th Cir.1995). “It is undisputed that the Double Jeopardy Clause does not bar retrial after appellate reversal for trial error.” Satter v. Leapley, 977 F.2d 1259, 1263 (8th Cir.1992). This line of cases does not require us to consider the sufficiency of the evidence and I respectfully submit that it is of no benefit to the bench or bar to do so. The discussion of the sufficiency of the evidence should be completely omitted.
[¶ 58.] 2. JURY INSTRUCTION ON FLIGHT OR CONCEALMENT.
[¶ 59.] I concur with the majority opinion that it was error to give a flight instruction on these facts. Instructions on flight should be cautiously applied. State v. Menard, 424 N.W.2d 382, 384 (S.D.1988). The simple act of leaving the scene of a crime does not satisfy the requirements necessary to warrant a flight instruction. There must be something more. An affirmative act to avoid apprehension is required to permit such an instruction. State v. Hutchinson, 139 N.C.App. 132, 532 S.E.2d 569, 574 (2000); Mitchell v. State, 876 P.2d 682, 685 (Okl.Crim.App.1994).
[¶ 60.] The majority opinion concludes that this instruction did not affect the verdict and therefore Frazier suffered no prejudice. Yet, this jury instruction empowered the jury to consider evidence of this nonexistent flight to prove “consciousness of guilt.” The constitutionally and statutorily mandated instructions on the “presumption of innocence” and “proof beyond a reasonable doubt” that the majority opinion relies upon to offset the prejudice of these errors in effect proves the point. This errant instruction cannot be viewed as harmless when it highlighted to the jury evidence which was improperly categorized and presented as evidence of guilt. In fact, the defect in giving an improper “flight” instruction is that it improperly relieves the State of the burden to prove guilt “beyond a reasonable doubt” and throws out the “presumption of innocence.” We have recently unanimously reversed under somewhat similar “downplaying” of these two key instructions.13 State v. Nelson, 1998 SD 124, ¶ 20, 587 N.W.2d 439, 447.
[¶ 61.] The force behind our statement that these instructions should be used sparingly is suspect under the majority opinion. By refusing to find reversible error in this instance, perhaps the most egregious example of the improper use of a flight instruction, we are tacitly approving the use of such instructions throughout the state. In light of the apparent unanimous agreement of this Court that Frazier’s conduct does not constitute flight, this proposition seems remarkable. I refuse to join the majority opinion’s failure to find harmful error, despite its recognition that “[t]o endorse the use of a flight instruction every time a defendant leaves the scene of a crime would contradict the warning we issued in Menard, that the instruction should be used ‘sparingly.’ Indeed, the instruction would become part of nearly every criminal trial except where the accused was apprehended at the scene.” This strongly worded warning constitutes a mere suggestion if we encourage this reworked instruction on flight.
[¶ 62.] 3. CUMULATIVE IMPACT.
[¶ 63.] The majority opinion fails to appreciate the cumulative effect of these errors and their resulting prejudice which *264affected the fairness of Frazier’s trial. “We have previously held that the cumulative effect of errors by the trial court may support a finding by the reviewing court of a denial of the constitutional right to a fair trial.” State v. Davi, 504 N.W.2d 844, 857 (S.D.1993); McDowell v. Solem, 447 N.W.2d 646, 651 (S.D.1989). Moreover, this Court may address a constitutional issue sua sponte. State v. Beck, 2000 SD 141, ¶ 15, 619 N.W.2d 247.
[¶ 64.] We have recognized that a “snowball effect” of the errors at trial may deprive a defendant of a fair trial. Jenner v. Leapley, 521 N.W.2d 422, 432 (S.D.1994). How can one agree with the majority opinion that the errors at trial were nonprejudicial. The cumulative effect of the errors which occurred during Frazier’s trial denied her right to a fair trial. See State v. Jahnke, 353 N.W.2d 606, 611 (Minn.App.1984) (reversing Jahnke’s conviction and remanding for a new trial based on prose-cutorial misconduct).
[¶ 65.] Viewing the errors at Frazier’s trial in isolation may lead some to conclude that they were not sufficiently prejudicial, yet that is not the consideration. “Our system of criminal justice is founded on the twin cornerstones of fairness and proof beyond a reasonable doubt.” Dillon v. State, 311 Ark. 529, 844 S.W.2d 944, 949 (Ark1993). The Supreme Court of Arkansas correctly characterized the majority opinion’s fallacy:
It might be that alone the discrepancies in this case would not amount to prejudicial error. However, when considered together, we must conclude that the almost total disregard of the Rules cannot be ignored. What it all comes down to is where do we draw the line? We draw the line here.
Id. at 948.
[¶ 66.] In summary, the errors that occurred at trial, viewed cumulatively, denied Frazier her right to a fair trial as required by our constitutions. To jealously guard the integrity of our judicial system, a new trial is required. Two significant errors stand out. Frazier was denied the ability to contest the out-of-court accusations made by a man on the run from the law, in violation of her constitutional right to confront her accuser. Additionally, the jury was allowed to improperly consider the fact that she left the scene of the crime as “consciousness of guilt.” The majority opinion recognizes both as clear eiTor.
[¶ 67.] The circuit court sentenced Frazier to life imprisonment for her passive participation in the “kidnapping” and murder of Standing Bear. In every case, we are mindful of the impact a sentence can impose on all parties involved. However, we must insure that evei'y pi’otection that the law can muster is utilized to achieve the integiity of our judicial system. Such protections are not intended to impede the call of justice. Instead, such protections are designed to insure that each citizen is given the opportunity to contest the charges brought against them. As Frazier’s conviction does not meet this rigorous standard, I dissent.
[¶ 68.] Therefore, I would reverse and remand for a new fair trial and eliminate entirely the unnecessary discussion of the sufficiency of the evidence.
[¶ 69.] AMUNDSON, Justice, joins this special writing.
. In Nelson, we reversed and remanded for a new trial when the trial court failed to include and repeat the instructions on "proof beyond a reasonable doubt” and the “presumption of innocence” at the end of the case. The facts of this case are even more egregious.