(dissenting).
[¶ 31.] I dissent because the trial court abused its discretion by not admitting pri- or acts evidence offered by Jolley and by not allowing the Defendant to question Luthy regarding the details of the sentence she faced prior to her plea agreement. These things taken together amount to cumulative error and the conviction should be reversed to allow Defendant a fair trial.
[¶ 32.] The majority opinion states in the footnote on page 308 that this Court has “declined to adopt [a] more liberal standard” with regard to prior bad acts evidence offered by criminal defendants. This is a misstatement of our opinion in White, where we stated, “[s]ince White does not meet even the test of simple relevance, there is no need at this time to decide whether to adopt this rule.” State v. White, 1996 SD 67, ¶ 16, 549 N.W.2d 676, 681. White left the door open to the possibility that this Court would consider whether to adopt a more liberal standard, and we should do so in this case.
[¶ 33.] When an individual criminal defendant is pitted against the State with all of its resources, he is at a distinct disadvantage. Thus, our rules of criminal procedure and evidence were enacted and intended to level the playing field so that he may have a fair trial. Our cases have rendered SDCL 19-12-5 powerless as a shield to protect defendants from prejudicial testimony. Now, despite the fact that this statute has become a powerful sword for the State, the Court denies defendants the same latitude in offering prior acts evidence. This does nothing to level the playing field; on the contrary, it tilts the field in favor of the State. Must the State always have the wind at its back and in the face of the defendant?
• [¶ 34.] The purpose of SDCL 19-12-5 is to prevent the jury from inferring from prior acts that the defendant committed the crime charged. The prejudice created by allowing introduction of prior bad acts to show propensity on the part of the defendant to commit the crime charged is so great it denies the defendant a fair trial. This purpose is not served by denying the criminal defendant the ability to introduce evidence of other acts by the State’s witnesses.
[¶ 35.] The theory of the defense was that it was Luthy, rather than Defendant, who committed the abuse leading to the child’s death. To that end, in the interest *313of providing him with a fair trial, the trial court should have allowed Jolley to present all evidence relevant to that theory. At trial, the State characterized Defendant as a “muscle builder” and “the person who had the strength to do this.” The testimony offered by Defendant was relevant and probative to the State’s position that Lu-thy was incapable of committing the acts against the child. Therefore, it was relevant and probative that Jolley was not the only party capable of the severe and fatal abuse.
[¶ 36.] “Relevance” is defined as evidence having any tendency to make the existence of a fact more or less likely. SDCL 19-12-1. This Court has been very clear that it construes the question of relevancy very liberally. For example, we recently stated,
[t]he law favors admitting relevant evidence no matter how slight its probative value ... ‘It is sufficient that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence.’
State v. Bunger, 2001 SD 116, ¶ 11, 633 N.W.2d 606, 609 (quoting Larson, § 401.1 p. 109) (emphasis in the original). Based on our precedent, the evidence offered by Jolley meets the threshold requirement of relevance. We should adopt the rule of other courts which permits admission of such relevant evidence by the defense because denying the use of the evidence on the grounds of “prejudice” defies common sense.
[¶ 37.] In State v. Fulston, the New Jersey appellate court was faced with a similar factual scenario. A small child was beaten to death. There were only two adults with access to the child at the time he was fatally abused, and the defendant claimed that the State’s primary witness was the one who committed the crime. The court noted that the purpose of excluding prior acts that show propensity was “grounded in [the evidence’s] distinct capacity to prejudice the accused.” 325 N.J.Super. 184, 738 A.2d 380, 383 (A.D.1999). The court concluded:
when the defendant offers proof of that kind exculpatorily, prejudice to the defendant is no longer a factor. More specifically, there is no danger that the jury will convict the defendant of the crime being tried merely because of his sordid, criminal past.
Id. Thus, if the evidence offered by the defendant is relevant as to guilt or innocence of the conduct charged, it should be admitted. Id.
[¶ 38.] Adopting this test will promote the purpose of SDCL 19-12-5 and provide the Defendant his constitutional rights to confront witnesses and receive a fair trial. Additionally, this rule makes sense. The important question in this case is who would be prejudiced by introduction of this evidence? Luthy could not be convicted of the crime based on this testimony, so there is no prejudice to her. The only detrimental effect against the State would be that the testimony may raise a reasonable doubt in the minds of the jurors. This, of course, is not unfair prejudice, but properly puts the State to its burden of proving every element beyond a reasonable doubt.
[¶ 39.] The trial court also abused its discretion in denying Jolley the opportunity to cross examine Luthy regarding the sentence she faced prior to her plea agreement. Jolley’s Sixth Amendment right to confront the witnesses against him was violated when he was prevented from fully exploring Luthy’s credibility and bias. The primary means by which a defendant can test the credibility and bias of a witness is through cross examination. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974). The *314Supreme Court has stated that a defendant raises a confrontation clause violation by showing,
that he was prohibited from engaging in otherwise appropriate cross examination designed to show a prototypical form of bias on the part of the witness, and thereby “to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.”
Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986) (quoting Davis, 415 U.S. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355).
[¶ 40.] Prior to her plea agreement, Luthy was facing a murder charge and a substantially greater sentence than the one she faces under her plea agreement. The central issue in any plea agreement is the sentence. Denying Jolley the opportunity to inquire fully into this issue denied him the ability to address the most important aspect of the plea agreement. Jolley was unable to develop the depth of bias this witness carried with her to the stand, and the result is that his right to confront this witness was violated.
[¶ 41.] The cumulative effect of errors by the trial court may support a finding of 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). This trial was a credibility contest between Luthy and Jolley; the only two people who could have committed this heinous crime. While allowing the State to introduce prior acts testimony (from Luthy’s mother) against the Defendant, the trial court denied the Defendant evidence of Luthy’s prior acts. The trial court compounded this prejudice by preventing Jolley from effectively cross examining Luthy about her bias. These decisions, taken together, constitute cumulative error and we should reverse and remand for a fair trial.