Success at trial requires deliberate and detailed preparation well in advance of trial, combined with quick thinking in the heat of battle. To present your strongest case, you must know the rules of evidence and procedure, and be ready to object (and respond to objections) confidently and without hesitation.
Justice Helen E. Freedman* gives you the tools for success in her book, New York Objections. Consider, for example, this excerpt regarding cumulative evidence and the missing witness charge:
§ 6:60 Cumulative Evidence
Objection, Your Honor. Counsel is offering cumulative evidence [or] That evidence is cumulative.
Ordinarily a party should not “over try” a case by offering more than one witness on a particular subject. Problems with cumulative evidence usually occur when a party offers an expert to testify to the same matter that a previous expert already has discussed.
The decision to allow testimony is ordinarily within the sound discretion of the court. Cor Can. Rd. Co., LLC v. Dunn & Sgromo Engrs., PLLC, 34 A.D.3d 1364, 825 N.Y.S.2d 601 (4th Dept. 2006). If the witnesses offer different approaches, or if the evidence is duplicative in part but not in toto, the court usually will allow the cumulative evidence. Furthermore, it is extremely rare (if ever) to see a case reversed for allowing cumulative evidence. On the other hand, occasionally a case is reversed for having excluded evidence on the ground that it was cumulative. Shafran v. St. Vincent’s Hospital Medical Center, 264 A.D.2d 553, 694 N.Y.S.2d 642 (1st Dept. 1999).
The fact that a witness’ testimony would have been cumulative may serve as a defense to a request for a missing witness charge. A party is entitled to a missing witness charge when an uncalled witness, possessing information on a material issue, would be expected to provide noncumulative testimony in favor of the opposing party and is under the control of, and available to, the opposing party. Jackson v. County of Sullivan, 232 A.D.2d 954, 648 N.Y.S.2d 808 (3d Dept. 1996); see PJI 1:75 (missing witness instruction). However, the court may deny a request for a missing witness charge on the ground that the testimony of the witness would have been cumulative of testimony given by other experts (particularly where the “missing witness” was an examining or treating physician). Wilke v. NYCHH Corp., 274 A.D.2d 474, 711 N.Y.S.2d 29 (2d Dept. 2000); Baines v. City of New York, 269 A.D.2d 309, 703 N.Y.S.2d 463 (1st Dept. 2000).
- Object to any expert or evidence offered that duplicates previous evidence, on the ground that it is cumulative and unnecessarily time-consuming.
- Demonstrate that the evidence is duplicative, particularly if offered on rebuttal.
- Request that the testimony be limited to “new matter.”
Response to Objection
- Argue that the evidence is not cumulative or that it puts the testimony into a new context.
- Offer to limit the scope of the testimony to “new matter.”
In re Malik, 107 A.D.3d 447, 966 N.Y.S.2d 429 (1st Dept. 2013). In juvenile delinquency proceeding, court properly exercised its discretion in denying appellant’s request for an adjournment to call the psychologist and psychiatrist to testify, since their testimony would have been cumulative of their reports that were in evidence.
Adam K. v. Iverson, 110 A.D.3d 168, 970 N.Y.S.2d 297 (2d Dept. 2013). In a proceeding for court authorization to administer anti-psychotic medication over a patient’s objection, psychiatric facility’s director failed to show that the treating psychiatrist’s testimony would have been cumulative or counter to the professional relationship; thus, the court properly applied an adverse inference and denied the requested relief.
Mancuso v. Koch, 74 A.D.3d 1736, 904 N.Y.S.2d 832 (4th Dept. 2010). Contention that court erred in limiting plaintiff’s evidence concerning the alleged misrepresentation of defendant’s expert’s credentials was not supported in that counsel had full opportunity for cross-examination, and further evidence would have been cumulative.
Nimkoff v. Nimkoff, 74 A.D.3d 408, 902 N.Y.S.2d 65(1st Dept. 2010). In an acrimonious custody trial, trial court providently limited cumulative proffered witnesses and evidence.
Cor Can. Rd. Co., LLC v. Dunn & Sgromo Engrs., PLLC, 34 A.D.3d 1364, 825 N.Y.S.2d 601 (4th Dept. 2006). In a professional malpractice case, preclusion of expert witness testimony on the ground that it was cumulative was within the sound discretion of the trial judge.
Bennett v. Ferguson, 31 A.D.3d 356, 817 N.Y.S.2d 643 (2d Dept. 2006). Trial court properly precluded testimony of lay witness concerning observation that defendant appeared intoxicated, on grounds that it was cumulative.
Mayi v. 1551 St. Nicholas LLC, 6 A.D.3d 219, 774 N.Y.S.2d 528 (1st Dept. 2004). Defendant’s preclusion from calling a second pediatric neurologist was a provident exercise of discretion in case involving neurological impairment of an infant who ingested lead-based paint. Testimony would have been cumulative of other neurologist.
Missing Witness Charge
DeVito v. Feliciano, 22 N.Y.3d 159, 978 N.Y.S.2d 717 (2013). In motor vehicle, personal injury case, trial court erred in not giving missing witness charge on the ground that the uncalled witnesses’ (defendant’s examining physicians) testimony would be cumulative of opposing witnesses’ (plaintiff’s physicians) testimony. Testimony may only be considered “cumulative” when it is cumulative of testimony or other evidence favoring the party controlling the witness.
Wilke v. NYCHH Corp., 274 A.D.2d 474, 711 N.Y.S.2d 29 (2d Dept. 2000). In a medical malpractice case, failure to call an examining ophthalmologist did not warrant a missing witness charge where the testimony that the ophthalmologist might have been expected to give would have been covered by another expert and thus would have been cumulative.
Duncan v. Mount St. Mary’s Hospital of Niagara Falls, 272 A.D.2d 862, 707 N.Y.S.2d 564 (4th Dept. 2000). The trial court properly denied plaintiff’s request for a missing witness instruction with respect to defendant’s failure to call an expert witness, since the testimony of that expert would have been cumulative to that of another medical witness.
About the Author
Justice Helen E. Freedman has served as a trial judge since 1979, and in 1998 she received the Judicial Excellence Award of the State Trial Judges Conference of the American Bar Association. She has served on the Appellate Term, and served in the Commercial Division of the New York State Supreme Court for eight years. She was also the Mass Torts Judge in charge of all New York City asbestos personal injury and New York State silicone gel breast implant, latex glove, and diet drug cases. She is a founding member of the State Judges Mass Tort Litigation Committee. She was appointed to the Appellate Division, First Department, by Governor David Paterson in 2008.