Cumulative Evidence
Definitions and interpretations
• Cumulative evidence is evidence which tends to prove that which has already been established.
Newell v. State, 478 N.E.2d 1246, 1250 (Ind. Ct. App. 1985)(citing Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983))
See Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983)(quoting Black's Law Dictionary 343 (5th ed. 1979))(“Cumulative evidence is ‘[t]hat which goes to prove what has already been established by other evidence.’”)
• Cumulative evidence is “‘[a]dditional evidence that supports a fact established by the existing evidence (especially that which does not need further support).’”
In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007)(quoting Witte v. Mundy ex rel. Mundy, 820 N.E.2d 128, 135 (Ind. 2005))(quoting Black’s Law Dictionary 596 (8th ed. 2004)))
Bunch v. State, 964 N.E.2d 274, 290 (Ind. Ct. App. 2012), reh’g denied, trans. denied(quoting In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007))
• Additionally, to be considered cumulative, evidence should be of the same kind or character.
In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007)
Bunch v. State, 964 N.E.2d 274, 290 (Ind. Ct. App. 2012), reh’g denied, trans. denied(quoting In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007))
See Zouker v. Wiest, 42 Ind. 169, 170 (Ind. 1873)(citation omitted)(“Cumulative evidence is evidence of the same kind, and to the same point, as that already or previously given in the cause.”)
See also Lefever v. Johnson, 79 Ind. 554, 557 (Ind. 1881)(quoting Winsett v. State, 57 Ind. 26, 29 (Ind. 1877))(“Cumulative evidence has been defined to be evidence ‘of the same kind, and to the same point.’”)
• That is, evidence will not be considered cumulative if “[i]t tends to prove the same facts, but in a materially different way.”
In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007)(quoting Union Cent. Life Ins. Co. v. Loughmiller, 69 N.E. 264, 266 (Ind. Ct. App. 1903), reh’g denied, trans. denied)
Bunch v. State, 964 N.E.2d 274, 290 (Ind. Ct. App. 2012), reh’g denied, trans. denied(quoting In re Paternity of H.R.M., 864 N.E.2d 442, 451 (Ind. Ct. App. 2007))
Admissibility of cumulative evidence: General rules
• [Cumulative] evidence is not inadmissible per se.
Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983)(citing Hyde v. State, 451 N.E.2d 648, 650 (Ind. 1983))
• The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.
Evid. R. 403(emphasis added)
• For more information on relevant evidence and Indiana Evidence Rule 403, please review Relevancy.
Admissibility of cumulative evidence: Interpretations of the general rules
• Relevant evidence may be excluded if its probative value is substantially outweighed by the needless presentation of cumulative evidence.
Boyd v. State, 866 N.E.2d 855, 858 (Ind. Ct. App. 2007), trans. denied(citing Evid. R. 403)
See Morse v. Davis, 965 N.E.2d 148, 159 (Ind. Ct. App. 2012), trans. denied(“Rule 403 . . . provides in relevant part that, although relevant, evidence may be excluded if its probative value is substantially outweighed by the needless presentation of cumulative evidence.”)
• Relevant evidence will not be rejected simply because it is cumulative, even though it may be inflammatory; Feller v. State, 348 N.E.2d 8, 13 (Ind. 1976), although it should be excluded if its potential to prejudice the jury improperly outweighs its probative value, Carroll v. State, 338 N.E.2d 264, 274 (Ind. 1975)(Prentice, J., concurring).
Hyde v. State, 451 N.E.2d 648, 650 (Ind. 1983)
• The test is one of balance.
Hyde v. State, 451 N.E.2d 648, 650 (Ind. 1983)(citing Akins v. State, 429 N.E.2d 232, 236 (Ind. 1981), reh’g denied)
• [P]rejudice resulting from repetitive evidence is even less likely to occur in a bench trial than in a jury trial.
Fowler v. State, 929 N.E.2d 875, 880-81 (Ind. Ct. App. 2010), trans. denied(citing Roop v. State, 571 N.E.2d 568, 570 (Ind. Ct. App. 1991), reh’g denied, trans. denied)
Discretion of the trial court
• The admission of cumulative evidence is within the discretion of the trial court.
Schaefer v. State, 750 N.E.2d 787, 793 (Ind. Ct. App. 2001)(citing Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983))
See Davis v. State, 635 N.E.2d 1117, 1123 (Ind. Ct. App. 1994)(“Admission of cumulative evidence is within the discretion of the trial court and, absent prejudice, is not error.”)
Examples from case law
• Evidence relevant to illustrate the testimony of witnesses is admissible although it is cumulative.
Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983)(citing Feller v. State, 348 N.E.2d 8, 13 (Ind. 1976))
• Photographs depicting the victim's injuries or demonstrating a witness's testimony are generally admissible and will not be rejected merely because they are gruesome or cumulative.
Duncan v. State, 735 N.E.2d 211, 213 (Ind. 2000)(citing Harrison v. State, 699 N.E.2d 645, 647 (Ind. 1998))
Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003)(citing Wright v. State, 730 N.E.2d 713, 720 (Ind. 2000))(“Photographs depicting the victim's injuries or demonstrating a witness' testimony are generally relevant[,] therefore admissible[,] and will not be rejected merely because they are gruesome or cumulative.”)
• To the extent that [the nurses’ and doctors’] notes reflect what [the victim] told them, the statements contained in the medical records are cumulative evidence of what [the victim] testified happened to her and what she told the nurses and doctors.
Schaefer v. State, 750 N.E.2d 787, 792-93 (Ind. Ct. App. 2001)