Learning Evidence: From the Federal Rules to the Courtroom

Deborah Jones Merritt, Ohio State University College of Law

Ric Simmons, Ohio State University College of Law

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Table of Contents

Preface

This document summarizes the substantive differences between the fifth and sixth editions of Learning Evidence. The chapter numbers are the same in both editions. References to page numbers are to the sixth edition.

Study Guide
We updated the references to the study aids that are available with the book, including the skills exercises on the eProducts bookshelf. This reference is on page xxxiii.

Chapter 2
We updated the section on demonstrative evidence to reflect the new Rule 107 on illustrative aids, and explained the difference between the two concepts. We also clarified the explanation of judicial notice. These changes are on pages 10-13.

Chapter 5
We deleted a jury instruction example that used the old definition of demonstrative evidence.

Chapter 12
We updated the statistics on the prevalence of plea bargaining. The statistics are on page 139.

Chapter 15
We updated the material on sequestration of witnesses to reflect the amendment to Rule 615, which allows judges to prohibit anyone from disclosing trial testimony to prospective witnesses. These changes are on pages 195-197.

Chapter 17
We clarified the language on different methods of impeachment by creating a taxonomy for the different tactics. These clarifications are on pages 216-217.

Chapter 18
We updated the discussion of Rule 613(b), which governs extrinsic evidence of a witness’s prior inconsistent statement, to reflect a recent amendment to that rule. The rule now requires counsel to give the witness an opportunity to explain or deny the statement before admitting the statement. This change is on page 233.

Chapter 24
We updated the material on the rule of completeness to reflect an amendment to Rule 106 which clarifies that (1) the rule applies to oral statements as well as written statements; and (2) evidence can be admitted under this rule even if it is hearsay. These changes are on page 296.

Chapter 36
We made several changes to clarify the facts in our hypothetical involving Lisa, Greg, and a crime committed in a law school auditorium. This hypothetical, which explores the meaning of “truth of the matter asserted,” appears throughout the chapter.

Chapter 37
We clarified our discussion of non-assertive conduct to note that, although courtroom testimony about that conduct does not violate the rule against hearsay, the conduct may have low probative value. An opponent may use cross-examination to raise questions about the conduct’s meaning. This discussion appears on pages 463-64 and 466.

Chapter 51
We updated this chapter to include an amendment to Rule 804(b)(3), the hearsay exception for statements against interest, that took effect on December 1, 2024. The amendment codified judicial decisions holding that corroboration includes both circumstances suggesting the declarant’s trustworthiness and independent evidence substantiating the declarant’s claim. Our chapter already discussed those judicial decisions so no further changes were necessary. The amended rule appears on page 640, and our updated discussion of the corroboration requirement is on pages 645-47.

Chapter 53
The changes in this chapter reflect two recent amendments to the federal rules. First, we explain the impact of changes to Rule 106 (discussed in Chapter 24) on the admission of out-of-court statements by an opposing party. Reflecting those changes, we omitted an example based on United States v. McDaniel and created a new example that illustrates the impact of amended Rule 106. This discussion appears on pages 660-61.

Second, we discuss an amendment to Rule 801(d)(2), the hearsay exemption for statements of an opposing party. This amendment extends the exemption to statements made by a party’s predecessor if the “party’s claim, defense, or potential liability is directly derived from” that predecessor. The amended rule language appears on page 659 and we discuss that language on pages 669-70.

Chapter 54
In Samia v. United States (2023), the Supreme Court provided new directions for redacting the statement of a codefendant to comply with Bruton v. United States. We rewrote Section D.2 of this chapter, which focuses on redacted statements, to incorporate the ruling in Samia. The rewritten section appears on pages 682-85.

Chapter 58
The Supreme Court’s Confrontation Clause jurisprudence continues to evolve. In Smith v. Arizona (2024), the Court resolved some of the uncertainty regarding the admissibility of laboratory reports written by a non-testifying technician. In Section C.2.b, we replaced much of our discussion of Williams v. Illinois with the Court’s new pronouncements in Smith. The updated material appears on pages 738-41. We also modified our discussion in Section F (The Future of Crawford) to reflect the Court’s apparent direction after Smith. This section appears on pages 754-55.

Chapter 61
The Supreme Court approved two amendments to Rule 702, which governs testimony by expert witnesses. First, the amended rule clarifies that the proponent of expert testimony bears the burden of persuading the trial judge that the proposed evidence more likely than not meets the requirements laid out in the rule. Second, revised language in subsection 702(d) stresses the need for expert witnesses to restrict their opinions to a “reliable application” of their “principles and methods.” The amended rule appears on page 784, and we made slight changes throughout the chapter to reflect the amendments.

Chapter 63
In Smith v. Arizona, discussed in Chapter 58, the Supreme Court explored Confrontation Clause limits on the bases of expert testimony. The Smith opinion provides more definitive guidance on this issue than the Court’s earlier opinion in Williams. We updated the discussion of the Confrontation Clause in this chapter to refer briefly to Williams and focus on Smith. This material appears on pages 824-28.

Chapter 64
The Supreme Court adopted a narrow reading of Rule 704(b), which prohibits expert witnesses from offering opinions about a criminal defendant’s mental state, in Diaz v. United States (2024). The Court’s opinion is consistent with lower court opinions that we previously explored in this chapter. For the sixth edition, we replaced those opinions with a discussion of Diaz on pages 834-36.

Chapter 68
We eliminated our discussion of executive privilege because that privilege warrants more extended treatment in courses on executive power. We also updated our discussion of the clergy communicant privilege on pages 896-98 to use the privilege’s contemporary name of a privilege for spiritual counseling.

Chapter 70
Rule 1006 has been amended to provide that illustrative aids subject to new Rule 107 (discussed in Chapter 2) rather than this rule. We include that amendment and discuss it briefly on pages 933-34.

Chapter 72
We modified our discussion of Peña-Rodriguez, which recognized a Sixth Amendment exception to Rule 606(b) for evidence of juror statements “exhibiting over racial bias,” to note on page 963 that no federal court has yet extended that ruling to other types of bias.

Learn more about this series.