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

Ch. 58 Hemphill v. New York

Samia v United States

FRE taking effect 12.01.23

FRE taking effect 12.01.23 with redlining and committee notes

2024 amendments as sent to the judicial conference

Summer 2024 Update Memo

Rule 106 Proposed Amendments

Rule 611 Proposed Amendments

Rule 613 Proposed Amendments

Rule 615 Proposed Amendments

Rule 702 Proposed Amendments

Rule 801(d)(2) Proposed Amendments

Rule 804(b)(3) Proposed Amendments

Rule 1006 Proposed Amendments

Teacher's Manual

Suggested Syllabi

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

Throughout the Book
We replaced generic pronouns with they/their/theirs, while retaining gender-specific pronouns in examples drawn from actual cases.

While maintaining our commitment to brief footnotes, we added references to several law review articles on timely subjects—particularly ones touching on how evidentiary rules interact with race, gender, and other characteristics of courtroom participants.

Chapter 2
We added a brief discussion on “informal” evidence that a jury might observe in the courtroom, and revised the section on photos and videos to clarify when they are real evidence and when they are demonstrative evidence. Both of these revisions appear on page 11.

Chapter 5
We changed two of the case examples that illustrate the “timely objection” and “specific grounds” requirements in Rule 103(a). The new examples avoid repetitive use of criminal drug cases and overuse of non-white criminal defendants in our examples. The new case examples are on pages 41-42 and 43.

Chapter 6
We omitted the discussion on “hindsight” because the example we used (a police shooting of an unarmed suspect) could be triggering for some students and the principle is not worth the lengthy explanation. We also omitted the discussion on “case-by-case determination” because application of that principle depends on specific doctrinal fields. We include material on these points in the Teacher’s Manual for instructors who want to raise them in class.

Chapter 9
We revised subsection C.3. to change it from “Negligence, Strict Liability, and Other Mental States” to “Contract Claims and Other Causes of Action” to reflect the fact that advocates increasingly invoke Rule 407 in breach of contract claims. We added an acknowledgement that the law in this area is evolving and added a flying fish icon to reflect that fact. We then split out the discussion of strict liability to its own subsection. These changes are on pages 96-97.

In subsection C.5, we deleted the reference to the small number of lower courts that previously applied Rule 407 to third party repairs, because the law in this area is now clearly settled to the contrary. The revised discussion is on pages 97-98.

Chapter 10
We changed the names in the hypotheticals on pages 109-111 from “Dirk Chaney,” “Hillary,” and “Barry,” since those references are outdated. We substituted the names “Paris” and “Lindsay,” under the theory that those references will never get old.

We combined the discussion of “disputed” and “claim” into one discussion of whether there is a “disputed claim” since this more accurately describes the current law and will be easier for students to understand. The change in our introduction of the subject takes place on pages 111-112, and we also changed the “In the Courtroom” subsection on pages 116-117 by replacing the Big O case with the Tyson’s Foods case. The latter more accurately describes the current state of the law.

Chapter 12
We updated the statistics on how many criminal cases are resolved with a plea bargain. The new statistics appear on page 137.

On page 139, we slightly altered the hypothetical to use the language that the defendant “was pressured to engage” in the crime rather than the original language that she had “good intentions” for her actions, since the former is more legally relevant for the case. We also changed the name of the defendant from “Sally Soprano” to “Beth Boland” to eliminate the outdated pop culture reference.

Chapter 18
Throughout the chapter, we changed our basic hypothetical from an example in which Barney strikes Betty with a golf club to one in which he steals a golf club, in order to avoid using a domestic violence example in what might be seen as an inappropriate way.

On page 235, we added a brief discussion on how linguistic differences may create an issue under Rule 613.

Chapter 20
We clarified the discussion on what constitutes a “crime of falsity” on pages 269-270.

We shortened the discussion on the time limit in Rule 609 on pages 270-271 and omitted the Linwood Gray example regarding violation of probation because the point was a bit too obscure for an introductory text. The Gray example appears in the Teacher’s Manual for instructors who want to use it as a classroom hypothetical.

We expanded the discussion critiquing Rule 609, added some citations to recent scholarship, and moved the discussion to the end of the chapter to give it more emphasis. The discussion is now on pages 272-273.

Chapter 30
We changed the title of the chapter from “Crimes, Wrongs, or Other Acts” to “Other Crimes, Wrongs, or Acts” to track the recent change in the title of Rule 404(b).

We revised the language of Rule 404(b) on page 356 to track the recent changes in language.

Throughout the chapter, we replaced the term “prostitute” with the less stigmatizing term “sex worker.”

Chapter 32
We point out on page 391 that the pre-Rule 412 case law was based in part on the outdated assumption that all rape victims are women.

We added a subsection that discusses issues of race and racial bias in the context of rape cases. The subsection is on page 405-406.

We revised and shortened our discussion of state rape shield laws in order to more accurately reflect the changing landscape of those laws. The new discussion is on page 406.

Chapter 33
We updated the number of states that have passed their own versions of Rules 413-415 on page 417.

Chapter 34
We shortened the discussion on Rule 104(b) and eliminated the Dowling example because it was too lengthy given the relatively minor point that it made. We include a discussion of Dowling in the Teacher’s Manual for instructors who still want to touch on the case in class.

Chapter 36
We added a new example, based on a 2020 South Carolina decision (State v. Prather), on pages 460-461. The case offers a dramatic example of an out-of-court statement that was not offered to prove the truth of the matter asserted.

Chapter 39
We revised the paragraph discussing judicial treatment of real memory loss under Rule 801(d)(1) to reflect the lack of precedent on this question. The revised discussion appears on page 494.

Chapter 40
We added timestamps as a way to demonstrate contemporaneity of a present sense impression (page 514).

Chapter 41
We further clarified the example involving Marc and the poisonous mushrooms (pages 523-24) because students struggle with these state-of-mind concepts. We also revised our brief discussion of Hillmon’s legacy in state courts (page 534) to state that courts are divided in their approach. Previous editions suggested that states favored Hillmon’s broad approach, but that no longer seems true.

Chapter 42
On page 538, we clarified how the business records exception works with the medical treatment one to ease the introduction of evidence about medical conditions.

Chapter 44
We revised the hypothetical example/analysis on page 568. The previous version described a police officer shooting an unarmed individual based on a third party’s representation that “he has a gun.” To reduce the emotional triggers in that example, we modified the hypothetical to describe an individual who injures her neighbor with a pair of hedge clippers. The names in this hypothetical evoke the Nancy Kerrigan/Tonya Harding incident connected to the 1994 Winter Olympics.

Chapter 46
On page 593, we note the established use of the “ministerial exception” in immigration cases.

Chapter 49
On pages 623-24, we expanded slightly our discussion of the reliability of former testimony, noting both the possibility of errors in written transcriptions (especially when a witness speaks with an accent or uses dialect) and the increased incidence of videotaped trials.

On page 626, we modified the discussion of “predecessor in interest” to note that some courts have construed that phrase narrowly—although most continue to apply a broader view.

Chapter 53
On page 668, we note that judges should consider power dynamics when deciding whether silence constitutes an adoptive statement.

Chapter 56
We rewrote this chapter to incorporate the 2019 amendments to Rule 807. The chapter, however, is substantially the same as the one we have been providing in our most recent summer supplements.

Chapter 58
The Supreme Court has not decided any Confrontation Clause cases since publication of the fourth edition, but the passage of time prompted us to make several small edits in this chapter:

• We reordered the discussion of nontestimonial statements on pages 727-29 to follow a more logical order. The content of those discussions has not changed.
• We edited the discussion of Williams slightly on pages 740-41 to indicate that most lower courts have adopted the narrow reading of the case we outlined in previous editions.
• We tightened our discussion of Clark on pages 742-43, focusing there on the case’s implications for statements to private parties. Further discussion of Clark now appears on pages 754-55, where we offer a slightly expanded discussion of “The Future of Crawford.”
• On page 751, we limited our assertions about an opposing party’s statements to statements offered under Rule 801(d)(2)(A), (B), and (E). It is not clear that the courts would treat statements of agents or authorized speakers as nontestimonial; there is little judicial authority on those categories. We note the uncertainty in the Teacher’s Manual, while limiting the casebook list to clear categories.
• On pages 751-52, we moved Business Records and Absence of a Public Record from the first category (exceptions that never raise Confrontation Clause issues) to the second one (exceptions that occasionally raise Confrontation Clause issues). New text explains how these occasional challenges could arise.

Chapter 61
We added a new example/analysis, based on United States v. Medley, on page 794 to expand our discussion of the “reasonable application” aspect of Rule 702.

Chapter 62
On pages 811-12, we replaced the example/analysis based on drug trafficking with one based on a case involving shipment of vaccines. This example adds timeliness and variety to the discussion, since we have several other examples drawn from drug trafficking prosecutions.

Chapter 64
We revised our discussion of polygraphs on pages 847-48 to reflect the fact that courts have become slightly more open to this evidence, although we continue to stress the difficulty of admitting this evidence in most courts.

Chapter 66
We rewrote our introduction to the privilege rules (page 859) to remind students that the rules refer to privileges in several places, although they do little to define any privileges.

Chapter 67
On page 879, we note the difficulties that many criminal defense lawyers face in finding locations to speak confidentially with their clients.

Chapter 68
We altered language on pages 893-99 to recognize that, although most federal courts recognize a “joint crime” exception to the spousal communications privilege, the circuits have split on whether to recognize that exception to the testimonial privilege.

On pages 904-05, we updated our discussion of the clergy-communicant privilege and replaced the example/analysis used to illustrate that privilege.

Chapter 71
We changed the example introducing this chapter (page 949) from an inference base on flight to one based on possession of a murder weapon.

Learn more about this series.