Chad Oldfather and I are organizing a conference on criminal appeals at Marquette on June 15 and 16. I am very excited about the line-up speakers, which includes many leading criminal law and appellate process scholars from around the nation, as well as several state supreme court justices and other appellate judges. The full schedule, including links for registration, can be found here.
David Olofson loaned his Colt AR-15 rifle to Robert Kiernicki on several occasions. On one occasion, Kiernicki attracted some unwanted attention at the firing range when the gun produced three- and four-round bursts with each trigger pull. A complaint to the police resulted in an investigation that traced the weapon back to Olofson, who was charged in due course with knowingly transferring a machinegun in violation of 18 U.S.C. § 922(o). A jury convicted Olofson of this crime, and the judge imposed a sentence of thirty months in prison.
Olofson’s appeal centered on the jury instructions, specifically, the trial judge’s definition of “machinegun” as follows: “any weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.” Although this language came directly from the statutory definition of “machinegun,” Olofson argued that the judge should have further clarified what the term “automatically” meant based on Staples v. United States, 511 U.S. 600 (1994), in which the Supreme Court defined an automatic weapon this way: “[O]nce its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted.” Such a definition might have saved Olofson, for some of the evidence indicated that his gun jammed after shooting just three or four rounds — even if the “trigger [was not] released or the ammunition . . . exhausted.”
Olofson, however, was pretty clearly trying to give more weight to the Staples language than it could reasonably bear, and the Seventh Circuit held as much.
I’ve been reading a fascinating new article by Dan Blinka entitled “Why Modern Evidence Law Lacks Credibility.” (A draft can be downloaded from SSRN here.) Dan is exploring the clumsy handling of witness credibility issues in the rules of evidence. A major theme is the tension between, on the one hand, the teachings of modern psychology regarding the limited capacity of jurors to make accurate assessments of witness reliability and, on the other hand, a widespread public confidence in the ability of laypeople to judge credibility on the basis of “common sense.” In the conflict between expertise and common sense, Dan comes down on the side of the latter, emphasizing the importance of the common-sense approach in ensuring the legitimacy of trials.
I particularly enjoyed Dan’s recounting of a colorful early encounter between psychology and evidence law. In 1907, Hugo Münsterberg, a German psychology professor (pictured above), launched a “scientific” attack on the premises of Anglo-American evidence law. Taking up the gauntlet on behalf of the law was the legendary evidence professor John Henry Wigmore, who responded to Münsterberg with what Dan seems quite rightly to characterize as a “savagely brilliant critique.” Score: Law-1, Psychology-0.
Here is the abstract of Dan’s article: