Sixth Circuit Nixes Defendant's Criminologist

There is less debate than there should be about whether "criminology" represents an intellectually rigorous field of inquiry whose methods could withstand close Daubert scrutiny. Maybe the polity's seeming goal of zipless incarceration would be frustrated if searching questions were asked. For whatever reason, scrutiny certainly does seem to intensify when such testimony is offered by a criminal defendant. Illustrative is the Sixth Circuit's decision, yesterday, in United States v. Olender, No. 01-2426 (6th Cir. Aug. 1, 2003). Charged with possession of ammunition by a felon, the defendant offered up a criminologist, who proposed to offer his own spin on the police investigation and the significance of the evidence it generated. The district court concluded that fact witnesses with direct personal knowledge bearing on the elements of the crime would do, and also refused to let the criminologist state his views in the form of lay opinion. The Sixth Circuit cursorily upheld the trial court's decision.

Initially, the exclusion of such testimony may seem eminently sensible. Who may be the true owner of ammunition discovered in a household would seem a question falling well within the competence of an average juror, and it probably just introduces confusion, to allow "expert" commentary on relatively uncomplicated factual evidence that jurors can easily interpret for themselves. Still, that line of reasoning does not appear to enjoy much currency, when law enforcement officers testify as experts for the prosecution.

In the Olender case, any error in excluding the defendant's criminological testimony may have been harmless. After the defendant allegedly advised coworkers that he intended to kill his supervisor and several fellow employees, police executed a search warrant at his home, and found:

--Two disassembled FNFAL Steyr assault weapons kits, complete except for a part known as a "receiver."

--A receipt for one of the FNFAL Steyr assault weapons, which indicated the kit was shipped to Kevin Olender, 2312 23rd Street, Wyandotte, Michigan.

--938 rounds of 9-mm ammunition.

--800 rounds of 7.62 ammunition.

--12 high-capacity magazines which accommodated 7.62 ammunition.

--One box of 12-gauge shotgun shells.

--48 high-speed "strip clips" for loading 7.62 ammunition, along with bandoliers for carrying the loaded strip clips.

But the feds charged Olender only after a state jury acquitted him, so maybe there is more reasonable doubt here than meets the eye.

A summary of the Sixth Circuit's ruling, and a link to the opinion, can be found here.