The prosecution has rested its case and the defense has started calling its witnesses. As the trial nears jury deliberation, here are seven things to know about the State of Wisconsin v. Kyle Rittenhouse.
What won’t be central to the trial: Jacob Blake, the Second Amendment, racial justice
Much of the reporting around Rittenhouse has highlighted the big issues his trial raises around police shootings, gun rights and racial justice. The trial, however, is much more narrowly focused on a set of facts.
“What’s not being assessed is whether the shooting of Mr. Blake [was] justified. Nor will Second Amendment rights, outside of a limited sense, be litigated,” said Keith Findley, a former public defender and University of Wisconsin law professor.
At its core, the trial hinges on Rittenhouse’s self-defense claim. The defense will aim to persuade jurors that Rittenhouse’s actions were justified in the legal sense: That he had “reasonable” fear he would be killed or suffer significant injury, and that he responded to the alleged threat in a reasonable way.
“At the end of the day the day, the facts and the incident are a fairly narrow inquiry,” said Juliet Sorensen, a former federal prosecutor who now teaches at Northwestern Law.
Rittenhouse’s top charges are murder by another name
Rittenhouse is charged with reckless and intentional “homicide.”
“It’s just a language choice,” said Findley, the Wisconsin law professor. “There is no more serious murder charge in Wisconsin than first-degree intentional homicide," Rittenhouse’s most serious charge, which he faces for killing Huber. "Substantively, it’s the same as a first-degree murder charge.”
Rittenhouse faces a reckless homicide charge for killing Rosenbaum, and a charge of attempted first-degree homicide for shooting Grosskreutz. He also faces two felony charges of recklessly endangering safety and a misdemeanor charge for possession of a dangerous weapon by a person under 18.
Legal experts (and reporters) tend to use the language as worded in the state statute. Since Wisconsin doesn’t call the charges murder, the legal documentation and much of the reporting follows that lead.
Wisconsin gun laws likely offer Rittenhouse little cover
Rittenhouse’s underage possession of an AR-15-style rifle has emerged as one of the most polarizing details from the night of the shooting that later drew pro-gun “patriot” groups to his defense.
In Wisconsin, lawful gun owners can generally open carry without a permit. But a person must be 18 or older to carry a “dangerous weapon.” Rittenhouse was 17 at the time of the shootings.
Rittenhouse’s attorneys previously argued he was protected under a vague state law that allows younger children to carry rifles for hunting, but he was charged with underaged unlawful firearms possession anyway. Criminal defense attorneys who specialize in Wisconsin firearm law say it will be hard for the defense to beat that back at trial.
“There are a variety of defenses to this charge; none of them are great or even rise to the level of good,” said Tom Grieve, a Milwaukee-based criminal defense attorney.
If convicted of the misdemeanor gun charge, the maximum penalty is up to nine months in jail or a $10,000 fine, but is usually resolved with probation. By contrast, Rittenhouse could face life in prison if convicted on the most serious counts.
Grieve said prosecutors are likely pursuing the charge because it helps them make broader arguments about Rittenhouse’s behavior that night.
“It’s part of the prosecution’s narrative of how the jury and the public should understand this case,” Grieve said. “In that sense, it’s smart to charge it.”
There’s a ‘low bar’ for defense
As with any criminal case, the burden is on prosecutors to prove their case. At Rittenhouse’s trial, that means convincing a jury beyond a reasonable doubt that Rittenhouse did not act in self-defense and that his actions were unreasonable and reckless.
The defense is not obligated to even mount its own case and can instead try to poke holes in the prosecution’s argument through cross-examination. Rittenhouse’s lawyers, however, are pursuing an “affirmative defense” and will present evidence that supports his claim.
“Wisconsin establishes a low bar for the defense,” said Findley. “It just needs to produce ‘some evidence’ in support of the claim of self-defense — that his fear was reasonable and that he responded reasonably.”
The prosecution must convince the jury that Rittenhouse didn’t act in self-defense. “A jury could decide he can’t invoke the privilege of self-defense because of his own unlawful conduct, or that he provoked the attack on himself,” Findley said.
A significant factor that won’t be known until after both sides have presented their case is how the judge will craft his instructions to the jury.
“That can go a long way to swaying the jury’s opinion on how they’re supposed to process and understand the evidence,” Grieve said.
Personal background info is mostly extraneous
Almost none of that background information will be presented during the trial.
“It’s Rittenhouse’s conduct [that night] that will be judged in the trial,” Findley said. The same goes for the men Rittenhouse shot. “You often hear ‘the victims aren’t on trial’ but in a sense they are — their conduct is being assessed here: Were they the aggressors? Did they unjustifiably create a threat to him?”
The judge has already ruled on a flurry of pretrial motions on whether statements and damaging information about Rittenhouse or the shooting victims could be included as evidence. Presiding Kenosha County Circuit Judge Bruce Schroeder blocked the defense’s attempt to include Rosenbaum’s sex offender history in the record, as well as prosecutor’s efforts to include a video from a month before the shooting they said shows Rittenhouse hitting a teen girl during a fight.
“The court only wants things admitted that are relevant, to create a balanced system, and not things that are prejudicial,” said Aneeq Ahmad, a Milwaukee-based criminal defense attorney. “If a guy’s on trial for murder, you can’t also add ‘and he cheats on his wife.’ That may be true, but we don’t want people to be biased by things we don’t like about the defendant.”
There are exceptions when a judge decides that part of someone’s biography or past behavior has a fact-building value that outweighs the risks of unfairly prejudicing the jury. For example, prosecutors had pushed to have a 29-second video taken days before the fatal shootings last August admitted as part of the record.
In the clip, first published by the Milwaukee Journal Sentinel, prosecutors say Rittenhouse can be heard saying he wished he could shoot people, whom he believed to be looters, fleeing a nearby CVS store.
“Bro, I wish I had my [expletive] AR, I’d start shooting rounds at them,” Rittenhouse is heard saying.
Findley said if he were a prosecutor, he’d find that video evidence “absolutely critical.”
“It’s one of the few windows we get directly into Rittenhouse’s thinking,” Findley said. “There is a risk the jury will say ‘he has a character trait for wanting to shoot people’ and the judge must weigh that. It feels like hairsplitting, but this is fairly standard struggle the law confronts.”
Prosecutors ultimately did not try to introduce the evidence at trial.
Controversial ‘victim’ ruling is ‘unusual but not improper’
Judge Schroeder drew outrage just days before trial when he issued a pretrial ruling that the men shot by Rittenhouse could not be referred to as “victims” because the term was too “loaded” and prejudicial. They could, however, be called “arsonists” or “looters” in closing arguments if there was evidence that showed them participating in those acts.
Lawyers who spoke to The Washington Post said the judge’s decision was unusual but not unheard of in a self-defense trial.
“This judge to be laser-focused on not permitting any rhetoric or language that could somehow negatively affect the defendant,” said Sorensen, the Northwestern Law professor.
Findley said the ruling is unusual since in most murder trials, the question is who committed the crime, not if a crime occurred. “In that case, calling the deceased person a victim doesn’t affect the question the jury is asked to resolve,” Findley said.
“It becomes even more tricky when you look at the fact the judge said he’s not going to ban the defense from describing the people shot as ‘arsonists’ and ‘looters’ if they can prove it,” he added. “It looks inconsistent, because those are very prejudicial terms. But in the judges defense, the jury’s task is not to decide if they are arsonists or rioters or looters.”
The case won’t set precedent — but it could shape norms
As the trial began Monday, demonstrators outside the courthouse voiced concern about how the verdict could shape future court battles. Some feared a conviction would have a chilling effect on self-defense and gun rights, while others worried an acquittal would provide a legal escape route for armed vigilantes who want to violently confront protesters without consequence.
Lawyers said one thing is certain: The outcome of Rittenhouse’s trial will not set a legal precedent that will guide future court decisions in Wisconsin, since precedent is set at the appeals court level. And if Rittenhouse is acquitted, there will be no appeal because of double jeopardy.
The trial’s likelier impact is on how people behave.
Findley said people may be emboldened to carry firearms to volatile protests or riots if Rittenhouse is acquitted. “If convicted, it might make that behavior look like a riskier proposition," he said. "It may also give some sense of vindication to people on the left who are concerned about the messages we send about protests against police violence and racial discrimination.”