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Rittenhouse didn’t have to prove he acted in self-defense

The state, not the defendant, bears the burden of proof in self-defense cases.

Kyle Rittenhouse looks back before going on a break during his trail at the Kenosha County Courthouse in Kenosha, Wis., on Nov. 15, 2021. (Sean Krajacic/The Kenosha News via AP, Pool)
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No one disputed that Kyle Rittenhouse, now 18 years old, shot three men and killed two of them during turbulent protests in Kenosha, Wis., after the shooting of a Black man by a White police officer. And it is well known that the central issue of his trial was whether Rittenhouse had a valid self-defense claim. But the prosecution faced a difficult challenge from the start — as the result of the trial, an acquittal on all charges, made clear.

Contrary to what many people may have thought, Rittenhouse didn’t have to prove that he was acting in justifiable self-defense. Rather, the state had to disprove at least one legal element of his self-defense claim, and do so beyond a reasonable doubt. That was a tall order, and it made the verdict legally defensible, despite the sharp complaints that followed. (The Princeton African American studies professor and New Yorker writer Keeanga-Yamahtta Taylor called the verdict evidence of “white power” and a “declaration of ‘open season’ on opponents of racism.”) Rittenhouse’s acquittal will surely lead to calls to change defensive-force laws to make it harder for defendants like him to prevail. But such changes could have unintended consequences that reformers may come to regret — punishing more sympathetic defendants who use force to save their own lives.

That the state had the burden of proof didn’t mean Rittenhouse could just pronounce “I did it in self-defense!” and sit down. He bore the “burden of production” — one component of the burden of proof — meaning he had to present facts that could be found by a jury to constitute valid defensive force.

The Wisconsin Supreme Court has made clear that the burden of production is a fairly low (if meaningful) bar in a case like Rittenhouse’s. The narrative that he laid out cleared it: Rittenhouse, who was carrying a rifle, said that he was chased by 36-year-old Joseph Rosenbaum and 26-year-old Anthony Huber, and that they grabbed his gun; 26-year-old Gaige Grosskreutz, who survived, admitted he pointed a handgun at Rittenhouse. It then fell to the prosecution to disprove at least some part of that narrative. Given the difficulty of the prosecutor’s task, experts had suggested that guilty verdicts would be a long shot.

That the burden of proof is on the state, not the young man wielding the gun, may seem surprising to many, but Wisconsin’s approach is the mainstream one. Virginia may be the last state that requires a defendant to prove that he or she was acting in self-defense, after Ohio reformed its law in 2019. State defensive-force statutes often vary widely in how they are written — with differences that can determine whether a defendant is found innocent or guilty — but putting the burden of proof on the prosecution is something nearly all of them have in common.

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If nothing else, this burden of proof has significant implications for how we should interpret the Rittenhouse verdict. His defenders are already framing the acquittal as vindication. (“The men acting as vigilantes that night were Grosskreutz and Huber,” tweeted the Washington Examiner columnist Tim Carney.) But the burden-of-proof issue complicates such a claim. If the jury was at all confused about what happened the night of the shootings, it was bound to rule in favor of Rittenhouse, even if it had a pretty strong sense that he behaved unreasonably. The acquittal may be far less a vindication of Rittenhouse’s actions and far more an acceptance of what “beyond a reasonable doubt” means in a situation in which there are significant factual disputes.

Another high-profile case of alleged self-defense ended with a similar result eight years ago, when a jury in Sanford, Fla., acquitted George Zimmerman of charges connected to his killing of Trayvon Martin. Zimmerman shot the unarmed teenager during a fight that began after the older man stopped Martin, who was walking in Zimmerman’s gated community. That outcome was even more foreordained than the one on Friday, given not only that the prosecution bore the burden of proof but that Zimmerman had killed the only other witness to the fight. (Particulars of Florida law also mattered, notably a provision that lets those who provoke fights use deadly force if their lives are threatened.)

Most self-defense cases, however, do not look much like the one inspired by the events in Kenosha or Sanford. More of them look like Marissa Alexander’s trial in 2012 for firing a warning shot at her allegedly abusive then-husband in Jacksonville, Fla. The twists and turns of her case illuminate how much impact the burden of proof can have. Alexander initially asked in a pretrial hearing to dismiss the charges using Florida’s “stand your ground” law, where, under the law at the time, she bore the burden of proof. She lost at that stage, and the case went to trial. At trial, the state bore the burden of proof in establishing that Alexander had not acted in self-defense. She would almost certainly have won, but the judge, shockingly, botched the jury instructions and wrongly told jurors that Alexander bore the burden of proof. Then, while awaiting retrial after her conviction was reversed because of this error — a trial she (again) would probably have won, given the burden of proof — Alexander understandably accepted a plea deal amounting to roughly two months in jail and two years of home detention, rather than risk a threatened 60 years in prison.

There is already significant concern that women who defend themselves from domestic violence struggle to get juries and judges to believe their defensive-force claims. If the burden of proof were placed on defendants in such cases — consistently, and not in the ad hoc way it happened in Alexander’s trial — how many more victims of domestic violence who try to protect themselves would endure long prison sentences? The tricky public policy issue is that rules that make it easier for Rittenhouse to escape punishment also protect people like Alexander.

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Consider, too, the case of Breonna Taylor, the Louisville woman who was killed when the police fired more than 30 shots in her home during a botched late-night raid. While Kentucky’s defensive-force law has protected the officers who killed Taylor, it is also why the local prosecutor dropped assault and attempted-murder charges against Kenneth Walker, Taylor’s boyfriend, who fired a shot at the police as they entered, hitting an officer in the thigh. That high burden of proof shielded Walker, who claimed the police had failed to announce themselves and thus seemed to him like intruders. Again, shifting the burden of proof to defendants would make it easier to convict both the police officers and those who reasonably defend themselves against the police in ambiguous situations. Officers who face charges for using force already have significant advantages that civilians do not. The net effect of weakening defenses for the average person might not be a step forward.

One factor that clearly distinguishes Rittenhouse from Alexander is the open carrying of a gun. It is certainly fair to raise concerns that defensive-force laws and the growing embrace of open-carry laws are increasingly in tension with each other. But that is not necessarily an argument for making it easier for prosecutors to defeat all defensive-force claims — which lowering the burden of proof would do. We should keep in mind that there will always be more Alexanders than Rittenhouses and Zimmermans.

This article has been updated.

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