You’re Wrong About the Kyle Rittenhouse Order

Brandon Bullard
December 7, 2021

Kyle Rittenhouse’s trial is seeing a good bit of attention lately, not only for the crimes of which he is accused, but also because of a recent ruling that stops prosecutors from referring to the people he shot as victims. Social media is littered with articles and graphics disgusted that the court could enter such a ruling. Those articles are sensationalizing the ruling in light of the facts. The trial court’s ruling is not so salacious as it’s being made out, and we should be disappointed in news outlets for casting it in that light.

It’s common for a defense counsel in a criminal trial to seek to bar prosecutors from calling the people who were injured victims. Victim, the argument goes, is a loaded term because it presupposes that a crime was committed. But it’s up to the jury to decide whether a crime was committed, and it’s unfair for prosecutors usurps that role with charged language.

Of course, whether a motion to bar the term victim ought to be granted depends on what the defense is. For example, if the defense is that the complaining witnesses are lying, it might well be prejudicial to call them victims. That is for the jury to decide. But if the defense is, say, identity—that a crime was committed but the defendant on trial wasn’t the one who did it—victim is likely not a prejudicial term. Everyone in that case agrees that the injured people are someone’s victims, they just disagree as to whose.

Rittenhouse’s defense (however specious some spectators might find it) is justification: that his acts were not crimes because what he did was reasonable to defend himself, others, or property. It would be at least arguably unfair to allow prosecutors to define the people he shot as ‘victims’ if the jury is to decide whether Rittenhouse committed a crime at all. Remember, if the system is to work, it must work the same for everyone in relevantly similar circumstances. The troubling thing is not that the trial court granted the motion here, but that so many other similar motions are denied in cases where the defendant is indigent or of color.

As for defense counsels’ ability to label those same people as arsonists, looters, etc., the headlines at least overstate the court’s ruling. Defense counsel may only use those labels in closing arguments if the evidence adduced at trial would support those inferences, but they may not use those terms in, say, their questions to witnesses. In general, counsel for either side can argue in closing any favorable inference that could be drawn from the evidence. That’s important here because the viability of Rittenhouse’s defense depends on whether he reasonably perceived the people he shot to be committing acts that would have justified his actions. His lawyers must be able to argue those points if the evidence could support them. Sure, this feels problematic because the attendant circumstances are so troubling. But a court cannot in a fair proceeding make evidentiary calls based on a preferred outcome.

Moreover, were I not grossly overqualified to say the above, I’m surely qualified to say this: The surest insurance against a reversed conviction on appeal is for a defendant to have gotten every procedural ruling he asked for at trial. To reverse an eventual conviction, Rittenhouse would have to show that the court got something legally wrong that hurt his case. He is unlikely to do that if the trial judge does everything he asks for and the jury still returns a guilty verdict.

Truth be told, calling the people whom Rittenhouse shot rioters, arsonists, looters, etc. is apt to backfire. In no state (save perhaps Texas) can someone use deadly force to protect property—only life and limb. The prosecution’s rebuttal will probably sound like this: “Even if you don’t approve of what those people were doing, even if they were damaging property, that does not give anyone—not the military, not the police, and sure as hell not Kyle Rittenhouse—license to murder them.” In my experience, juries tend to find defendants guilty following arguments like those. And if you want Rittenhouse convicted, the ruling is a gift.