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Kyle Rittenhouse Case: Prosecutors Trying AGAIN to Exclude Evidence Favorable to the Defense

Kyle Rittenhouse Case: Prosecutors Trying AGAIN to Exclude Evidence Favorable to the Defense

Rittenhouse’s criminal trial is scheduled to begin on Monday, November 1, 2021. And thanks to the kind sponsorship of Legal Insurrection, we’ll be here live.

Hey folks,

Welcome back to our ongoing coverage of the Kyle Rittenhouse trial.

This week prosecutors in the Rittenhouse case have filed additional motions in limine—meaning, motions asking the court to exclude certain evidence from the trial.

Motions in limine are a perfectly normal part of any pre-trial proceedings.  It’s important to remember that a core function of a trial court is to act as a gatekeeper on the evidence and the legal arguments that will be allowed to be presented to the jury.

Neither party can just throw any evidence or legal arguments in front of a jury—if this were permitted every trial would be chaos.

Instead, evidence and legal arguments have to meet certain conditions for getting admitted—for example, they must be probative to an issue in dispute in the case, meaning it would help the jury arrive at a rational conclusion on that issue one way or the other—and they have to avoid triggering certain conditions for getting excluded—for example, they must not be excessively prejudicial or qualify as inadmissible hearsay.

In this way the pre-trial proceedings serve to “define the battlefield” of the trial itself—and, indeed, often it can be said that a trial is won or lost in these pre-trial hearings, because of the manner in which they decide the evidence and the legal arguments that the jury will be permitted to hear and consider in arriving at a verdict.

Remember, the entirety of the jury’s verdict—whether guilty or not guilty—will be determined only by what they hear in the court room (or, at least, that’s what the jury will be instructed by the judge).  Certainly, if there’s evidence or legal arguments that are unknown to the jury, those cannot play a role in the jury’s verdict.

So, in these pre-trial evidentiary hearings there is ongoing joisting between both sides—in a criminal trial, between the state prosecutors and the defense—each arguing for evidence favorable to themselves, and arguing against evidence favorable to the other side, with the trial judge making the final call on what evidence will be permitted and what evidence will be excluded.

Importantly, for the most part these decisions by the trial judge are final and not readily subject to reversal by a higher-level court, because trial judges are given enormous discretion in making these evidentiary calls. So, whatever side wants a piece of evidence admitted or excluded is well advised to make their very best arguments right then in the pre-trial hearing, because that’s where they’ll win or lose, period.

In this week’s motion in limine the prosecution is asking trial Judge Schroeder to exclude as evidence certain characterizations and arguments the state anticipates the defense will want to argue in front of the jury.

Specifically, the prosecution does not want the defense to be permitted to refer to the victims in this case—Rosenbaum and Huber, both killed by Rittenhouse, and Grosskreutz, seriously wounded by Rittenhouse—as “rioters,” “looters,” or “arsonists.”  The state also wants excluded any reference to the criminal histories of the three men—Rosenbaum reportedly was a repeatedly convicted child molester, Huber reportedly was a repeatedly convicted domestic abuser, and Grosskreutz reportedly has been convicted of misdemeanor weapons charges.

Previously, Judge Schroeder had ordered that these men could not be referred to by the state as “victims” in this case. Although “victims” is often used as a legal term of art to refer to a person subject even to a lawful use of defensive force, Schroeder is sensitive to the concern that allowing this term to be used in the context of someone who may well have been the criminal aggressor in a fight could unfairly bias the jury against the defense argument of self-defense.

This decision by Schroeder in this case is consistent with his long-standing policy in his court of not allowing the use of the term “victim” in self-defense cases.  After all, until a verdict has been arrived at , we can’t really know if it was the person who was subject to force who was the “victim” of an unlawful use of force by the defendant, or whether it was the defendant who used that force in self-defense who was the “victim” of an act of criminal aggression.

The prosecution is arguing that just as Schroeder has refused to allow Rosenbaum, Huber, and Grosskreutz to be referred to as victims, he ought not allow them to be referred to as rioters, looters, or arsonists, nor allow their criminal histories to be referenced.

Of course, the difficulty here is that the only reason that Rittenhouse was present in Kenosha at all that night is because of the rioting, looting, and arson taking place—Rittenhouse was not in the routine habit of walking around a peaceful Kenosha night armed with an AR rifle and first-aid equipment.

Importantly, a key facet of the prosecution narrative in this case is that Rittenhouse was an out-of-control, taking-the-law-into-his-own-hands vigilante.  This narrative becomes less compelling if Rittenhouse had a rational basis for being openly armed on the streets of Kenosha the night of August 25, 2020, and more compelling if Rittenhouse’s conduct can be isolated from the surrounding circumstances.

Certainly, I would expect the defense to counter the state’s in limine argument on this point by noting that those very circumstances, the rioting, looting, and arson, and the manner of participation of the men in question in those circumstances, are key to understanding the totality of the circumstances of that night, and the totality of the circumstances are always key in any self-defense case.

In terms of the criminal backgrounds of Rosenbaum, Huber, and Grosskruetz, these would not normally be admissible as evidence if offered for the purpose of showing a propensity to commit acts of violence—but in the context of a self-defense case this kind of normally inadmissible evidence can become admissible if it touches on the question of who was the initial aggressor in the confrontation.

That is, if the state is going to argue that Rittenhouse was the initial aggressor in any of these confrontations, that could open the door to the admission of the forcible or weapons-related criminal histories of the men Rittenhouse was purportedly aggressing against—that evidence becomes relevant to showing whether it was more likely Rittenhouse or the other men were actually the initial aggressors in the fight.

Of course, in each of the encounters between Rittenhouse and these three men it is largely incontestable that it was they who were pursuing a fleeing Rittenhouse, so the question of initial aggressor may be sufficiently settled, and therefore not in issue, that it could bar the door to the admission of these criminal histories on that question.

Perhaps more interesting, the prosecution is also seeking to have excluded evidence about encounters Rittenhouse had with police that evening, particularly evidence suggesting that the police were supportive of the presence of Rittenhouse and other similarly-minded people who were on scene armed for the purposes of protecting property and themselves.

For example, there is video of unidentified police officers interacting with Rittenhouse, amongst a group of other armed men with him, handing them bottles of water, and an officer telling the men “we appreciate you guys.”

Obviously, this evidence would be extremely damaging to the prosecution narrative of out-of-control, taking-the-law-into-his-own-hands vigilante, and so the prosecution wants the evidence excluded.  But exclusion requires a reason—so what would be the reason?

The reason offered by the prosecution for excluding this favorable police interaction evidence is that it qualifies as inadmissible hearsay evidence.

Hearsay evidence is evidence that consists of an out of court statement introduced for the truth of the statement itself.

An example would be if Mary was a witness at trial, and she testified that her friend Susan had told her weeks ago that it was Tom who shot Fred.  That purported statement by Susan was made out of court—Susan is not testifying in court herself—and if offered for the truth of the statement—as evidence that Tom shot Fred—then it would be excluded as hearsay.

The reason such hearsay evidence is excluded is because it cannot be subject to the usual “testing” of a trial—because Susan is not testifying herself, for example, she’s not being subject to cross-examination and impeachment, and the jury cannot make its own assessment of her credibility.  Also, every defendant has a  US Constitutional right to face their accuser, so the defendant in our hypothetical should have the right to face Susan, not merely Mary recounting Susan’s purported out-of-court statement.

What if, however, the out-of-court statement was not being offered for the truth of the statement itself, but for some other purpose?

Imagine, for example, if in our hypothetical an issue in the case is whether Susan was capable of speech at all, with one party arguing that she was a mute who could not speak?  Then Mary’s testimony about Susan’s statement might be offered not for the purpose of the truth of the statement itself—the Tom actually shot Fred—but rather simply to demonstrate that Susan did, in fact, possess the ability to speak.  In that context, for that purpose, the truth of the statement is irrelevant.

In the Rittenhouse case, the statements by police to Rittenhouse that suggest a favorable view of his conduct were surely out of court statements, and if offered for the truth of the statement itself would almost certainly be inadmissible hearsay.

But what if the police statements are not being offered for their truth?

Indeed, let’s assume that the statement by police was untrue—let’s imagine that the officer was lying, or perhaps telling the truth for himself as an individual but not for the police as a whole.  Indeed, the defense might concede that the statement was entirely untruthful, that the reality was that the police did not “appreciate you guys.”

Even if untrue in fact, however, the statement could still be relevant to Rittenhouse’s state of mind. In other words, if Rittenhouse believed the statement to be true, if Rittenhouse believed that the police present did “appreciate you guys,” it would support his having a good intention motive for being present that night in Kenosha, rather than the out-of-control, taking-the-law-into-his-own-hands vigilante motive the prosecution is attempting to advance in its narrative of guilt.

If the police statement is being offered not for the truth of the statement itself, but merely for its likely effect on Rittenhouse’s state of mind, then it does not qualify as inadmissible hearsay, and may well be admissible evidence.

If admissible, when offered it would likely be accompanied by a limiting instruction by Judge Schroeder to the jury that the evidence was being offered precisely for that limited purpose—it’s effect on Rittenhouse’s state of mind, that he had a subjective belief that the police supported his efforts—and not for the truth of the statement itself—that the police present actually supported his efforts.

Of course, as with all limiting instructions, once the evidence is in the minds of the jury, whether they genuinely use it for the limited purpose stated, or apply it more broadly, is something only the jury itself can really know.

I haven’t yet seen any defense response to these motions in limine by the state, but I do know the next pre-trial hearing in the case is scheduled for October 25, 2021, just about a week before jury selection begins on November 1.  Presumably these new motions in limine, as well as all the other open motions still before the court, including the admissibility of the offered use-of-force expert witness testimony, will be decided by the court on that date.

OK folks, that’s all I have for all of you today on this subject.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

 

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Comments


 
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Dathurtz | October 14, 2021 at 7:58 am

I guess they can’t just ask the officer to characterize the situation? Or why he was giving them water?


     
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    Milhouse in reply to Dathurtz. | October 14, 2021 at 10:54 am

    As I understand it the police department’s official position is that they were giving everyone water, both rioters and volunteers, just to keep everyone hydrated while they went about their lawful or unlawful business.

    More relevant are the alleged words of support for the volunteers. I doubt any policeman told the rioters they were appreciated.

    But the article says the policemen in the video are unidentified, so to call them you’d have to identify them first. Which doesn’t seem difficult to do. If there were a reason to identify them surely all you’d have to do is subpoena a list of all uniformed Kenosha cops, with their names and photos, and compare them to the video.


       
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      mailman in reply to Milhouse. | October 14, 2021 at 4:44 pm

      If the police had done their job and cleared the streets of the real domestic terrorists none if this shit would have happened…and as sad as it is…those two pedophiles and domestic abusers would still be alive today.


 
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guyjones | October 14, 2021 at 8:32 am

This case holds many parallels to the Zimmerman show trial persecution stunt, namely, an objectively open-and-shut case of the legitimate and lawful use of a firearm in lethal self-defense by a private citizen, turned into a vindictive, transparently politically-motivated prosecution pursued by Dhimmi-crat prosecutors — not based upon the narrative told by facts and evidence, but, rather, pursued to sate the Dhimmi-crat mob’s misplaced and misguided bloodlust, and, to promote fallacious Dhimmi-crat narratives of alleged “victims.”


     
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    Danny in reply to guyjones. | October 14, 2021 at 11:54 am

    1. Zimmerman was acquited

    2. Woman who decided to go forward and prosecute was a Republican.

    3. Stop with the Dhimmicrat rhetoric Mr. Bush. I don’t want any part of your national security state your war mongering or your militarism and I’m a Republican. I don’t like you using Muslim hatred as a slogan to attack Democrats and I want to start winning Muslim voters back to the Republican Party Mr. Bush. Mr. Bush your demonization turned Muslims from a 90% Republican to a 90% Democrat constituency and we need them to flip Michigan.

      I am not religious, but it seems to me the more honorable path would not be to convert them from Democrat to Republican, but from Muslim to something/anything more compatible with civilization.

      When a group takes a child rapist as its prophet, and considers him the perfect man whose every act is to be emulated, then you have to be totally without conscience to think the problem is a red or blue one. Mohammed committed every vile act a human is capable of committing, including beheading entire tribes of Jews. Nothing good can come from revering him and following his example.

      Nothing demonizes Muslims more than Mohammed, his acts, and his teachings, and those things should be mocked.

      I agree that the war on terror was a very bad idea. The real war should have been to save the Arabs and others from Islam. And that is a war of ideas where barbarian creeds such as Islam must plainly be called what they are.


       
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      ConradCA in reply to Danny. | October 14, 2021 at 9:06 pm

      Zimmerman should never have been prosecuted because the evidence overwhelmingly supported his claim of self defense. His trial was a political trial used by Obama’s re-election campaign.


         
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        ConradCA in reply to ConradCA. | October 14, 2021 at 9:12 pm

        The prosecutor at Zimmerman’s trial was obviously a progressive fascist pretending to be a Republican. A real Republican prosecutor would have looked at the evidence and dropped the charges. The case was so weak the the evidence presented by the persecutor proved that Zimmerman killed Trayvon in self defense.


           
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          artichoke in reply to ConradCA. | October 14, 2021 at 9:32 pm

          The “special prosecutor” appointed federally because nobody in the whole state of Florida would prosecute such a clear case of self-defense.

          The federal intrusions into state politics are really excessive. I wonder how much longer the political arrangements will formally allow for them, given the upheavals going on these days. We could end in a better place, although not without turbulence along the way.


       
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      guyjones in reply to Danny. | October 14, 2021 at 9:15 pm

      Go to hell, fool. Really — go jump off a cliff and rid the world of your total ignorance, vanity and rank stupidity.

      The Dhimmi-crats’ moniker is well-earned and is a completely accurate characterization, given that the Dhimmi-crat Party is now manifestly a party that openly welcomes Muslim supremacists, terrorist sympathizers and Jew-haters into its tent — a Party that can’t even bring itself to condemn one of its most vile and ugly members when she traffics in brazen Jew-hate; a Party that promotes transparently contrived and fallacious Muslim terrorist propaganda mythologies of alleged victimhood; a Party that denies Israel the moral right to defend itself against Arab Muslims childish and perpetual belligerence.

      YOU are a totalitarian sympathizer and utter reprobate, defending an immutably supremacist, totalitarian, belligerent, misogynist, anti-gay and anti-religious pluralist ideology that stands in direct contravention to secular democratic norms and values.

      Go to hell, if I didn’t make that clear, already, fool.

        You are one of my favorite LI commenters, guy, but this is … not good. Find a way to express your disagreement without name-calling. Please! I don’t want to remove your comments, ever.


         
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        civisamericanus in reply to guyjones. | October 15, 2021 at 10:29 am

        The name-calling is not appropriate, but voters should indeed have concerns about a party that welcomes figures who support Hamas terrorism to the extent that they want to deny funding for Israel’s Iron Dome system.

        It is also noteworthy that Rashida Tlaib said “our Palestinian people.” Somebody needs to tell her, publicly, that this is the United States and, if she wants to represent Palestinians and maybe Hamas, then that is where she should move. The only nation between Mexico and Canada is the American nation, and if somebody wants some other kind of nation (white nationalist, Black nationalist, Nation of Islam, or anything else), then he or she does not belong here. See Theodore Roosevelt’s essay on Americanism for the details.


       
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      guyjones in reply to Danny. | October 14, 2021 at 9:21 pm

      By the way, idiot — I’m criticizing the Islamic ideology, and, feckless idiots such as yourself who whitewash and deny its manifest pathologies. There is no “Muslim hatred” in anything that I wrote — only facts, logic and truth, which you, in your arrogant vanity and smug sanctimony, find allegedly offensive.

      And, your contention that American Muslims in Michigan constituted a 90% voting constituency for the GOP is total bunk. These are the same people who put Dhimmi-crat Jew-hater, Muslim supremacist and terrorist sympathizer, the ugly and vile Rashida Tlaib, in office.

      Your foolishness serves as its own rebuttal. Truly, you are stupid, beyond belief.


         
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        civisamericanus in reply to guyjones. | October 15, 2021 at 10:36 am

        Islam means different things to different people, noting especially that even countries like the UAE and Saudi Arabia are becoming far more friendly to Israel and are making reforms that may one day put them into the free world. There are two Muslim-majority nations rated Free by Freedom House while, a couple of decades ago, there were none.

        What Islam means to the few Muslims I have known or interacted with personally–e.g. an Arab restaurant that, instead of serving as small portions as possible to save a few pennies, put so much food on my plate that I could not eat all of it–is very different than what it means to ISIS, Hamas, Al Qaida, and similar groups that use it as an excuse for violence not only against Jews, Christians, Hindus, women, and LGBT people but also Muslims who do not share their depraved ideology. ISIS, for example, killed Muslims for being the wrong kinds of Muslims, while Al Qaida murdered three or four dozen Muslims in the Twin Towers while a Muslim emergency responder died trying to help the victims.

        Unfortunately, Ilhan Omar and Rashida Tlaib appear to support the depraved ideology practiced by Hamas.


       
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      artichoke in reply to Danny. | October 14, 2021 at 9:29 pm

      What did Mr. Bush do? Get involved in fights between Shia and Sunni Muslims, on the Shia side.

      Both Afghanistan Taliban (Sunni) and Iraq (mostly Sunni) were fighting or going to fight the Iranian Shia. Bush felt so strongly about this Muslim issue that he used pretexts (9/11, babies in incubators, both nonsense) to go into both countries and prevent their wars against Iran.

      I’ve never heard of Muslims being 90% Republican. I look at Rashida Tlaib and I don’t think she’s a generation removed from Republicans. But you can convince me with evidence.


       
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      Barry in reply to Danny. | October 15, 2021 at 1:11 am

      “…and I’m a Republican.”

      And I’m a superior alien from another planet.

      What you are, is a marxist, 100%

        No, Barry, he is not. Someone on OUR SIDE who doesn’t walk in lock-step with your viewpoint is not automatically a Marxist. That doesn’t make any more sense than calling normal American parents who oppose CRT “domestic terrorists.” Don’t be the thing you claim to hate.


     
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    Colonel Travis in reply to guyjones. | October 14, 2021 at 12:28 pm

    Zimmerman had Don West as his attorney. Yes, his case was open and shut, but you need to convince a jury it was open and shut. It doesn’t walk into a courtroom by itself and say – here I am! Don West’s opening statement won that case. Even legal “experts” were clueless about what West did. Absolutely clueless. And to this day, people will recall things about that case that never happened, because of The Narrative was set ahead of time by the pro-Zimmerman side, which was a loud side.

    I listen to Don West speak regularly about self-defense cases, the guy is at the top of his profession. Rittenhouse’s attorney better be high caliber because, like you said, the prosecutors (and the media) are bending over backwards to turn this incident into something it is not.


 
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henrybowman | October 14, 2021 at 8:35 am

“Grosskreutz reportedly has been convicted of misdemeanor weapons charges.”

Hm. Felon is possession is a federal felony, is it not? And I’m not talking about the night of the incident, but a previous arrest.
Oh, don’t tell me — he plea bargained?

“…unidentified police officers interacting with Rittenhouse, amongst a group of other armed men with him, handing them bottles of water, and an officer telling the men “we appreciate you guys.”

I hope the defense brings up the fact that after Kyle shot those three guys, he walked over to the police to give himself up… and the police told him to just go home.


     
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    AnAdultInDiapers in reply to henrybowman. | October 14, 2021 at 4:39 pm

    I fully expect the defence to further bring into evidence the video of Rittenhouse telling people filming him after the first shooting that he was going to find the police.

    That he had to shoot two other people just to reach the police isn’t because he was “out of control”, it’s because he was assaulted twice while trying to get to the police. He then did successfully reach the police and did approach them.

    Video footage doesn’t offer clarity on the first shooting but it’s genuinely bewildering to me that the other two are being prosecuted for anything at all.


     
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    Subotai Bahadur in reply to henrybowman. | October 14, 2021 at 6:38 pm

    Since when are such charges prosecuted against the Left or against those who are favored by political correctness? It is the norm to drop those charges because to do otherwise would harm the narrative.

    Subotai Bahadur


     
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    randian in reply to henrybowman. | October 14, 2021 at 10:26 pm

    Yes, but Grosskreutz conveniently skates on the aggravated assault charge, because there’s no way the attempted murder charge against Rittenhouse goes anywhere if Grosskreutz is charged or convicted of aggravated assault against Rittenhouse.


     
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    civisamericanus in reply to henrybowman. | October 15, 2021 at 10:41 am

    A misdemeanor is not a felony but the prosecutor stipulated that Grosskreutz brandished a firearm at Rittenhouse after pursuing him. WI does not have a brandishing law, and I cannot give legal advice or say as a fact that Grosskreutz’s action met the criteria in states that do have a brandishing law, but it sure sounds like it. Here is what VA calls brandishing. https://www.tmwilsonlaw.com/criminal-law/firearms/brandishing

    “The defendant pointed, held or brandished any firearm or any air or gas operated weapon or any object similar in appearance …in such a manner as to reasonably induce fear in the mind of another”


 
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Grey_Man | October 14, 2021 at 10:07 am

Does anybody know who prosecution use of force expert “Bob” is?


 
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ruralguy | October 14, 2021 at 10:36 am

Excellent analysis of the rules of evidence and the underlying probative structure of a defense or prosecution. Law is an impressive science, but like any field, only about 10% of the people in the field can produce “A” level work. But, law unlike most professional fields, also allow juries to practice law without a license. Quite simply, a jury which reflects the average American with a reading comprehension at the 7th grade cannot understand the abstractions in rules of evidence and the probative structure of arguments. Only about 10% of the population can make inferences from what they read. We saw this in the Chauvin trial. That is why the legal system needs to be revised, by limiting the practice to licensed attorneys (no juries), and to include quality assurance procedures to ensure those attorneys who aren’t operating at the A-level are following fixed procedures to ensure the quality of their work.


     
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    Milhouse in reply to ruralguy. | October 14, 2021 at 10:57 am

    No thank you. Like democracy, the jury is the worst system except for all the others that have been tried from time to time. There’s a reason the bill of rights includes a jury trial among the fundamental rights of an Englishman that congress may not abridge.


       
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      Think38 in reply to Milhouse. | October 14, 2021 at 6:43 pm

      To further that thought, defendants currently have the right in most places to use licensed attorneys instead of a bench trial. Those are called “bench trials” where the judge acts as the jury.

      Hint, there is a reason our founding fathers wanted individuals to have the right to a jury trial. The system has its flaws, but it is harder to buy off/corrupt 12 than it is to do the same with 1.


         
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        tom_swift in reply to Think38. | October 15, 2021 at 9:20 am

        it is harder to buy off/corrupt 12 than it is to do the same with 1.

        That’s just a matter of money. And there’s far more money floating around today than there was in 1789.


     
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    Milwaukee in reply to ruralguy. | October 14, 2021 at 11:03 am

    Not just “No”, but “Hell No”.
    Too many law schools and lawyers are morally corrupted with leftism.


     
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    Colonel Travis in reply to ruralguy. | October 14, 2021 at 1:11 pm

    Juries aren’t practicing law without a license. They are common people who are brought in to judge a situation as fairly as possible. If, as you say, only 10% of lawyers are superior, then why the heck are you blaming jury members, who (almost-but-not-100% certainly) never went to law school, for not understanding the law? Even a lot of lawyers stink at it. And yet you want them to replace a jury?

    Am I not allowed to go to a restaurant to eat a great meal that I could never cook? I don’t understand ingredients like a chef. But if I have one who does and prepares it properly, I can enjoy what he produces. If I happen to talk to that chef who tells me about what he did and why, I can say – aha, I understand now.

    The job of an attorney in a trial like this is to convince a jury. Self-defense law is not complicated. It is complex and can be explained using normal language that normal people can understand. Having elites run everything is a recipe for disaster. Don’t blame people who have chosen to take a different path in life than an attorney for the shortcomings of our legal system. They’re not the ones who screwed it up.


       
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      ruralguy in reply to Colonel Travis. | October 14, 2021 at 3:05 pm

      Law is no different than any other profession that is licensed and developed as a science. We don’t trust anyone except an M.D., to do surgeries, because the malpractice can cause much harm. The same applies to law. I have handled fairly large civil suits by doing most of the work myself, but I had attorneys check much of my work. Attorneys, like MDs, are licensed for a reason. The consequences of doing a poor job are high. To do a proper job, requires a Phd level of understanding in both fields.

      I have developed the complex control and guidance laws for controlling the attitude and orbital mechanics of satellites and space vehicles. I have developed the Systems on Chips (SoC) targeted to FPGAs/ASICs containing a microcontroller and mixed component interface logic. But, the three civil lawsuits that I handled were much harder and more stressful than any of that.

      Asking a jury composed of adults with an average 7th grade reading comprehension, to solve complex legal issues is malpractice. They simply lack the cognitive ability and knowledge to understand the theory behind evidence, law, and how to compose a proper probative argument.


         
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        Colonel Travis in reply to ruralguy. | October 14, 2021 at 3:25 pm

        Can I let you in on a little secret? Explaining a self-defense case to a jury is not rocket science. I will agree with you that you need someone skilled enough to do it. But getting rid of juries with experts, who, again, you even admitted stink at their job? That’s ludicrous.

        I looked at my Black’s dictionary to see when the concept of a jury began. It was the 1400s. There is a reason for that.

        As a lawyer, your job is to help people without your expertise to understand concepts. Hello, is this thing on? If you want to win over people to your side, don’t hold them in contempt!


           
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          GWB in reply to Colonel Travis. | October 14, 2021 at 4:23 pm

          But he’s NOT a lawyer. Instead, he’s an ‘expert’.


           
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          AnAdultInDiapers in reply to Colonel Travis. | October 14, 2021 at 4:42 pm

          No idea what your “Black’s dictionary” is but you may wish to find a more authoritative source.

          https://www.bl.uk/magna-carta/articles/magna-carta-and-jury-trial

          No idea what your “Black’s dictionary” is
          You might want to refrain from commenting on legal issues here, then.

          “The most widely cited law book in the world” and “For more than a century, Black’s Law Dictionary has been the gold standard for the language of law.”


           
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          Colonel Travis in reply to Colonel Travis. | October 14, 2021 at 7:18 pm

          To AnAdultInDiapers (Nothing screams “I’m an authority” than a grownup who frolics in an infantilism fetish):

          1.) Why did I not say “invention of the jury” and instead focus on the jury trial as we know it when it became established within English common law? Because the jury in the time of King John, or centuries before in the time of Alfred the Great (did you know about that – nope, don’t even need a question mark because it’s rhetorical), was not the same as it was by the time criminal and civil jury trials matured hundreds of years later into what we can still recognize today.

          2.) Black’s Law Dictionary has been the gold standard legal dictionary in the country since the 1890s.

          3.) Read more than a single linked page to fully learn stuff.

          4.) Consider changing your screen name to delay the amount of time it takes for others to determine how dumb you are. Your words will ultimately ruin you, but a good screen name can buy you a little time.


           
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          AnAdultInDiapers in reply to Colonel Travis. | October 15, 2021 at 1:42 pm

          Thank you for your condescending reply. Black’s Dictionary is not the gold standard in my country, and is clearly wrong if you’re claiming it says “the concept of a jury” began in the 1400s. It did not, and I cited an explicit reference that confirms this.

          As for my user name, your assumptions regarding continence are noted.


         
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        inspectorudy in reply to ruralguy. | October 14, 2021 at 4:06 pm

        Wow! An elitist in the flesh. They are hard to find but here is one that thinks the world is stupid and needs his kind to keep it legal. One thing that even those of us who are not rocket scientists know is that we can all tell right from wrong. No matter how smart you are one truth is that it is up to the lawyers, pro and con, to make their case. Both sides have the same jury and it is up to them to persuade that jury.


           
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          artichoke in reply to inspectorudy. | October 14, 2021 at 9:42 pm

          I don’t understand your comment. A trial is not about right and wrong, unless the jury departs from instructions. It’s about whether the required proof standard is met regarding certain allegations. These can be unintuitive. When I heard Chauvin was going to trial, I couldn’t imagine what they could charge him with, since he clearly didn’t suffocate Floyd. Well they found some things, lawyered them up, got some friendly rulings and a friendly jury, and Chauvin’s a convict. I am surprised it got far enough for the jury to have a chance to make that decision. But that’s the legal system in action.

          And of course it’s the same jury, which may lean one way or the other. From what statements we got from that jury, it seemed they wanted to punish someone “in the wake of George Floyd” and the details didn’t matter.


         
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        GWB in reply to ruralguy. | October 14, 2021 at 4:22 pm

        Law isn’t a science. To attempt to turn it into one would be one of the problems with modern law. The “theory” behind evidence and law is actually pretty straight-forward. Our Founding Fathers understood it pretty well – even the ones who were not lawyers.

        I have developed the complex control and guidance laws for controlling the attitude and orbital mechanics of satellites and space vehicles.
        Baloney. Those laws exist already. You have developed the code or the mechanisms for using such. (Unless you’re claiming to be VonBraun or similar – and even then you would only have discovered them.) (I’ve got an astronautics class or two under my belt.)

        Please, hie yourself off to a country that actually wants an elitist system where our betters decide our legal fate.


           
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          ruralguy in reply to GWB. | October 14, 2021 at 7:47 pm

          You obviously have no industry experience, based on how you use the term “laws”, GWB. An astronautics class hardly makes you an expert on this. Autonomous vehicles apply “guidance laws”, “control laws” and navigation filtering to sensed inputs, to actuate control surfaces, cold gas jets, rockets, or many other types of mechanism. Just as there are many forms of sensing and actuation, there are many types of guidance laws, controls logici/laws including many variations on its component: pre filtering, estimation, gains, compensation, mass property uses and their estimations, and navigation methods including filtering multiple states, different gravity models, etc. Von Braun’s V2 was quite primitive. It lacked any digital control, using primitive analogy controls. After WW2, American theory of control evolved from analog, to classic controls to modern controls, and then to more advanced dynamics theory used by the Soviet and then pushed by System Theorists, like Kalman.

          As for the physic’s laws, the attitude and translational control is continuously evolving, because orbits are highly nonlinear, with variations in gravity, drag, radiation pressure, etc. Hamilton and Lagrange developed stunning mathematics laws to derive physical mechanics from energy and other conservation principles, but due to these nonlinear forces, the laws for controlling them differ depending on many factors. The government and industry pour much money over many decades, to research and develop these. Different aspects are studied in research contracts. The competing ideas get validated and verified, before they go into proposals. Then full scale engineering development takes place. This might give you a clue to how these are developed. You description indicates you really don’t know.


         
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        Barry in reply to ruralguy. | October 15, 2021 at 1:18 am

        “Attorneys, like MDs, are licensed for a reason.”

        So are hair dressers.

        Do you even know the reason?

        Why should attorney’s be “licensed” like hair dressers? Why should the state license anyone?

        Do you know what a guild is and why they existed?

        Do you have any clue?


           
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          Milhouse in reply to Barry. | October 15, 2021 at 9:07 am

          Good point. I thought of making it but decided it would be a distraction. But you are right, the purpose of licensing lawyers, and pretty much every other trade that is subject to such laws in various states, is to limit the number of practitioners and make entry more difficult and expensive than necessary, so as to increase the income of those who do pass.


 
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Milhouse | October 14, 2021 at 10:49 am

his long-standing policy in his court of not allowing the use of the term “victim” in self-defense cases. After all, until a verdict has been arrived at , we can’t really know if it was the person who was subject to force who was the “victim” of an unlawful use of force by the defendant, or whether it was the defendant who used that force in self-defense who was the “victim” of an act of criminal aggression.

I wonder whether he has the same policy in other criminal cases, such as rape, where referring to the accuser as the “victim” assumes the very thing the jury is supposed to decide. Until we know what really happened we can’t know whether the true victim is the accuser or the accused.

The prosecution is arguing that just as Schroeder has refused to allow Rosenbaum, Huber, and Grosskreutz to be referred to as victims, he ought not allow them to be referred to as rioters, looters, or arsonists, nor allow their criminal histories to be referenced.

That’s ridiculous. We don’t know whether they were victims, but nobody disputes that they were indeed rioters, looters, and arsonists. And this is highly relevant, because without it the whole story makes no sense. It’s like talking about someone seizing people in a building and carrying them into the street, without being allowed to mention that the building was on fire and he was a fireman!

The reason offered by the prosecution for excluding this favorable police interaction evidence is that it qualifies as inadmissible hearsay evidence.

As you say, that the interaction happened is not hearsay — the video speaks for itself. If the defense for some reason wants to go further and establish that many/most/all policemen actually did appreciate the volunteers, surely all it needs to do is call some policemen to testify to that. Or if the prosecution wants to establish that they didn’t, why can’t it call some policemen who will deny it, if they can find any? But the whole question of how they really felt in their hearts of hearts doesn’t seem relevant; the undisputable fact is that they acted as if they appreciated the volunteers, and that should be sufficient.


     
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    daniel_ream in reply to Milhouse. | October 14, 2021 at 11:59 am

    nobody disputes that they were indeed rioters, looters, and arsonists

    It seems to me the issue is whether Rittenhouse believed they were rioters, looters and arsonists and how that affected his decision to use deadly force. As Branca stated, it’s uncontested that the three were chasing Rittenhouse down at the time with armed hostile intent so I’m not sure it matters.

    Same with the criminal histories; there’s no way Rittenhouse could have known their criminal histories and their histories don’t seem to have much bearing on this specific case.


       
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      DaveGinOly in reply to daniel_ream. | October 14, 2021 at 1:22 pm

      KR’s purpose for being in Kenosha that night is certainly relevant and will be discussed (and probably contested between the defense and the prosecution). I think the purpose the others had for their presence is equally relevant.


       
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      AnAdultInDiapers in reply to daniel_ream. | October 14, 2021 at 4:46 pm

      I think their purpose for being there that night is in fact utterly irrelevant.

      There were rioters, arsonists (and I’m not sure about looters) there that night. That’s easily demonstrated by the video footage of rioting and arson.

      Whether the three individuals shot by Rittenhouse were rioting is irrelevant. Whether they were looting or arsonists is relevant.

      I thought what matters, the only thing that matters, is whether Rittenhouse reasonably believed they were an immediate threat to his life or likely to cause him serious harm, and who was the aggressor in the specific instance that he shot them.

      What else they were doing that night just doesn’t matter. It’s their assault on Rittenhouse that justifies his actions, even if they’d spent the rest of their evening feeding orphans and giving free fellatio to the police.

        Their purpose in being there that night most certainly sets the stage for determining whether Rittenhouse “reasonably believed they were an immediate threat to his life or likely to cause him serious harm”. You can’t legitimately isolate it from their individual actions.


           
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          AnAdultInDiapers in reply to GWB. | October 15, 2021 at 1:49 pm

          I firmly disagree with you.

          If someone had turned up in an ambulance and dressed as a paramedic, used impressive medical skills to save someone’s life then turned, chased Rittenhouse and made a potentially lethal attack on him from behind, their purpose for being there is entirely irrelevant. Rittenhouse would still have the right to defend himself against that attack.

          That’s why their reason for being there just isn’t material to his response to their direct individual and immediate actions.


       
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      henrybowman in reply to daniel_ream. | October 14, 2021 at 7:02 pm

      Rittenhouse didn’t need to know if they were rioters, looters, or arsonists. He just had to know that they were capable, willing, and in the process of employing lethal or highly damaging force against him in the moment. The final two were, by inspection. Possibly the first as well, but I am not as familiar with the video from that altercation, mainly because it was taken on the fly and harder for me to make out, as opposed to the one shot from a stationary position with Kyle more or less on his back.


         
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        civisamericanus in reply to henrybowman. | October 15, 2021 at 10:46 am

        The prosecutor stipulated that Rosenbaum was trying to commit strong-arm robbery (violent felony) by taking Rittenhouse’s rifle, thus adding a deadly weapon to the situation as well. The instant somebody tries to take your weapon, he has just brought a weapon–yours–into a physical confrontation.

        The whole case is junk and the judge should have thrown it out on his own on the basis of the prosecution’s side of the story which also stipulates that Anthony Huber was trying to commit armed robbery and aggravated (felony) assault when he was shot.


     
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    GWB in reply to Milhouse. | October 14, 2021 at 4:25 pm

    they were indeed rioters, looters, and arsonists
    Well, we know they were rioters. We do not know if they had looted anything nor set fire to anything, I think. So, one of those cases where hair-splitting would be extremely helpful. “I’m gonna let you call them rioters, but not looters or arsonists.”


       
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      henrybowman in reply to GWB. | October 14, 2021 at 7:04 pm

      We do know from video that the first guy to be shot had set fire to a dumpster and was in the process of wheeling it into a position where it would do some damage. And that Kyle was aware of this as well.

The prosecution is attempting to argue (as I see it) that Kyle was an aggressor in at least the first shooting. As such, they want to show his *behavior* was aggressive, and that his actions reflected that offensive mindset. Video showing the exact opposite blows cruiser-sized holes in their argument as you rightly point out. With that in mind, I fail to see (as a non-lawyer) how the established behavior patterns of the other attackers are not relevant. If Bob has been arrested a dozen times for assault, and the thirteenth time he tries that with an armed person and dies, one would rationally think the previous twelve attacks might indicate what he was trying to do that night. (Yes, I know. Presumed innocent.)

Also, the actions of attacker #2, #3, and #4 are clearly assault caught on camera. Non-police cannot fall back on the Fleeing Felon rule. They quite obviously were attacking an individual who was fleeing and therefore not a threat to themselves,, so they should be charged with assault for easy convictions. Um, except the dead guy, #3 I believe.


     
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    DaveGinOly in reply to georgfelis. | October 14, 2021 at 1:26 pm

    “Presumed innocent”? Who, Bob? Bob isn’t on trial, and aside from the fact that in your scenario he’s dead already, he needs no such presumption for his protection as he is the erstwhile “victim” and not subject to penalties in a proceeding against the person who offed him.


     
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    civisamericanus in reply to georgfelis. | October 15, 2021 at 1:24 pm

    The prosecutor stipulated that Rosenbaum initiated the first confrontation.

The entire thing is on video, you do not have a right to fire on someone for holding an AR 15 EVEN if they are breaking open carry laws. Would you back cops shooting anyone who is in violation of gun laws on sight?

What has me nervous is that this wouldn’t be the first case of railroading and sham show trials in American History.

A special place in hell is waiting for prosecutors like the one in this story.


     
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    Milhouse in reply to Danny. | October 14, 2021 at 3:19 pm

    Nobody is claiming that you have a right to fire on someone simply for holding an AR 15 in violation of open carry laws. If Mr Branca’s theory is correct, the prosecution wants to argue that Mr Rittenhouse’s motive for carrying it was because he wanted these people to attack him. Even if this were true, that would still not give them any right to actually attack him; but apparently under Wisconsin law it would mean that once they did attack him illegally he would have had no right to defend himself and would have been required to let them kill him. If they had killed him they’d still be liable, though.

    But all of this hinges on proving that was indeed his motive, which seems impossible to do, because it clearly wasn’t


     
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    GWB in reply to Danny. | October 14, 2021 at 4:32 pm

    Would you back cops shooting anyone who is in violation of gun laws on sight?
    If by “on sight” you mean without any warning whatsoever” and by “in violation” you mean of even the slightest infraction… then NO.
    If, by “in violation” you mean waving a gun about in any sort of confrontational manner while acting aggressively, and by “on sight” you mean with the proper procedures followed (warning, identification of self, etc.), then YES.
    But your argument is much too hyperbolic to really be answered.

    (I agree about the “special place in hell”. The Bible specifically mentions the offense of false judging.)


     
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    henrybowman in reply to Danny. | October 14, 2021 at 7:07 pm

    We do know that there was a gunshot before Kyle’s, but to my knowledge I don’t believe we know who did the shooting or what he was shooting at (maybe not Kyle at all).


 
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DaveGinOly | October 14, 2021 at 1:27 pm

Certainly, if officers came up to KR’s group and said, “You are making the situation worse, we would appreciate it if you removed yourselves from the area and left the policing to us,” the prosecution would want that introduced, true or not, to imply that if KR did not remove himself from the area, then his mindset was not favorable to law and good order.


     
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    Milhouse in reply to DaveGinOly. | October 14, 2021 at 3:23 pm

    Oh yes. That would be equivalent to the claim against George Zimmerman, which I still hear from people, that once the police dispatcher informed him that he was not required to follow Martin if he didn’t want to, he was obliged to immediately stop following him. Of course they ignore the fact that he says that’s exactly what he did; but even if he’s lying about that, the plain fact is that he had no obligation to do so. Not only was the dispatcher not a policeman, and not only did she have no authority to give him orders, she actually told him it was his choice.


 
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cfschroeder | October 14, 2021 at 3:23 pm

Excellence and exacting legal analysis

there is ongoing joisting between both sides
Hitting each other with large boards? Now that I would like to see! Lawyers in combat with wood! 🙂

Also, a nice job distinguishing the hearsay vs. “state of mind” bit with the video. Now I can explain it to others.


 
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Think38 | October 14, 2021 at 6:47 pm

To further that thought, defendants currently have the right in most places to use licensed attorneys instead of a bench trial. Those are called “bench trials” where the judge acts as the jury.

Hint, there is a reason our founding fathers wanted individuals to have the right to a jury trial. The system has its flaws, but it is harder to buy off/corrupt 12 than it is to do the same with 1.


     
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    henrybowman in reply to Think38. | October 14, 2021 at 7:10 pm

    The entire rationale for citizen juries was to serve as protection against railroading by the state. But juries today are mushroomed — kept in the dark, and fed bull*t — and so are easily manipulated. Grand juries, in particular, will “indict a ham sandwich” if that’s what the prosecution wants.


 
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civisamericanus | October 15, 2021 at 10:19 am

“Of course, in each of the encounters between Rittenhouse and these three men it is largely incontestable that it was they who were pursuing a fleeing Rittenhouse, so the question of initial aggressor may be sufficiently settled, and therefore not in issue, that it could bar the door to the admission of these criminal histories on that question.” This was stipulated by the prosecutor (!) in the charges, and the prosecutor also stipulated that Anthony Huber attempted to commit armed robbery (with his skateboard as the deadly weapon) and aggravated assault on Rittenhouse while Rosenbaum attempted to commit strongarm robbery (to take a deadly weapon and possibly turn it on Rittenhouse), all of which are violent felonies under WI law and justify a deadly response.

While WI does not have a brandishing law, what the survivor (Grosskreutz) did, also as stipulated by the prosecutor, sure sounds like brandishing as defined by states that have these laws, namely, displaying a weapon in such a manner as to put another person in reasonable fear for his or her safety–which is the prerequisite for deployment of deadly force against the one doing the brandishing. (Not legal advice, but common sense.)

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