Rittenhouse Instructions Confusing, Possibly Incorrect

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Rittenhouse Instructions Confusing, Possibly Incorrect; Problems Regarding Judge’s Instructions Could Further Complicate Case


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The Murder Trial Of Kyle Rittenhouse

WASHINGTON, D.C. (November 18, 2021) – In addition to all of the problems and possible misunderstandings already present in the murder trial of Kyle Rittenhouse, the instructions read to the jury by the judge may be too confusing, and possibly even incorrect as statements of existing law, warns public interest law professor John Banzhaf, who has played a role or correctly predicted the outcome in several high-profile cases involving self defense.

The importance of this concern was emphasized when the jury requested written copies of the judge’s instructions; instructions even reporters who regularly cover trials admitted they found confusing.

For example, regarding the crucial element of self defense, upon which the defense is relying, the judge correctly told the jury that a person may have a privilege to use deadly force even if he makes a mistake about the need to use it, providing that the mistake was a reasonable one.

But in trying to help the jury understand what a “reasonable” mistake means in this context, the instructions may seem confusing if not misleading. More specifically, the judge told the jury:

“A belief may be reasonable even though mistaken. In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense. The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of the defendant’s acts . . .” [emphasis added]

But this may be confusing. Jurors may well wonder and debate: Is the legal standard what a “person of ordinary intelligence and prudence” [“reasonably prudent person”] would have believed, or is the standard the actual “standpoint of the defendant” Kyle Rittenhouse; a 17-year-old boy whose reasoning abilities and mental inhibitions, according to many studies, are still developing, and are far short of those of an adult of ordinary prudence.

The Privilege Of Self Defense

Furthermore, virtually all legal authorities agree that the standard for determining whether the privilege of self defense applies is not an objective one, but rather a subjective one. In other words, jurors should not try to discern what a hypothetical “‘person of ordinary intelligence and prudence would have believed,” but rather what the specific party in a trial probably believed.

These beliefs can differ based not only on physical factors – e.g., a frail little old lady may reasonably fear serious bodily harm from an attack even if a healthy college fullback would not – by also upon mental ones.

For example, a police officer, because of his training and experience, might reasonably fear the imminent use of a deadly weapon from a bulge in an approaching person’s pocket, and his body language, which most reasonable people would not.

Alternatively, a person who had twice been beaten with a cane might reasonably and truthfully fear serious bodily injury from a person approaching in a menacing manner carrying a cane, whereas as a more typical reasonably prudent person might not.

In short, the instruction regarding self defense could easily be confusing to a jury, and perhaps not even be a correct (albeit confusing) statement of existing law.

As a second example, consider the judge’s ‘s instructions regarding provocation, a key argument relied upon by the prosecution. The judge began by charging:

“A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self defense.” [emphasis added]

This instruction seemingly tells the jury that the “provocation” necessary to defeat the defendant’s privilege of self defense must include engaging in “unlawful conduct.”

But there seems to be little to suggest that Rittenhouse engaged in unlawful conduct prior to using his weapon, especially since the charge related to carrying a gun was dismissed by the judge.

Legal Provocation

Indeed, the prosecutor seems to have suggested that Rittenhouse’s very presence with a gun in such a troubled scene can, by itself, constitute such legal provocation.

But another portion of Wisconsin’s self defense statute [ [WI Stat § 939.48 (2014)] makes it clear that, in some situations, sufficient provocation to defeat the privilege of self defense can occur even without unlawful conduct:

“A person who provokes an attack, whether by lawful or unlawful conduct, with intent to use such an attack as an excuse to cause death or great bodily harm to his or her assailant is not entitled to claim the privilege of self-defense.” [emphasis added]

In addition, after stating in his opening sentence – and without even hinting at any exceptions – that a person who provokes an attack “is not entitled to claim the privilege of self-defense,” the judge immediately thereafter says that a person who provoked an attack may, under certain circumstances, legally use not only ordinary non-deadly force, but even deadly force such a shooting a gun.

More specifically the judge stated that, “if the attack which follows [from the provocation] causes the person [who engaged in the provocation] to believe that he is in imminent danger of death or great bodily harm, he may lawfully act in self-defense.  But the person may not use or threaten force intended or likely to cause death unless he has exhausted every other reasonable means to escape from other otherwise avoid death or great bodily harm.” [emphasis added]

Even law professors experienced in interpreting legal language might have trouble explaining all this to a class of law students, or even crafting a flow-chart of how to apply the law, which the judge stated, to the facts of this specific case, says Banzhaf.

He speaks as a law professor who has taught the law of self defense for more than 40 years, provided legal analysis to justify the self defense shootings of New York’s “subway shooter” Bernhard Goetz, DC’s “jacuzzi shooter” Carl Rowan as well as in other cases, and correctly predicted the outcomes of many recent police killing cases, as well as the Zimmerman verdict.

Speaking more generally, he says it’s even more difficult for a jury to follow instructions about applying the law to the facts, after both sides have rested, if the jury has no impartial source of information as to what what they must decide until a trial is over, since the explanations of the law provided by the attorneys during opening statements are hardly impartial.

That’s why many experts have suggested that judges in complex cases should give juries some basic preliminary explanation of the key points of law they will be expected to apply to the facts once the case is submitted, the law professor notes.