Crucial Legal Issues Could Decide Kyle Rittenhouse Trial; Prosecutorial Misconduct, Juror or Jury Nullification, and Burden of Proof
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Kyle Rittenhouse Trial
WASHINGTON, D.C. (November 12, 2021) - The trial of Kyle Rittenhouse for shooting three men, two of them fatally, may be decided by one or more crucial but often misunderstood legal issues, suggests public interest law professor John Banzhaf.
The issues which could decide his fate include; (1) what the judge described as clear abuse of clearly established law that prohibits prosecutors from suggesting that declining to talk with authorities or obtaining an attorney should be used against a defendant; (2) the very real possibility of jury nullification or even more likely juror nullification, and (3) the often misunderstood burden of proof regarding the doctrine of self defense.
By suggesting, even through questioning, that the exercise of a constitutional right to decline to discuss a case with authorities (which any defense attorney would strongly recommend), and/or that seeking the assistance of a lawyer (which is wise in virtually all cases), implies guilt in clearly unconstitutional. Regardless of how and in what tone the judge admonished the prosecutors about these instances, they provide more than adequate grounds for the judge to declare a mistrial.
Indeed, the prosecutorial misconduct was so clear and blatant that some are even suggesting that the state is hoping to provoke a mistrial, since that ending to the trial - which prosecutors could blame on a biased judge - would be less embarrassing to them, and easier to justify to those pressuring for a murder conviction, than not guilty verdicts by a jury in a case which seems at this point to be quite weak, in part as a result of some of the judge's rulings.
Juror nullification
Given the very strong feelings and emotions underlying this case - with some characterizing the defendant as a hero and others as a lawless vigilante - there is also a considerable possibility that the outcome of the trial will be decided by juror nullification or jury nullification.
"Juror nullification" (similar to "jury nullification") occurs when a juror exercises his constitutionally protected right to refuse to vote "guilty" even when he is convinced of a defendant's guilt - which could occur because he simply believes that a conviction would be unfair or unjust under the circumstances, when he wants to "sent a message" to the prosecutor, out of sympathy for a defendant, to not discourage certain conduct, or for other reasons.
These could include seeking to protect if not encourage citizens to stand up to criminal rioters, sympathy for gun rights supporters, dislike or even hatred for criminal rioters, etc. And it take only one jury exercising this right to cause a mistrial, even if all of the other jurors are firmly convinced of the defendant's guilt.
If only one juror votes "not guilty" even while believing that Rittenhouse's guilt has been proven - juror nullification - the result is a mistrial. If all jurors - including some exercising their constitutional right of jury nullification - vote "not guilty," the defendant goes free and there is no appeal.
Jury nullification, a constitutional right recognized and upheld by the U.S. Supreme Court, occurs when jurors, despite concluding beyond a reasonable doubt that a defendant has violated the criminal law as explained to them by the judge, nevertheless unanimously votes "not guilty."
Jurors may do this because they believe that the law is unfair or unreasonable, either in general or as applied in a specific situation, to send some kind of message to prosecutors and/or to the general public, because a conviction in a specific situation might seem unjust for some reason, to register strong discontent with the conduct of the prosecutor, because of public pressure for - or concern about - a particular verdict, or for a myriad of other similar reasons which in some situations might even include issues related to race.
In short, this constitutional right permits jurors to nullify the law as it was meant to be applied, says Banzhaf.
As examples, consider that jury nullification apparently played a major if not controlling role in many criminal verdicts involving varied defendants: penis-slicer Lorena Bobbitt; the Menendez brothers (Trial 1); subway shooter Bernhard Goetz; Iran-contra figure Oliver North; former Philippines first lady Imelda Marcos; New York Black activist Al Sharpton; reputed mob boss John Gotti (early trials); and the beating trials of Reginald Denny as well as Rodney King (Trial 1).
Rittenhouse Came Looking For Trouble
Despite those who argue that Rittenhouse came looking for trouble, that his rifle infuriated some rioters, or whether he had an intent to kill those who attacked him, the legal test or standard for self defense is clear.
The prosecutors must prove that the defendant did not reasonably believe that he was in sufficient danger of serious bodily harm that required him to use his gun in self defense.
Since the burden of proof in any criminal case is "proof beyond a reasonable doubt," prosecutors must convince every juror that Rittenhouse could not possibly have had such fear in the split seconds in which he was forced to act. In other words, even if they think he might not or probably did not have had such a fear, they must be so sure - without any doubt in their minds - that they are willing to send him to prison for the remainder of his life.
Moreover, as the judge will probably charge the jury, the test they must apply is not whether a reasonably prudent person would have entertained that belief at the split seconds of the shooting - and without regard to what may have led up to the threats, or what they as individual jurors might have done in that situation - but rather could an immature 17-year-old with Rittenhouse's background and beliefs possibly have that fear.
It's especially important to note that, as the famous Supreme Court justice wrote for the high court regarding a self defense case, "detached reflection cannot be demanded in the presence of an uplifted knife."
In other words, we do not expect - especially in this case of a youth not mature enough to enter into many binding contracts - that he carefully think and weigh all the factors as rational jurors can when not faced with any threats to themselves nor any need to reach a decision in only a matter of seconds.
So regardless of whether one sees him as a brave citizen standing up for law and order when police do not protect people or property, or as a lawless vigilante who had no business being in the middle of a riot with a loaded gun, these legal doctrines may well decide the Rittenhouse case, with all the messages commentators will claim such a result may send, says Banzhaf.
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