The opinions and statements made in this article are solely those of Andrew Branca and do not represent any position or opinion of CCW Safe. We chose to share this content in order to provide some insight to the trial process.
Prosecutors Trying Again to Exclude Evidence Favorable to the Defense
Welcome back to our ongoing coverage of the Kyle Rittenhouse trial. Remember, you can find all our coverage of the trial, including all our coverage dating right back to the week of the shootings themselves, at: http://lawofselfdefense.com/rittenhouse
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.
You carry a gun so you’re hard to kill.
Know the law so you’re hard to convict.
Attorney Andrew F. Branca
Law of Self Defense LLC
Law of Self Defense Platinum Protection Program
Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.
Attorney Andrew F. Branca is in his third decade of practicing law, specializing in self-defense law of the United States, where he is an internationally recognized expert. Andrew has contributed in this context by the Wall Street Journal, National Review, the Chicago Tribune, the Washington Post, and many others, including nationally syndicated broadcast media. Andrew is also a host on the Outdoor Channel’s TV show The Best Defense and contributor to the National Review Online.
Andrew is a former Guest Instructor and subject matter expert (SME) on self-defense law at the Federal Bureau of Investigation’s National Academy at Quantico and the Sig Sauer Academy, an NRA Life-Benefactor member, an NRA Certified Instructor, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions. Andrew teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country.
In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.
Recently, Andrew won the UC Berkeley Law School Debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting on self-defense law.