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Law & the Courts

Why Is Rittenhouse Testifying?

Kyle Rittenhouse testifies in his trial at the Kenosha County Courthouse in Kenosha, Wis., November 10, 2021. (Sean Krajacic/Pool via Reuters)

Our Caroline Downey has an excellent post relating the tension, the emotion, and the grave constitutional implications of Kyle Rittenhouse’s testimony in his own defense at his Wisconsin murder trial.

A few legal and tactical points are worth noting.

As I’ve laid out in a column today, the prosecution’s case has been stunningly weak — even to those of us who did not have high expectations for it. Naturally, the question arises: Why let the defendant testify?

After all, the defense seems to be winning the trial decisively, and the prosecution bears the entirety of the burden of proof. That is, the defense can choose to offer no evidence, and rely on the state’s failure to establish guilt. Putting the defendant on the stand not only runs the risk that he will implode and shift the momentum to the prosecution. Once it chooses to present a case, and especially if the defendant testifies, the defense can no longer rely on the government’s paltry case standing alone. The jury is entitled to consider the entirety of the record, including the defense evidence — which sometimes helps the prosecution.

This is a huge risk, so why run it? There are a number of reasons.

(1) The question — why let the defendant testify? — is ill-conceived. The decision whether the accused testifies in his own defense belongs to the accused. The Constitution gives a defendant assistance of counsel, not submission to counsel. The major decisions in a case — whether to plead guilty, whether to testify — are up to the defendant. The lawyers provide their best professional advice, but it’s up to the accused.

We don’t know what happened here, but if Rittenhouse wanted to testify, his lawyers needed to put him on the stand, even if they thought it wasn’t a smart move. Rittenhouse has spent over a year immersed in coverage that occasionally portrayed him as a monster. He will never have a better chance in his life to define himself. He took it.

(2) Rittenhouse appears to be a likeable kid (or at least, not unlikeable). He is no rocket scientist but not dumb, and he obviously feels very strongly that he is innocent. He has clearly been dying to explain why. Critically, he does not have a criminal record to speak of, so the prosecutors cannot paint him as a dyed-in-the-wool bad guy. The examination is focusing on the facts of this case, and here, that helps the defense.

(3) In murder cases, juries want the defendant to get on the stand, look them in the eye, and tell them that he is innocent. It is obviously not required, and juries try hard to follow the court’s instruction that they may not count a defendant’s decision not to testify against him. But a defendant who can pull it off — even one facing more damning evidence than Rittenhouse is — greatly advances his chance of being acquitted.

(4) The prosecutors in this case have been ineffective. Judges, no matter how annoyed they get at the lawyers, try not to bash them in front of the jury. But Judge Bruce Schroeder has lost his patience with these prosecutors a few times. And the worst episodes have involved badgering witnesses — including the prosecutors’ own witnesses — who have not testified as the prosecutors hoped. One defense witness even claimed, credibly, that the prosecutors pressured him, in a private prep session, to change his version of events. Rittenhouse’s able defense lawyers clearly calculated that their client would be obnoxiously badgered by the prosecutor, that Rittenhouse could handle it, and that the defendant would become more sympathetic in the jury’s eyes, while the state seemed more desperate.

It was a good bet. Even in their wildest dreams, the defense lawyers couldn’t have imagined that a prosecutor would flirt with reversible constitutional error by arguably using Rittenhouse’s Fifth Amendment privilege against him, as Caroline’s report details.

Rittenhouse’s testimony is not over yet, but at the moment it seems to be helping the defense materially.

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