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Here's why people shot by Kyle Rittenhouse can be called "rioters," "looters" and "arsonists" – but not "victims" at trial

Judge sets rules for Kyle Rittenhouse trial
Judge sets ground rules for Kyle Rittenhouse trial 01:29

A Wisconsin judge presiding over the upcoming trial of Kyle Rittenhouse has ruled that prosecutors cannot refer to the three people shot by the teenager last summer as "victims." However, the defense may refer to them as "arsonists," "looters," or "rioters" if they can prove they participated in those activities.

Kenosha County Circuit Court Judge Bruce Schroeder made the decision Monday at a pretrial hearing where the parties debated several issues ahead of next week's trial, including permissible terminology, witness accounts and evidence. Schroeder said he wouldn't prevent the defense from calling those who were shot such language if the defense can produce evidence to back up the claims. 

Prosecutor Thomas Binger reportedly called the decision by Judge Bruce Schroeder "a double standard."

However, barring the term "victim" at trial is not necessarily the norm but varies from courtroom to courtroom at the judge's discretion, according to Keith Findley, a professor at the University of Wisconsin Law School. 

Findley explained the judge is differentiating the facts of the case from the questions the jury must answer. Since Rittenhouse is claiming he acted in self-defense, the question is not who shot three people, killing two of them, but rather if Rittenhouse was justified in defending himself out of fear of bodily harm. If his lawyers can show he had reason to believe the men were each engaged in activities such as looting, rioting and arson at the time, that could sway the jury to accept Rittenhouse's defense.

"On the other hand, it still is prejudicial because it runs the risk of signaling to the jury or inducing the jury to decide the case on a matter that's not really appropriate or relevant, and that is whether these were bad people, or somehow less deserving of protection from the law," Findley told CBS News. "There is some risk that using sort of loaded words like that will induce the jury or make it more likely the jury decides the case on an impermissible basis."

Kyle Rittenhouse
Kyle Rittenhouse on October 30, 2020, in Waukegan, Illinois. Nam Y. Huh / AP

Under Wisconsin law, the charge of first-degree reckless endangerment of safety requires prosecutors to demonstrate that the defendant acted with "utter disregard for human life." With rulings like these from the bench, Findley says the state is facing an uphill battle toward conviction. 

Prosecutors can use other terms when referring to those who were killed and injured that night, such as their names, decedent, or the deceased person Rittenhouse shot.

Judge Schroeder has also decided to allow the defense to show the jury a video taken prior to the shooting which shows police telling Rittenhouse and other armed militia members on the streets that night that they appreciated their presence and tossing Rittenhouse a bottle of water. They argued that it shows their client was not acting recklessly that night.

However, prosecutors argued the video would turn the trial into a referendum on police procedure that night when it isn't relevant. 

"This is a case about what the defendant did that night," Binger said, according to the Associated Press. "I'm concerned this will be turned into a trial about what law enforcement did or didn't do that night."

Judge Schroeder disagreed. "If the jury is being told — if the defendant is walking down the sidewalk and doing what he claims he was hired to do and police say, 'Good thing you're here,' is that something influencing the defendant and emboldening him in his behavior? That would be an argument for relevance," he said, the AP reported.

While videos like this can be permissible, Findley notes they risk influencing the jury about the relevance as to the police's opinion of whether Rittenhouse's presence in Kenosha that night was justified.

"The problem here is that while this evidence may have some limited relevance, it has also a very substantial risk that it will be misused. And therefore that's a form of prejudice," Findley said.

Rittenhouse, who was 17 at the time of the shooting, was charged as an adult with two counts of first-degree homicide and one count of attempted homicide. He also faces charges of recklessly endangering the safety of two other victims and possessing a weapon while under the age of 18. He has pleaded not guilty to all charges.

Prosecutors allege on August 25, 2020, during the third night of protests over the police shooting of Jacob Blake, a 29-year-old Black man who was left paralyzed, Rittenhouse fatally shot Joseph Rosenbaum and Anthony Huber and wounded a third person with an AR-style rifle.

According to court documents, Rittenhouse traveled from his home in Antioch, Illinois, to patrol Kenosha during the unrest, when he shot and killed Rosenbaum after a brief altercation in a parking lot in which Rosenbaum tried to take his gun. The incident was caught on video, and as Rittenhouse ran away he was seen making a phone call saying "I just killed somebody." 

As he fled the scene, videos show a group of people pursuing Rittenhouse saying "beat him up!", "hey, he shot him!", "get him! Get that dude!" Rittenhouse then allegedly tripped and fell to the ground, at which point Huber, seen holding a skateboard, tried to take his gun when Rittenhouse allegedly shot and killed him. Shortly after Huber was shot, Rittenhouse also allegedly shot a third victim, Gaige Grosskreutz, in the arm. Grosskreutz reportedly was holding a handgun at the time he was shot. Rittenhouse's lawyers claim he acted in self-defense.  

Rittenhouse can be seen in cellphone video walking away from the scene of the second shooting towards police vehicles while still armed and with his hands raised. The teenager was able to leave downtown Kenosha unstopped by police. Rittenhouse then returned home to Illinois before being extradited to Wisconsin after his arrest a month later.

Rittenhouse's trial is scheduled to begin on November 1.

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