I’ve been watching the Kyle Rittenhouse trial intermittently, and following along on Twitter. I wrote about the case here shortly after the incident, and things have shaken out just about as I described them.
One Blockbuster Fact: Item X
I’ve talked before about blockbuster evidence: evidence that is dispositive, incontrovertible, and unforeseen, so that it may change the minds of jurors who have already made up their minds (which has mostly happened by the end of opening statements).
The one potential blockbuster I saw in the trial was a drone video, described as “Item X,” of some of the events of that night, which the State enhanced to purportedly show Rittenhouse pointing his rifle at another person (Josh Zeminski, who was armed with a pistol) shortly before shooting Rosenbaum.
As I understand it, the State got Item X after trial had started. The state’s expert was not able to testify to how the algorithm to enhance it worked, on which grounds the defense objected. More about admissibility later. But I’m not sure that the evidence is dispositive: Rittenhouse testified …
A Digression:
Here the defense put on a case, which it might not have needed to, and Rittenhouse testified, which he might not have needed to, except that his lawyers had promised in opening that he would.
Either of these things could have made the case worse for Rittenhouse.
Rittenhouse did well on direct and cross (as his lawyers knew he would, due to enough preparation, likely including a mock cross by someone not on the defense team) and the prosecutor didn’t do a great job on cross (as I think Rittenhouse’s lawyers expected). I think the jury in a self-defense case expects to hear from the accused, despite repeated admonishments to the contrary, which is why his lawyers would have made this promise in the first place.
On the other hand, putting on a case prolongs a trial, and gives an ill-prepared adversary an opportunity to dig up more evidence.
This is very common, and has to be taken into account when you decide whether to put on a case or another witness.
As I was saying before I interrupted, Rittenhouse testified that he didn’t point his rifle at Zeminski, so the evidence might, if accepted as showing what the State claims it shows, serve to impeach Rittenhouse on a collateral matter.
But having pointed his rifle at Zeminski would not mean that he had to take the beating that Rosenbaum had promised him before chasing him across the parking lot, nor that he had to let Huber beat him to death with a skateboard, nor that when Grosskreutz pointed his gun at him (as Grosskreutz admitted, in a great moment on cross-examination, he had done) he had to let Grosskreutz pull the trigger.
Watching the charge conference—the discussion among the lawyers and the court of how the jury should be instructed—after having written that, I see that the State’s argument is that Rittenhouse pointing his rifle at Zeminski, after Rosenbaum threatened to kill Rittenhouse, provoked Rosenbaum to actually attack him. I wonder, then, why the State didn’t call Zeminski as a witness. The Big Problem with the State’s provocation theory is that the Wisconsin jury instruction on provocation provides, in part:
if the attack which follows [the provocation] causes the person reasonably 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 or great bodily harm unless he reasonably believes he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.
Applying the apparent facts to the law, even if the State convinces the jury beyond a reasonable doubt that Rittenhouse provoked Rosenbaum’s attack by pointing his rifle at Zeminski, they still have to prove that Rittenhouse did not reasonably believe he had exhaused every other reasonable means to avoid great bodily harm at Rosenbaum’s hands when he spun around and shot him.
Admissibility of Video, Generally
Before a jury hears or sees some piece of evidence, it should be shown to be admissible. The facts showing that the evidence is admissible is the predicate for admitting that evidence.
Generally, to be admissible (in the face of an objection—everything is admissible if nobody objects) evidence must be:
Authentic;
Relevant;
Not hearsay; and
Not privileged.
Privileged evidence is evidence that is specially protected by some law. Some examples are attorney-client communications, spousal communications, and the identity of an informant.
Hearsay is a statement made outside court offered to prove what the statement says (“the truth of the matter asserted”).
Evidence is generally relevant if it tends to make the existence of some fact that is at issue in the case either more or less probable. There are some exceptions. For example, while we all expect people to act in conformity with their own character, evidence of character is not admissible to prove that a person acted in conformity with that character on a particular occasion. And relevant evidence may be excluded because its value as proof of a fact at issue is substantially outweighed by its prejudicial effect.
Evidence is authentic if it is what it purports to be.
For a video to be admissible, it has to be relevant (purport to show something that makes a fact at issue more or less probable), has to be non-hearsay (not contain people saying things that you are trying to prove), has to be unprivileged, and has to be authentic.
Video evidence from unattended cameras (for example, security cameras) is often offered as evidence. It can be authenticated with the testimony of someone who saw the same thing that it is an accurate depiction of what the human eye saw. This may be a hole in the evidentiary rules. Absent such testimony, however, there has to be some evidence to convince the judge that the image is not altered or downright fabricated.
The only case that I know of discussing this is the 2014 California traffic-ticket case of People v. Goldsmith, in which the Supreme Court of California upheld the admission of unattended red-light-camera images and video based on testimony about the independent operation of the recording system:
[T]he record contains no evidence that the ATES evidence was materially altered, enhanced, edited or otherwise changed; rather it consisted of entirely automatically produced photos and video and contemporaneously recorded data.
The scarcity of such cases means to me that lawyers aren’t snapping to this issue and hitting this objection hard when video is offered without an eyewitness to authenticate it (or if they are hitting it, they aren’t losing).
Admissibility of Item X
Here the video evidence is drone footage. The video was described, when it was offered into evidence, as “Item X.” I can find no testimony about its provenance. I don’t see that anyone testified that it accurately depicted what it purports to, nor do I see that anyone testified to how the video was made. The defense didn’t object to its admission.
I’m not sure why Item X was admitted in the first place. Three guesses:
The defense didn’t snap to the issue.
The defense snapped to the issue, but thought they would lose the objection, and have strategically been objecting as little as possible before the jury (a valid strategy, albeit frustrating to appellate lawyers).
The defense looked at it, saw that it showed Rosenbaum chasing Rittenhouse before Rittenhouse spins around and snaps off four shots at him at near-contact range, and decided that they’d rather the jury saw Item X than not.
My best guess is the third one.
Admissibility of the Enhanced Image
But then the State “enhanced” some frames from Item X and claimed that they showed Rittenhouse pointing his rifle at Zeminski, which provoked Rosenbaum to attack Rittenhouse.
If anything can go wrong at trial, it will, and I have to wonder whether Rittenhouse’s lawyers, if they had a do-over, would try to keep Item X out of evidence entirely.
Because now, with Item X already in evidence (too late for a do-over), instead of the problem of unattended camera footage with no sponsor to say that the footage accurately represents what it purports to, we have the problem of “enhancement” of images therefrom. The State’s expert was not able to explain to the jury how the software performed the enhancement, just claiming that it was “the gold standard” and “repeatable.”
This is the first time I’ve seen a court fight about photo enhancement.
We use photo enhancement algorithms seamlessly in our everyday lives. But most people’s everyday lives don’t determine whether a young man goes to prison for a long time. The algorithm doesn’t know anything about Kyle, so it shouldn’t be biased specifically against him. But that doesn’t matter; what matters is whether the final product depicts what it purports to. Bottom line, laying the foundation for admitting evidence is its proponent’s responsibility, and that means that the state had to prove that the enhancement accurately represented at least the original video.
Rittenhouse’s second-chair lawyer, Corey Chirafisi, got the expert to admit that he couldn’t say that the enhanced video accurately represented the original video; that admission should have been sufficient to exclude the video.
I might have gone one step further and established that he couldn’t say that the enhanced video accurately depicted what it purported to, because that’s the only question that matters.
The Lawyering
The lead prosecutor, Thomas Binger, is a really bad lawyer. He dresses badly, he presents poorly, his tone is inappropriate, he argues with and interrupts the judge (and chastises the judge for interrupting him). He fails to object to inadmissible testimony, and then complains when he tries to elicit inadmissible testimony and the defense’s objection is sustained. He has a tenuous grasp, at best, on the rules of evidence and constitutional law.
The second-chair lawyer, James Kraus, appears to be a better lawyer, but that’s not saying much.
I’m really impressed with Chirafisi, and no less impressed with Rittenhouse’s lead lawyer, Mark Richards, for letting his second-chair do most of the heavy lifting on cross-examination.
More thoughts about the lawyers, for subscribers, below.
Three Examples of Binger’s Incompetence
“Describe in your own words…”
Substack Youtube video embed by time seems not to have worked. I’ll have to figure that out. Jump to 3:56:24, or use this URL:
http://www.youtube.com/watch?v=mlTgJ5W1mSA&t=14182s
Binger asks the witness, “Can you tell us in your own words how you were feeling at that moment [after seeing the shooting]?”
How he was feeling in that moment is irrelevant. It doesn’t help prove or disprove anything at issue in this self-defense/murder case. There’s no objection, but it’s a bad question because it opens the door to other questions about how this witness (who is not hostile to Rittenhouse) is feeling, and why.
“Guessing”
Jump to 4:45:35.
Binger: You have described your impressions of what Mr. Rosenbaum was meaning to do or intending to do in his final physical acts towards the defendant … You don’t know, as you sit here today, what Mr. Rosenbaum was thinking … your interpretation … is complete guesswork, isn’t it?
Witness: Well, he said ‘fuck you’ and then he reached for the weapon.
The First Rule of cross-examination is, “never ask a question to which you don’t know the answer.” There are good reasons to violate the rule, but you have to be really good at this—much better than Binger is—to discern them. The rule, like all good rules, is the rule for good reason: most people don’t have the sense to know when to break it.
This was not cross-examination. This was Binger’s own witness. He shouldn’t even have been permitted to ask this question in leading form. And the first rule of cross-examination applies equally when you are compelled to take on direct a witness who you don’t know to be a) on your team; and b) smart enough to see where you are going. Unless you know that a witness fits that description, expect him to give a bad (for you) answer to any question that you haven’t already seen him answer favorably.
Binger got a bad answer. He was lucky that the answer wasn’t much worse. (Further discussion below, for subscribers.)
“Final Question”
Jump to 4:51:20: “Final question.” This is another good example of a lawyer violating the first rule of cross-examination without good reason. Binger wants McGinnis to say that he was scared because there were people with guns. McGinnis says that he was scared because of the violent atmosphere, but the guns brought home to him the danger that surrounded him. This does not help Binger make his case, but instead evokes an atmosphere of menace, in which a reasonable person might have been more likely to see threats of serious bodily harm, and so to respond with deadly force to an actual attack.
Everyone Can Be Right
One last Rittenhouse thought for free readers:
The public discourse over this trial has largely been about whether the guys who Rittenhouse shot were right to do what they did that got them shot.
It mostly doesn’t matter.
Aside from the issue of provocation, whether Rittenhouse acted in self-defense does not depend on what was in the minds of the people he shot, but only on what was reasonably in his mind.
If, for example, Rosenbaum had probable cause to believe that Rittenhouse had committed a felony (assault with a deadly weapon?) by pointing a rifle at Zeminski, he may have been privileged to perform a citizen’s arrest. And maybe that’s what he was doing when he chased Rittenhouse. He may have been right, even if Rittenhouse hadn’t in fact committed a felony.
But whether Rittenhouse was privileged to use force against Rosenbaum depends on whether Rittenhouse reasonably believed that Rosenbaum was going to unlawfully interfere with his person. Rittenhouse, too, may have been right, even if Rosenbaum was just trying to arrest him with probable cause.
(As it happens, Rosenbaum had twice before attempted suicide, and I tend to think this—rather than a citizen’s arrest—was his intention when he went after a guy with a rifle.)
This video shows Rosenbaum that evening telling someone, “Shoot me, nigga." The bearded guy in the black beanie over Rosenbaum’s left shoulder is Zeminski, at whom Rittenhouse allegedly pointed his rifle, and who fired his own pistol into the air a moment before Rittenhouse spun around and killed Rosenbaum.
Likewise, Grosskreutz may have thought he was lawfully disarming an imminent threat when he approached Rittenhouse with his Glock drawn. But what matters in this trial is whether, when he pointed his pistol at Rittenhouse, Rittenhouse reasonably believed that Grosskreutz was going to unlawfully use deadly force against him. If so, Rittenhouse was justified in disarming Rosenbaum.
It’s probably small comfort to Grosskreutz or the family of Huber, who may also have reasonably believed he was using force in defense of others when he whacked Rittenhouse with a skateboard, but everyone can be right. You can be right, and still wind up dead (or on trial for your life).