# The Rittenhouse trial **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [November 4, 2021, 2:56pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798 "2021-11-04T14:56:58Z")\ **Posts on this page:** 20\ **Page:** 61
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [November 19, 2021, 8:48pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1203 "2021-11-19T20:48:55Z")
> [@CoolHandCox](#): > > Like, if I were a juror, knowing what I’ve just learned, I’d know that process had occurred and the Judge determined there was some merit to a self-defense claim - whether I was actually told that during the trial or not. Don’t confuse “merit” with evidence. All of the evidence could be the most obvious of fabrications, or extremely feeble, but it still counts as evidence, no matter how not-credible. So, if a defendant presented literally the weakest evidence possible on each element of self defense, the prosecution would then have the burden. It’s not a ruling that there’s merit to the claim. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 19, 2021, 8:50pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1204 "2021-11-19T20:50:27Z")
> [@Martin\_Hyde](#): > > The core part of the instructions, for example these are from Wisconsin’s model jury instructions (which most judges follow verbatim): > > > [@](#): > > > > The State must prove by evidence which satisfies you beyond a reasonable doubt that the > > defendant did not act lawfully in self-defense > > I think what you’re getting at, is will the jurors know the judge considered at least the “claim” of self-defense valid. That’s what I was getting at, but it’s not a big thing like I was thinking it might be. It’s like knowing/understanding police had probable cause to make an arrest or something similar to that. I do think who has the burden is a big thing. Up to people to change the law if they so desire. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [November 19, 2021, 8:52pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1205 "2021-11-19T20:52:28Z")
> [@eschrodinger](#): > > This sounds mixed up to me, but perhaps it’s just confusingly worded. Possibly so. > [@](#): > > States that require a defendant to prove an affirmative defense typically have a standard of proof of a preponderance. Yes–which I believe we have both said, unless I misunderstand. > [@](#): > > There’s still a threshold to get a jury instructed (sufficient evidence for a jury to make that finding) Yes, but I think the specifics here actually do vary a good bit from State to State. As I see this referenced in different ways in different States. > [@](#): > > but the prosecution doesn’t have to disprove self defense. I think this is incorrect, functionally they do. The burden of proof in these cases will generally hold that the prosecution must demonstrate beyond a reasonable doubt, that the defendant did not act in self-defense. I would say that’s quite literally “having to disprove” it, although maybe there’s a English usage quibble afoot there, I’m not sure. > [@](#): > > In states where the prosecution has the burden to disprove the defense, the defendant typically has a burden of production of either a prima facie case or some evidence of self defense. Then the state has to disprove it. I would agree, and I think this is what we both had said previously? ---
**Author:** ![Son\_of\_a\_Rich](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/son_of_a_rich/32/5439_2.png) [@Son\_of\_a\_Rich](https://boards.straightdope.com/u/Son_of_a_Rich)\ **Post date:** [November 19, 2021, 8:53pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1206 "2021-11-19T20:53:22Z")
I trollishly said on FB: “Trump says Kyle is like the son he never had”. I’m waiting on replies. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [November 19, 2021, 9:03pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1207 "2021-11-19T21:03:52Z")
The Uncle Jimbo and Ned defense? > **[It's Coming Right For Us - South Park | South Park Studios US](https://southpark.cc.com/video-clips/9b5egn/south-park-it-s-coming-right-for-us)** > > Stan won't shoot a rabbit, despite pressure from Uncle Uncle jimbo and Cartman. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [November 19, 2021, 9:06pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1208 "2021-11-19T21:06:56Z")
> [@Martin\_Hyde](#): > > I think this is incorrect, functionally they do. The burden of proof in these cases will generally hold that the prosecution must demonstrate beyond a reasonable doubt, that the defendant did not act in self-defense. I would say that’s quite literally “having to disprove” it, although maybe there’s a English usage quibble afoot there, I’m not sure. No, I’m quite sure this is wrong. Looking for a cite. In states that require defendants to _prove_ the affirmative defense, there is no burden shifting to the state on that defense. The prosecution does not have to disprove it. If there’s sufficient evidence for a jury to find either way on the defense, it goes to the jury to determine if it’s been proved by the defendant by a preponderance. The risk of the evidence being in equipoise goes to the defendant – that is, if the jury decides that they can’t tell if it was self defense, then, in those jurisdictions, the defense _fails._ ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 19, 2021, 9:09pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1209 "2021-11-19T21:09:31Z")
I would agree. That is what I was thinking of as a “classic” affirmative defense. Basically, I admit murder (criminal killing), but say it is in self-defense. _I must prove_ it was self-defense, and if I don’t prove that, I’m left with murder. I’m definitely open to be wrong. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [November 19, 2021, 9:19pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1210 "2021-11-19T21:19:01Z")
The next time someone disagrees with me, I should do two things: 1. Get a gun, the bigger, the better, and 2. Ask him to hit me, so I can 3. Kill him. I now have _precedent!_ ---
**Author:** ![Babale](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/babale/32/15666_2.png) [@Babale](https://boards.straightdope.com/u/Babale)\ **Post date:** [November 19, 2021, 9:19pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1211 "2021-11-19T21:19:52Z")
> [@Martin\_Hyde](#): > > That is the mindset that led to decades of widespread lynching in the United States and is disgusting and abominable. I’m pretty sure the mindset that led to lynching in the United States had to do with certain views on the different races and what their relationship with one another should be. YMMV. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [November 19, 2021, 9:32pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1212 "2021-11-19T21:32:06Z")
Yes. But not in Wisconsin. @Martin_Hyde Patterson v. New York, 432 US 197 (1977) upheld placing the burden for an affirmative defense on the defendant, with no burden for the prosecution to disprove. (It was extreme emotional disturbance in that case). Dixon v. US, 548 US 1 (2006) upheld it for a duress defense. As long as the burden of disproving an element that defines the offense isn’t placed on the defendant, it’s constitutional. Ah. Found the cite. Martin v. Ohio, 480 US 228 (1987): (From the syllabus) > It is not a violation of the Due Process Clause for Ohio to place the burden of proving self-defense on a defendant charged with committing aggravated murder. There is no merit to petitioner’s argument that it is necessary under Ohio law for the State to disprove self-defense since both unlawfulness and criminal intent are elements of serious offenses, while self-defense renders lawful that which would otherwise be a crime and negates a showing of criminal intent. I don’t know which states do it this way, but some do, and it’s permitted by the Constitution. ---
**Author:** ![CoolHandCox](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/coolhandcox/32/16233_2.png) [@CoolHandCox](https://boards.straightdope.com/u/CoolHandCox)\ **Post date:** [November 19, 2021, 10:01pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1213 "2021-11-19T22:01:21Z")
Right, in Wisconsin, the burden of proving Defendant did not act in self defense is on the State; whereas in other “classic affirmative defense” States the burden is on the Defendant to prove that he acted in self-defense. It’s a subtle, but big difference. Like NFL overturning a call via replay. Whatever was called on the field is pretty beneficial (ie, the initial burden). The burden is the call on the field is correct, unless replay can convincingly (or whatever the standard is) prove that the call was incorrect. Not impossible to overturn, but _harder_. For self defense comparisons, if the burden is on the defense, the “call on the field” is he did not act in self defense and the defense must prove he did. If the burden is on the prosecution, the “call on the field” is that Defendant did act in self defense and the prosecution must prove he did not. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [November 19, 2021, 10:01pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1214 "2021-11-19T22:01:54Z")
> [@Musicat](#): > > The next time someone disagrees with me, I should do two things: > > 1. Get a gun, the bigger, the better, and > > 2. Ask him to hit me, so I can > > 3. Kill him. I now have _precedent!_ Precedent for self defense goes back hundreds of years. What have you been waiting for? ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [November 19, 2021, 10:02pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1215 "2021-11-19T22:02:03Z")
> [@Babale](#): > > I’m pretty sure the mindset that led to lynching in the United States had to do with certain views on the different races and what their relationship with one another should be. YMMV. You’re absolutely right that it was rooted on their views on the nature of race and the relationships between different races but that in and of itself doesn’t explain the frequency of lynching between 1877 and 1939. One of the reasons lynching was so prevalent in the United States, particularly in the South, is because the people had no confidence in the ability of the system to deal with the “Negro problem.” When witnesses/participants of lynching were interviewed and asked why they didn’t let the judicial system do its job they often voiced fears that they couldn’t trust the courts to come to a “fair” verdict as the system was designed for civilized whites. Lynching as an American past time didn’t end because someone passed a law. They simply became too embarrassing to sustain and people grew confident that the legal system could control blacks. Not that I think being pissed off at the verdict means we’re adopting the attitude of those who lynched. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [November 19, 2021, 10:22pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1216 "2021-11-19T22:22:33Z")
I don’t think any of that fully encompasses the reasons for lynching, which were more like racist moral panic and so little regard for the humanity of black people that a lynching could be seen an occasion for a nice picnic. Comparing it to people being upset by the result in this case is way inappropriate, I think. ---
**Author:** ![FoieGrasIsEvil](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/foiegrasisevil/32/16638_2.png) [@FoieGrasIsEvil](https://boards.straightdope.com/u/FoieGrasIsEvil)\ **Post date:** [November 19, 2021, 10:29pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1217 "2021-11-19T22:29:47Z")
Decades? _Give us Barabbas!_ ---
**Author:** ![Odesio](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/odesio/32/20003_2.png) [@Odesio](https://boards.straightdope.com/u/Odesio)\ **Post date:** [November 19, 2021, 10:40pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1218 "2021-11-19T22:40:13Z")
> [@eschrodinger](#): > > I don’t think any of that fully encompasses the reasons for lynching, which were more like racist moral panic and so little regard for the humanity of black people that a lynching could be seen an occasion for a nice picnic. You’ll note that I did type “one of the reasons” rather than stating a lack of confidence was the entire reason for the phenomenon. But, yes, I do agree that comparing lynching to people upset about the results of the trial is inappropriate. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 19, 2021, 11:50pm UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1219 "2021-11-19T23:50:15Z")
Murder is legal for some people. I guess that’s not really new. [Kyle Rittenhouse not guilty on all charges: Live updates](https://amp.cnn.com/cnn/us/live-news/kyle-rittenhouse-trial-verdict-watch-11-19-21/index.html) ---
**Author:** ![Son\_of\_a\_Rich](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/son_of_a_rich/32/5439_2.png) [@Son\_of\_a\_Rich](https://boards.straightdope.com/u/Son_of_a_Rich)\ **Post date:** [November 20, 2021, 12:11am UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1220 "2021-11-20T00:11:18Z")
If I was him, I’d get lipo on my face and grow a beard. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 20, 2021, 12:17am UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1221 "2021-11-20T00:17:02Z")
I wonder whether it’s still possible for the federal government to bring charges, like they used to do in the 1960s. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [November 20, 2021, 12:18am UTC](https://boards.straightdope.com/t/the-rittenhouse-trial/953798/1222 "2021-11-20T00:18:36Z")
> [@Loach](#): > > Precedent for self defense goes back hundreds of years. What have you been waiting for? It has historically been a more difficult defense to mount. At least for some people. I suppose in a way we are returning to our historical roots. Certain folks get to kill other folks. [Previous page](https://boards.straightdope.com/t/the-rittenhouse-trial/953798.md?page=60) [Next page](https://boards.straightdope.com/t/the-rittenhouse-trial/953798.md?page=62)