Rittenhouse doesn’t have to prove he acted in self-defense

Rittenhouse doesn’t have to prove he acted in self-defense

The state, not the defendant, bears the burden of proof in self-defense cases.

By John Pfaff

John Pfaff is a professor of law at Fordham University. He is the author of "Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform."

Today at 10:26 a.m. EST

No one disputes that Kyle Rittenhouse, now 18 years old, shot three men and killed two of them during turbulent protests in Kenosha, Wis., that broke out after the shooting of a Black man by White police officers. And it is well known that the central issue of his trial is whether Rittenhouse has a valid self-defense claim for the three shootings. Less familiar to the public, however, is that, by and large, the outcome of Rittenhouse’s case will turn less on the specific murky facts concerning what exactly transpired on the night of Aug. 25 than on the seemingly technical but actually essential issue of the burden of proof: Does Rittenhouse have to prove he was acting in justifiable self-defense, or does the state have to disprove it?

In Wisconsin, the state bears that burden: The prosecution must disprove at least one legal element of Rittenhouse’s self-defense claim, and do so beyond a reasonable doubt. Now, to be clear, that doesn’t mean that Rittenhouse could just pronounce “I did it in self-defense!” and sit down. Rittenhouse bore the “burden of production” — one of the components of burden of proof. That means he had to present facts which, if proved, could be found by a jury to constitute valid defensive force. But the Wisconsin state Supreme Court has made clear that this burden is a fairly low (if meaningful) bar. The narrative that Rittenhouse laid out cleared it; it then fell to the prosecution to disprove at least some part of it. The prosecution may yet prevail in its attempt to disprove beyond a reasonable doubt that self-defense was justified; that’s now up to the jury. But many legal experts have described such an outcome as a long shot.

That the burden of proof is on the state, not the young man wielding the gun, may seem surprising to many, but Wisconsin’s approach is the mainstream one. It may be that Virginia is the last state that requires a defendant to prove he or she was acting in self-defense, after Ohio reformed its law in 2019. State defensive-force statutes often vary widely in how they are written — with differences that can determine whether a defendant is found innocent or guilty — but putting the burden of proof on the prosecution is something nearly all of them have in common.

If nothing else, this burden of proof has significant implications about how we should interpret the verdict, should the jury acquit Rittenhouse. His defenders are sure to frame an acquittal as vindication, but the burden of proof would complicate such a claim. If the jury is at all meaningfully confused about what happened the night the shootings occurred, it should rule in favor of Rittenhouse, even if it has a pretty strong sense that he behaved unreasonably. An acquittal may be far less a vindication of Rittenhouse’s actions, and far more an acceptance of what “beyond a reasonable doubt” means in a situation in which there are significant factual disputes.

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That might be hard for some people to accept. It is easy to envision an acquittal for Rittenhouse leading to calls to change defensive-force laws to make it harder for defendants like him to prevail in the future. But such changes could have unintended consequences that reformers may come to regret. After all, most self-defense cases do not look much like the one inspired by the events in Kenosha.

More of them look like Marissa Alexander’s trial in 2012 for firing a warning shot at her allegedly abusive then-husband, in Jacksonville, Fla. The twists and turns of Alexander’s case illuminate how significant an impact the burden of proof can have. Alexander initially invoked a pretrial hearing to dismiss the charges using Florida’s stand-your-ground law, where — under the law at the time — she bore the burden of proof. She lost at that stage and the case went to trial. At trial, the state bore the burden of proof in establishing that Alexander had not acted in self-defense. She would likely have won, but the judge, shockingly, botched the jury instruction and wrongly told the jury that Alexander bore the burden of proof. Then, while awaiting retrial after her conviction was reversed because of this error — a trial she (again) would probably have won, given the burden of proof — Alexander understandably accepted a plea deal amounting to roughly three months in prison (including credit she received for the nearly three years she had already spent behind bars), and two years of home detention, rather than risk a threatened 60 years in prison.

There is already significant concern that women who defend themselves from domestic violence attacks struggle to get juries and judges to believe their defensive-force claims. If the burden of proof were placed on defendants in such cases — consistently, and not in the ad hoc way it happened in Alexander’s trial — how many more victims of domestic violence who try to protect themselves would find themselves enduring long prison sentences? The tricky public-policy issue is that rules that make it easier for Rittenhouse to escape punishment also protect people like Alexander.

Consider, too, the case of Breonna Taylor, the Louisville woman who was killed when the police fired more than 30 shots in her home during a botched late-night raid. While Kentucky’s defensive-force law has protected the officers who killed Taylor, it is also why the local prosecutor dropped assault and attempted murder charges against Kenneth Walker, Taylor’s boyfriend, who fired a shot at the police as they entered, hitting an officer in the thigh. That same high burden of proof also protected Walker, who claimed the police had failed to announce themselves and thus seemed to him like intruders.

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Again, shifting the burden of proof to defendants would make it easier to convict both the police officers and those who reasonably defend themselves against the police in ambiguous situations. Police officers who face charges for using force already have significant advantages that civilians do not. The net effect of weakening defenses for the average person might not be a step forward.

One factor that clearly distinguishes Rittenhouse from Alexander is the open carrying of a gun. It is certainly fair to raise concerns that our current defensive-force laws and the growing embrace of open-carry laws are increasingly in tension with each other. But that is not necessarily an argument for responding to high-profile cases by making it easier for prosecutors to defeat all defensive-force claims — which lowering the burden of proof would do. We should keep in mind that there will always be more Alexanders than Rittenhouses.