A judge’s decision that the word “victim” generally could not be used in court to refer to the people shot by Kyle Rittenhouse after protests in Kenosha, Wis., last year drew widespread attention and outrage this week. But legal experts say that determining who should be considered a victim — in a case that hinges on Mr. Rittenhouse’s assertion of self-defense — is at the center of what jurors must decide in his trial, expected to begin next week.
Mr. Rittenhouse, who has been charged with six criminal counts, including first-degree reckless homicide, first-degree intentional homicide and attempted first-degree intentional homicide in the deaths of two men and the wounding of another, is expected to argue that he fired his gun because he feared for his life. Prosecutors say he was a violent vigilante who illegally possessed the rifle and whose actions resulted in chaos and bloodshed.
The shootings occurred two days after a Kenosha police officer shot Jacob Blake while trying to arrest him on a warrant, setting off widespread protests over police conduct. The dual scrutiny expected at the trial — of Mr. Rittenhouse but also of the three people he shot — became clear this week when Judge Bruce Schroeder of Kenosha County Circuit Court reiterated a longstanding rule on criminal cases in his courtroom: that the word “victims” may not be used before the jury in reference to those killed or injured.
This week, as Judge Schroeder ruled on a motion by the prosecution, he also said that he would allow the terms “looters” and “rioters” to be used to refer to the men who were shot — Joseph Rosenbaum, Anthony Huber and Gaige Grosskreutz — if the defense is able to establish evidence that they were engaged in those activities that night.
Prosecutors vehemently disagreed, saying that such words were “loaded” and inappropriate to describe men who had been shot, two fatally. Mr. Huber, who died, had come to downtown Kenosha in August 2020 to participate in protests of the police shooting; Mr. Rosenbaum, who was also killed, had joined the crowd for reasons that are unclear; and Mr. Grosskreutz was in Kenosha to volunteer as a medic at the protests.
“Let the evidence show what the evidence shows,” Judge Schroeder said, adding that if the evidence demonstrated that the men shot were engaged in such behavior, “then I’m not going to tell the defense they can’t call them that.”
Judge Schroeder’s rule on the word “victim” is not the norm in Wisconsin courtrooms, but it is not unheard-of, legal experts said. The experts said the term “victim” can appear prejudicial in a court of law, heavily influencing a jury by presupposing which people have been wronged.
State law in Wisconsin allows a person to fire in self-defense if the shooter “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself.”
A lawyer for Mr. Rittenhouse, who has said he traveled to Kenosha to protect businesses and help people injured during protests, has said that Mr. Rittenhouse was being pursued and feared for his life in the chaotic aftermath of a third night of protests.
“In a self-defense case, the people who were shot are to some extent on trial,” said Keith Findley, a law professor at the University of Wisconsin. “The jury has to assess whether they were posing a threat of death or great bodily harm to Rittenhouse. To assess that, you have to look at their behavior and you have to look at what Rittenhouse was aware of.”
Judge Schroeder, who has been on the bench in Wisconsin for several decades, has spent many pretrial hearings in the Rittenhouse case this year parsing language, terminology, past behavior of the men who were shot and the actions of Mr. Rittenhouse in the months leading up to the shootings.
Prosecutors have repeatedly tried to introduce evidence of Mr. Rittenhouse’s associations with the far-right Proud Boys, as well as a cellphone video taken weeks before the shootings in Kenosha in which Mr. Rittenhouse suggested that he wished he had his rifle so he could shoot men leaving a pharmacy. The judge did not allow either as evidence for trial.
In September, the judge denied a request from prosecutors to admit a video taken several months before the shooting that showed Mr. Rittenhouse hitting a teenager in the midst of a fight that involved his sister.
Defense lawyers have attempted to introduce evidence at trial that Mr. Rosenbaum had a criminal history, but Judge Schroeder denied those motions.
During Monday’s hearing, Corey Chirafisi, a lawyer for Mr. Rittenhouse, argued that the jury should hear more about “the totality of the circumstances,” expanding on a defense motion arguing that Mr. Rosenbaum threatened people and was “throwing homemade gas bombs” on the night Mr. Rittenhouse shot him.
“All of that lawlessness, all of the facts and circumstances surrounding what is going on is relevant in terms of Kyle Rittenhouse’s conduct,” Mr. Chirafisi said.
Thomas Binger, a prosecutor, argued that the judge was creating a “double standard” and said that the words he sought to have prohibited — relating to rioting and other damage — were “as loaded, if not more loaded, than the term ‘victim.’”
Mary D. M. Fan, a law professor at the University of Washington, said there was precedent for judges to express concern about use of the term “victim” in cases where it is contested whether a crime occurred.
“The defense is usually particularly concerned with judges using the term ‘victim’ in jury instructions,” she said, “arguing it violates due process for the judge to suggest the contested issue is resolved against the defense before the jury gets to decide.”
Kimberley Motley, a lawyer who represents Mr. Grosskreutz and the estate of Mr. Rosenbaum, said on Wednesday that she considered all three men who were shot that night to be victims.
“The question is whether legally Kyle Rittenhouse made them a victim,” she said, “and whether his actions were justified.”
