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Analyzing Kyle Rittenhouse’s Defense Strategy

There is a lot of misinformation out there concerning Kyle Rittenhouse and the prospects of a conviction. The political lines are being drawn, with the left suddenly playing the role of prosecutor in an apparent role switch. The right, for reasons that ought to shock and appall, is rallying around Rittenhouse. So what is the deal?

What Law Did Rittenhouse Break?

Matters such as self-defense are questions that a jury will answer. They will determine, in accord with Wisconsin law, whether or not Rittenhouse is guilty of first-degree intentional murder, first-degree reckless homicide, and reckless endangerment.

There are two ways the prosecution can approach a case like this. They can do what they did, which is throw every possible charge at Rittenhouse including first-degree murder, or they can attempt a felony-murder prosecution. A felony murder prosecution would be a weaker accusation, but easier to prove.

The only law that Rittenhouse broke that he has absolutely no defense for is being a minor in possession of a weapon. However, this is a misdemeanor, meaning that it cannot trigger felony murder.

But, but… You Cannot Claim Self-Defense if You are Breaking the Law

False. Absolutely false. 

As an example, let’s say you are a convicted felon and someone shoots at you. You can use deadly force to repel the attack or any kind of force for that matter, but you are still guilty of a weapons charge. In Wisconsin, the jury would still be able to hear a self-defense argument unless the activity was of a sort likely to provoke others to attack, and even in that case, the jury would be required to determine what a reasonable person would do in that situation.

The statute is meant to prevent those who operate a criminal enterprise from their domicile from claiming self-defense when their activities draw violence. It does not automatically convert a misdemeanor charge to murder simply because Rittenhouse was under 18 and in possession of a weapon.

Can an Armed Robber Claim Self-Defense?

No. The statute mentioned above eliminates this possibility because robbing someone is an act of provocation. Further, Wisconsin has a felony murder rule that allows prosecutors to charge any homicide occurring during a felony (even a negligent homicide) as murder. 

Analyzing the Defense Strategy

The defense will plead straight self-defense to all the charges, including first-degree murder. This gives the prosecution two options. The first option is to argue their case before a jury. The second is to amend the charges to a felony-murder charge. The latter is easier because they only have to prove that the facts of the felony charge are true. In this case, reckless endangerment would be a felony charge they can use to turn Rittenhouse’s homicides into murders.

If the prosecution chooses to argue their case before a jury, they will search for evidence of premeditation from Rittenhouse’s social media accounts and phone records. Even an offhand comment about Rittenhouse hoping someone tries something at the protest would be enough to show premeditation. 

Talk to a Chicago Defense Attorney

If you are being charged with homicide or murder in the Chicago area, call David Freidberg at (312) 560-7100 to schedule an appointment. 

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