Rittenhouse Trial Day 9: Prosecution Big Win On “Provocation” Jury Instruction Saves Chance At Conviction

Today was the ninth day of the trial by which ADA Thomas Binger is seeking to have Kyle Rittenhouse convicted and sentenced to life in prison for having shot three men (two fatally) the night of August 25, 2020, in Kenosha WI, when the city was suffering a tsunami of rioting, looting, and arson following the lawful shooting of a knife-wielding Jacob Blake by Kenosha police officers.

Today the parties argued over what instructions should be given to the jury for their use in deliberating the guilt (or not) of Kyle Rittenhouse for any criminal charges for which he’s currently on trial.

Naturally, the jury was not present for this discussion.  The jury will return to court on Monday morning, at which point the judge will give them the final set of jury instructions, the State will present its closing argument, the defense will present its closing, and then the State will have a rebuttal argument.

At that point, the jury will begin its deliberations, and I’ll switch over to “Jury Watch!” mode.

For today, however, I wanted to share the court’s decisions on jury instructions, the jury instructions themselves, and some of the more important legal concepts to understand being applied in these instructions.

Big Win for the Prosecution:  Saved by Judge Allowing Provocation Instructions

Much of the day’s argument over jury instructions centered on the instructions dealing with the legal doctrine of provocation—and that’s because an attack through the doctrine of provocation is the only desperate hope the State has for overcoming Kyle’s powerful claim of self-defense and obtaining convictions on the use-of-force charges against him.

Of the six counts brought against Kyle Rittenhouse in this trial, five are use-of-force felonies (the other is the misdemeanor gun possession charge already discussed).  To each of those felony charges, Kyle has raised the legal defense of self-defense.  To convict on any of those, then, the State must disprove self-defense beyond a reasonable doubt.  How might the State do this, given that it has introduced little if any evidence attacking the core elements of Kyle’s self-defense?

By attacking Kyle’s claim of self-defense through the doctrine of provocation.

I expect the State’s central attack on Kyle’s core legal defense of self-defense to come in the form of a narrative of either simple provocation or provocation with intent.

Simple provocation occurs when the defendant engages in unlawful conduct likely to provoke a violent response. When that violent response occurs, the simple provoker cannot claim self-defense for resistance until they exhaust every possibility of avoiding the need to use force, including retreat–where a duty to retreat would not exist in an otherwise lawful act of self-defense.

Provocation with intent occurs when the defendant deliberately provokes a violent response, with the intent of then having an excuse to use deadly force against the person provoked.  Importantly, the provoker with intent cannot regain self-defense by withdrawal and communication—on the other hand, the State must prove that malicious intent beyond a reasonable doubt.

I expect that the State’s argument to the jury during closing arguments on Monday will be structured around this legal doctrine provocation in one of those two forms.

This is why the “unicorn” evidence of the drone video and the “enhanced” images from that video have been so important to the State, and why they fought so hard to get them admitted into evidence.  With that material in evidence, the State can at least argue provocation.  Without that material in evidence, the State would have no substantive attack on self-defense at all.

For example, the State may argue that Kyle was a simple provoker who committed an unlawful act by pointing his rifle at Joshua Ziminski, thus provoking a reasonably foreseeable violent response from Rosenbaum.  Although Kyle then fled, the prosecution would argue that he could have fled further than he did, and thus failed to exhaust every possible means of avoiding having to use defensive force.  This would mean he had not regained the privilege of self-defense that he lost by his simple provocation.

Alternatively, the prosecution may argue that Kyle was a provoker with intent when he purportedly pointed his rifle at Joshua Ziminski, seeking to provoke a violent response against which he would then have an excuse to use deadly force.  Again, this pointing of the rifle did trigger a violent response from Rosenbaum.  Rittenhouse then led the provoked Rosenbaum across the parking lot, where Kyle ultimately acted on his intent to use Rosenbaum’s provoked attack as an excuse to use deadly force on Rosenbaum.

As a provoker with intent, the State will conclude, the defendant is not privileged to justify his use of deadly force on Rosenbaum as justified self-defense, and no withdrawal argument can salvage self-defense for a provoker with intent. (One difficulty for the State arguing provocation with intent is that they have not charged Kyle with intentionally killing Rosenbaum, but only with recklessly killing him. Rationally, an argument of provocation with intent only makes sense if the subsequent killing was intentional–but this is not an especially rational prosecution.)

Then the State will use the killing of Rosenbaum as a purported act of provocation with respect to the attacks upon Kyle by “jump kick man,” Huber, and Grosskreutz, attempting to strip him of the legal defense of self-defense for those uses of force, as well.

The defense argued sensibly that the evidence in support of the State’s narrative of provocation—the “unicorn” drone video left by the evidence fairy on the State’s doorstep last Friday, and the “enhanced” photos produced for the first time yesterday—were too flimsy a basis to support an argument of provocation.  They pointed out the poor quality of the video and images and noted that for Kyle to be raising his rifle as the State claimed he would have had to suddenly decide, for the first time that night, to handle the rifle as if he were left-handed.

Judge Schroeder essentially informed the State that he didn’t think very much of their provocation evidence, noting how blurry and indecipherable the video and photos were for purposes of determining whether Kyle had pointed his rifle at Ziminski as the State claimed.

He even took the opportunity to review the State’s video on a giant 4k television screen in the courtroom today and walked away without appearing to have seen much of what the State claimed.

Again, however, this is a judge who values the role of the jury, and who is predisposed to give more instructions rather than fewer, and ultimately he decided he would instruct the jury in the provocation doctrine, and thus saving the State from complete argumentative stasis.

It will be the job of the defense, now, to argue against the State’s expected narrative of provocation to the jury during their own closing argument Monday morning.

Monday is going to be a high-stakes day, for certain, as closing arguments always are.  This is where the win or loss will ultimately be realized.

Good News for Defense: Judge Adopts Gun Charge Instruction They Drafted

The biggest jury instruction win for the defense was on the misdemeanor gun possession charge, Count 6 in the criminal complaint.  The standard jury instruction for this charge would almost certainly have meant an automatic conviction for Kyle, for reasons I explain at length here:  The Injustice of the Gun Charge Against Kyle Rittenhouse

Instead of that standard jury instruction, however, the judge agreed to accept a jury instruction drafted by the defense that includes as an option the exception that relieves Kyle of criminal liability for that gun possession.

It would have been best, I think, for the judge to have dismissed the gun charge in its entirely, but this is a judge who values the role of the jury, and who is predisposed to give more instructions rather than fewer—but at least with respect to the gun charge the jury will receive an instruction that, if rationally applied to the facts, should result on an acquittal on Count 6.

The Criminal Charges and the Jury Instructions Approved for Them

The criminal complaint against Kyle has six counts.  Five of these are use-of-force felony counts, and one is the misdemeanor gun possession count.  Today the parties argued in court over the specific jury instructions to be read to the jury for each of those counts.

The parties also argued over where the jury would be permitted to consider lesser included offenses for a particular count in the complaint. (If you’re unfamiliar with lesser included offenses, I discuss that concept below).

Ultimately the Judge decided upon what final instructions the jury will be read on Monday morning, just before closing arguments, after which the jury will begin to deliberate, applying those jury instructions to the facts of the case as they believe those facts to have been proven or disproven.

It is worth noting that the jury can only convict on charges for which they receive a jury instruction, so as you might imagine the defense was arguing against many of the instructions the State was asking for.  Overall the defense won a few of these arguments and lost a few.

As already noted above, the big win for the defense was the acceptance of their version of the gun possession jury instruction—that should lead a rational jury to acquit on the gun charge—and the big win for the State was the judge agreeing to instruct the jury on the doctrine of provocation predicated on the State’s “unicorn” drone video and “enhanced” photos.

Here I’ll simply list the Counts of the criminal complaint and provide the jury instructions approved for each immediately below each count.

Count 1: First Degree Reckless Homicide (Joseph Rosenbaum)

1020 First Degree Reckless Homicide

Count 2: First-Degree Recklessly Endangering Safety (Richard McGinnis) 

1345 First degree reckless endangerment

1347 Second-degree reckless endangerment

Count 3: First Degree Intentional Homicide (Anthony Huber)

1010 First Degree Intentional Homicide

1016 First Degree Intentional Homicide: Self-Defense

Count 4: Attempt First Degree Intentional Homicide (Gaige Grosskreutz)

1070 Attempted First Degree Intentional Homicide

1072 Attempted First Degree Intentional Homicide: Self-Defense

1020 First Degree Reckless Homicide

Count 5: First Degree Recklessly Endangering Safety (“Jump Kick Man”)

1345 First degree reckless endangerment

1347 Second degree reckless endangerment

Count 6:  Possession of a Dangerous Weapon by a Person Under 18

WCJI 2176 Possession of a Dangerous Weapon by a Child is the standard instruction for this offense—but if applied on the facts of this case, it would certainly result in an unjust conviction, for reasons I discuss in detail here:   The Injustice of the Gun Charge Against Kyle Rittenhouse

Fortunately, this is not the instruction the jury will be given for Count 6. Instead, the jury will be given a customized jury instruction drafted by the defense that presumably accounts for Kyle being exempt from the gun possession statute being applied against him. If properly drafted and applied by a rational jury, this customized gun possession instruction should lead to an acquittal on this charge.

Self-Defense & Provocation Instructions

805 Privilege: Self-Defense: Force Intended or Likely to Cause Death or Great Bodily Harm

810 Privilege: Self-Defense: Retreat

815 Privilege: Self-Defense: Not Available to One Who Provokes an Attack: Regaining the Privilege

Legal Concepts Need to Understand the Jury Instructions

Now I’d like to explain some legal concepts that may make it easier to understand how those jury instructions are intended to be applied.


Intent is a mental state in which the person intends a particular outcome. Further, we are all considered to have intended the reasonably foreseeable consequences of our actions.  Of course, none of us can read minds, so intent is invariably inferred from a person’s words or conduct.  Normally, for example, if you point a gun known to be loaded at someone and pull the trigger discharging the weapon at them, it will be inferred that you intended that person deadly injury.

In this case, Rittenhouse is charged with the intentional homicide Anthony Huber (Count 3) and the attempted intentional homicide of Gaige Grosskreutz  (Count 4).


Several of the criminal charges, in this case, are based on recklessness.  Recklessness can be thought of as an aggravated form of simple negligence.  Where negligence only creates civil liability, however, recklessness creates criminal liability.

In the case of negligence, we all have a basic legal duty to not cause unjustified harm to others, and we are all presumed to know this.

To illustrate, if you are driving down the road, and glance down for a moment to change radio stations, and while doing this your car moves onto the shoulder and takes out somebody’s mailbox, your conduct was negligent and you are liable to pay for the damage caused.

Recklessness differs from negligence in both the degree of harm caused (or threatened) and the mental state of the person causing (or threatening) the harm.  Where negligence arises in the context of almost any unjustified damage, recklessness generally involves a danger to human life.  Also, where a negligent person is merely being careless or thoughtless, the reckless person is actually aware of the risk being created by their conduct and chooses to ignore that risk.

To illustrate, if you drink to the point of intoxication, decide to drive your car through town, and run over a group of nuns using a pedestrian crosswalk,  your conduct is reckless.  Everyone knows that driving drunk creates an unjustified risk of death or serious injury to others, and so by driving you intentionally ignore that risk.

Wisconsin law has two different degrees of recklessness, first degree recklessness and second degree recklessness.

Second degree recklessness is essentially what I’ve just described—the creation of an unjustified risk of death, and the deliberate disregarding of that risk.

First degree recklessness can be thought of as an aggravated form of second degree recklessness.  Whereas second degree recklessness requires the creation of an unjustified risk of death and the deliberate disregarding of that risk, first degree recklessness also requires that you acted with an utter disregard for human life.

Utter disregard might best be explained with an illustrative example.  Imagine you are in the woods and have brought a rifle to do some target practice.  Your target consists of a soup can, which you hang from a tree branch using a string.  You begin shooting at the can.  Naturally, both the bullets that strike the can and those that miss continue moving with considerable energy past your target.

Unfortunately, a short distance past your target, hidden by the thin stand of trees behind your target, is a school, and one of your bullets strikes and kills a student.

Your killing of that student is certainly not an intentional homicide—a murder—because you never had any particular intent towards that student, and indeed never knew the student existed.

The killing, however, is likely criminally reckless.  You know that firing bullets at a target with an inadequate backstop means the rounds will continue downrange with considerable energy until they hit something with sufficient resistance to stop them.  If that something is a person, they are likely to die.  Guns are inherently dangerous instruments, and it is your responsibility to use them in a manner that does not unjustifiably endanger others. The enjoyment of recreational target shooting cannot justify a human death.

In short, by shooting at the can on a string without an adequate backstop you know or should know that you are creating unjustified risk of death, and you intentionally disregarded that risk—the very definition of recklessness.

Utter disregard for human life occurs when it is not merely reasonably possible that your recklessness may cause a human death, but highly likely.

Imagine that you’re shooting at your tin can in the woods again, but this time you know there is a school on the other side of the thin stand of trees.  Further, you can hear children in the playground between you and the school building, and even get glimpses of them through the trees.  Despite this, you shoot at your can, anyway., with the same result that one of your bullets strikes and kills a student.

Now you’re not merely knowingly creating a risk of death and intentionally ignoring that risk, you simply have an utter disregard for the people you know are being placed in danger of dying by your actions.

In this case, the charges against Rittenhouse include the reckless homicide of Joseph Rosenbaum (Count 1), the reckless endangering of safety of Richard McGinnis (Count 2), and the reckless endangering of safety of “jump kick man” (Count 5).   All of those counts are premised on first-degree recklessness, arguing that Rittenhouse was not merely reckless but showed an utter disregard for human life.


Self-Defense is a legal justification or privilege that relieves you of criminal liability for having used force upon another in specific circumstances.  At Law of Self Defense we define those specific circumstances using what we refer to as the five elements of a claim of self-defense.  These are Innocence, Imminence, Proportionality, Avoidance, and Reasonableness.  I’ll explain these briefly here. (Get your “Five Elements of Self-Defense Infographic” here.)

Innocence requires that the person claiming self-defense not have been the initial physical aggressor in the confrontation.

Imminence requires that the threat you were defending against was either in progress or immediately about to happen.

Proportionality requires that your defensive force be proportional to the force threatened against you, and particularly that deadly defensive force can be used only to stop a deadly force threat.

Avoidance asks whether you had a legal duty to retreat before using deadly force in self-defense—only 11 states impose such a generalized legal duty to retreat in cases of otherwise lawful self-defense, and Wisconsin is not one of those, so we can disregard the element of Avoidance for purposes of the Rittenhouse trial (except in the context of provocation, which I’ll come back to in a moment).

Reasonableness requires that the defender’s perceptions, decisions, and actions were both subjectively genuine believed by the defender, and that this belief was also objectively reasonable—that a reasonable and prudent person in the same circumstances would have shared that subjective belief.

These elements are cumulative, meaning that the claim of self-defense is valid only if all the required elements are present.  It is the burden of the prosecution to disprove self-defense beyond a reasonable doubt, but he need not disprove beyond a reasonable doubt self-defense in its entirety, he need merely disprove beyond a reasonable doubt any single element of self-defense.

Accordingly, each of the required elements of a self-defense claim can be thought of as a target of attack for the prosecutor.  If he can disprove any single required element—in Wisconsin the four elements of Innocence, Imminence, Proportionality, or Reasonableness—he will have defeated the legal defense of self-defense.

If the prosecutor cannot disprove any one of these elements beyond a reasonable doubt, however, then the underlying use of force is deemed to have been justified, and the defendant will have zero criminal liability for his use of force.  That use of force is simply not a crime.  The jury will be instructed that under those circumstances they must acquit the defendant of the use-of-force criminal charge in question.

Because an undefeated claim of self-defense results in an acquittal and zero legal liability for the defendant, self-defense is said to be a perfect defense.

Remarkably, after eight days of trial testimony the prosecution has introduced little if any substantive evidence that attacks any of the four required elements of self-defense under Wisconsin law, and certainly not anything like the evidence required to disprove any one of these elements beyond a reasonable doubt.

The self-defense jury instruction for Wisconsin is:  805 Privilege: Self-Defense: Force Intended or Likely to Cause Death or Great Bodily Harm

This instruction will be read to the jury.

Imperfect Self-Defense

There is a variant of self-defense recognized by many states, among which is Wisconsin.  Whereas self-defense is a perfect defense that allows for an acquittal and zero legal liability, imperfect self-defense does not allow for an acquittal.  Instead, imperfect self defense can only mitigate what would otherwise have qualified as a first degree intentional murder to some lesser killing charge—second degree intentional murder, manslaughter, first-degree reckless murder, and so forth.

Imperfect self-defense can be thought of as a claim of self-defense that’s almost complete, but not quite—just short of perfect.

Wisconsin law recognizes several flavors of imperfect self-defense that can mitigate a first degree intentional homicide to a lesser killing charge.

For example, imagine a defendant who used deadly force in self-defense. Per the element of Reasonableness, perfect self-defense requires the defendant had both a genuine subjective belief in the need to use deadly force in self-defense, and that this subjective belief was objectively reasonable.

Where the defendant has that genuine subjective belief, but that belief is objectively unreasonable, however, he has failed the element of Reasonableness, and therefore does not qualify for perfect self-defense.

If that lack of objective reasonableness is the only defect in his otherwise valid claim of self-defense, however, he can argue that what would otherwise have been deemed a first degree intentional homicide is mitigated to a second degree intentional homicide.

In this case, Rittenhouse is charged with the first degree intentional homicide of Anthony Huber.  If the jury were to find that Rittenhouse had an otherwise valid self-defense justification for his shooting of Huber, except that his use of deadly defensive force was objectively unreasonable, they could acquit him of the charge of first degree intentional homicide and instead find him guilty of second degree intentional homicide.

The jury instruction that addresses this concept of imperfect self-defense under Wisconsin law is:  1016 First Degree Intentional Homicide: Self-Defense

This instruction will be read to the jury.


I mentioned earlier that there are four core elements of self-defense under Wisconsin law that are possible targets of attack by the prosecution:  Innocence, Imminence, Proportionality, and Reasonableness. I also mentioned that the fifth element of self-defense, Avoidance, does not generally apply in Wisconsin, in that there is no generalized legal duty to retreat before you can act in otherwise lawful self-defense.

There is, however, what might be thought of as a “back door” avenue of attack on self-defense, and that target becomes available where the defendant can be said to have provoked the attack against which he then defended himself.  Generally, I treat provocation as a facet of the element of Innocence, but Wisconsin law breaks it out as if it were a separate element, so that’s how I’ll treat it here.

I noted earlier that over eight days of trial testimony the State had offered little or no evidence attacking any of the four core elements of Rittenhouse’s claim of self-defense, and certainly not evidence beyond a reasonable doubt. They did not do so for the perfectly good reason that they have no such evidence.

Instead, the State is putting all its chips on attacking Kyle’s claim of self-defense through the legal doctrine of provocation.  If they can prove provocation beyond a reasonable doubt, Kyle becomes effectively ineligible to claim self-defense.

Specifically, the State is arguing that as Kyle approached the four cars in which Rosenbaum was concealed at the corner of the 63rd Street Car Source parking lot, Kyle raised his gun and pointed it at Joshua Ziminski—this is the why the State fought so hard to get the “unicorn” drone video and “enhanced” images into evidence, as purported evidence of this conduct by Kyle.

This pointing of the rifle, the State claims, provoked Rosenbaum into a use of force in defense of Zimkinski, and as a result of that act of provocation Kyle should be unable to justify his use of force upon Rosenbaum’s provoked attack as lawful self-defense.

Importantly, there are two types of provocation under Wisconsin law, each with different conditions:  simple provocation, and provocation with intent.

Simple Provocation

Simple provocation is engaging in unlawful conduct that would be reasonably likely to provoke a violent response.  If that occurs, the person who provoked the violent response does not have a privilege of justifying their use of force against that response as self-defense, unless they meet additional conditions not usually required for self-defense.

Specifically, the person who engaged in simple provocation has effectively acquired a legal duty to retreat, that element of Avoidance, that would not normally be a legal duty under Wisconsin law in the case of an otherwise lawful act of self-defense.  Before the simple provoker can justify their defense against the provoked violence as legally justified, they must withdraw from the confrontation and effectively communicate their withdrawal to the other party.

Provocation with Intent

The second form of provocation is provocation with intent. This occurs when the defendant not only provoked a violent response but did so with the deliberate intent of then having an excuse to use deadly force against the person provoked.  Importantly, the provoker with intent cannot regain self-defense by withdrawal and communication—on the other hand, the State must prove that malicious intent beyond a reasonable doubt.

The jury instruction that addresses both simple provocation and  provocation with intent under Wisconsin law is:

WCJI 815 Privilege: Self-Defense: Not Available to One Who Provokes an Attack: Regaining the Privilege

This jury instruction will be read to the jury.

Lesser Included Offenses

Many criminal offenses come in several degrees, as we’ve already seen with respect to recklessness coming in both a “standard” second-degree form and an “aggravated” first degree form where there is an utter disregard for human life.  Between the two forms all the criminal elements are identical, except for the addition of utter disregard to first-degree recklessness.

If a defendant is charged with first degree recklessness, and the jury finds that all the elements of that crime have been proven beyond a reasonable doubt except for utter disregard for human life—well without utter disregard the defendant cannot be found guilty of first degree recklessness.  He still, however, meets all the conditions for being found guilty of second-degree recklessness.

In such a case the crime of second degree recklessness is said to be a lesser included offense of first degree recklessness.

In this case, Rittenhouse is charged with several charges based on recklessness, all in the first degree claiming utter disregard for human life, including the shooting death of Rosenbaum, endangerment of McGinnis, and the endangerment of “jump kick man.”

To all these charges of recklessness Kyle has raised the legal defense of self-defense. For each charge, if the jury finds the state has failed to disprove any one element of self-defense beyond a reasonable doubt, the jury will be instructed to acquit Rittenhouse of that charge.

In other words, recklessness requires the creation of an unjustified risk of death, but if the death was the result of lawful self-defense the risk created was justified and therefore not a crime.

Of course, if self-defense is found to have been disproven beyond a reasonable doubt, then Rittenhouse will be found guilty of the charge.

But guilty to what degree?  Both first and second degree recklessness require that Rittenhouse created an unjustified risk of death and ignored that risk.  But first degree also requires utter disregard for human life.

If the jury is considering a charge of first degree reckless, and finds it has been proven with the exception of the element of utter disregard, they can acquit Rittenhouse of the first degree charge and instead find him guilty of the lesser included offense of second degree recklessness.

OK, folks, that’s all I have for you on this topic.

Until next time:


You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!


Attorney Andrew F. Branca
Law of Self Defense LLC

Law of Self Defense Platinum Protection Program

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35 thoughts on “Rittenhouse Trial Day 9: Prosecution Big Win On “Provocation” Jury Instruction Saves Chance At Conviction”

  1. It didn’t sound to me like the prosecution was requesting a provacation with intent provacation instruction. I believe the prosecution even conceded today that the state did not believe that Rittenhouse had any intent to kill Rosenbaum. The prosecution certainly conceded they couldn’t prove intent beyond a reasonabe doubt by not charging him with intentional homicide. The 815 provacation instruction appears to be Wisconsin’s combination initial aggressor instruction and provacation with intent instruction, with only the appropriate paragraphs being used when they are supported by the evidence. I didn’t see any evidence of provacation with intent introduced or argued. I don’t really know which form of the instruction the prosecution offered, but I didn’t see any discussion of provacation with intent evidence.

    I believe the reason the defensse was fighting the provacation instruction so hard was the duty to retreat of the aggressor that comes with it.

      1. I was just wondering if I had heard it right. Getting a little old.

        Also not quite sure what the judge ruled on the gun charge. Sounded like he was going to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that Rittenhouse had possession of a short barrelled shotgun or rifle even if there was no evidence in the record that he had possession of a short barrelled shotgun or rifle.

  2. Mr Branca,
    After this is over, however it works out, I would like to see you take on the question of how this prosecution in this case has changed, or should change, the general understanding of our framework understanding of use of force law.

  3. Very curious about something I heard today listening to other lawyers talk about this case. They said the reason provocation is in play now is solely because of Rittenhouse’s testimony. (Yes, the judge allowed it through, but he wouldn’t have without Rittenhouse on the stand.) I don’t know if you could say that the prosecution’s case was DOA before he took the stand. As long as the defense was sharp, I’d say they were in the driver’s seat. After Rittenhouse admitted to pointing his gun to one guy – aha, now we have new video SHOWIING!!!1!! him pointing his gun at Ziminski or Rosenbaum or whatever. Now the chances of conviction have increased.

    Before that testimony, provocation was completely off the table? I’ve watched most the trial, I’m also not a lawyer and I don’t know if there was another time that this pointing BS could have been brought up by the state. Was Rittenhouse’s testimony the fundamental reason that provocation is in play now?

    1. Iha think it is because he denied pointing his rifle at the guy. Didn’t justify it, but denied it. So the prosecution is claiming the video shows it and he didn’t justify it. That is what all the stink was about the video.

      I don’t see provacation as a big issue because he retreated as far as he safely could. You have to turn and fight before you are tackeled from the rear.

      1. I wish the jury pool was made of LOSD members. The defense’s case is based purely on emotion and we know how much of that total jury pool already had bad vibes for Rittenhouse at voir dire. Provocation is a huge win for them because it opens the door to make everything that night “illegal” no matter what, right from the start.

        Ladies and gentlemen of the jury, we have someone here who doesn’t live in this state, came to this town and brought with him a giant assault rifle that he couldn’t even buy himself, that big bad assault rifle that uses the same FMJ rounds as the military uses in war (listening to this Binger jerk talk about guns is painful), he had it on a sling so he could always have it, so people could see that he had it, he was armed the entire night in a restless crowd of people, some of whom started fires but did nothing that would deserve a gun pointed at them and yet that is exactly what he did that night, he carried his assault rifle around those crowds even when the crowds asked him to stay on the property and not the streets, he went into the streets anyway, he pointed that assault rifle at a man on a dumpster and said it was a joke, he is an admitted liar and irresponsible gun user, and he pointed it again after chasing Rosenbaum, someone Rittenhouse admitted was unarmed, then after running through a parking lot he turned and pointed that assault rifle again and shot an unarmed Rosembaum four times, then he kept running and pointing that assault rifle and shot at three more people, killing another, etc. Oh by the way, the judge is going to give you instructions on provocation. Etc.

        Binger is as smarmy and disgusting as they come and he will milk this provocation crap for every second of that 2.5 hours.

        1. I think there are 3 former law enforcement officers on the jury. Unfortunately, one of them was just a 911 dispatcher, wouldn’t have any use of force or weapons training.

  4. Watching the Arbery trial today. Travis’s lawyer seems pretty sharp. Actually got a witness for the prosecution to provide a lot of evidence for the defense that they would have had to bring in a use of force expert to testify to. Greg’s lawyer better that I thought he was. I’m still not sure that the other lawyer is any smarter than he looks, but looks can be deceiving.

    1. Attorney Andrew Branca

      I might hop back onto Arbery if it’s still going on when this one ends. It’s awkward, though I really don’t like doing “analysis” on cases I haven’t actually watched.

  5. Right now Rittenhouse’s problem is something that I thought the use of force expert was going to address. I don’t think he did, least I didn’t catch it. It’s tactics and I think the judge was going to allow that. The use of force expert should have explained to the jury how a person fleeing an aggressor who is overtaking him has to turn and fight before the aggressor tackles him from behind, stabs him in the back, or knocks him in the head. And certainly you need to return fire when the aggressors are shooting at you. Now all the defense attorney can do is argue that Rittenhouse had regained his innocence by retreating and that he only turned and used force when the threat was so imminent that it was necessary to turn and protect himself from being incapicated.

      1. Timeing is what I was talking about. How fast did the video show that Rosenbaum was overtaking Rittenhouse. How many more steps could Rittenhouse have taken before Rosenbaum laid hands on him. It is my contention that Rosenbaum’s imminent use of force was so close in time and space (so imminent) as to make it necessary for Rittenhouse to turn and defend himself when he did.

  6. I don’t understand how there were multiple eye witnesses and video and none of it ever caught on camera Rittenhouse pointing his rifle at the ziminckies prior to rosenbaum chasing Kyle Rittenhouse. Not to mention Rosenbaum was hiding behind those cars and started running towards kyle before the Drone Photograph was taken of kyle allegedly pointing his rifle at anyone.

  7. My greatest concern is not that there is a small avenue on provocation, but in how a jury translates who broad they may consider “provocation” or “recklessness”. Will someone explain that, for example, provocation wouldn’t include a sarcastic remark or the momentary pointing of a gun somewhere in a general direction as sufficient provocation to generate a physical attack on Kyle? Might wearing a slung gun with the barrel pointed upward (which normally points to no one) a provocation because it might have crossed over a guy standing on top of a vehicle. Really?

    What is the measure of a provocation that justifies an physical attack on Rittenhouse, especially as he turns away after the complaint? And how does it help the prosecution when Rosenbaum, who is not under any threat, decides to chase down and attack Rittenhouse?

    I am very uncomfortable with the avenues left open by the prosecution… putting Kyle on the stand ended up showing him as having uncertain judgement on what he was doing…and the provocation instructions leave open as totally subjective on the reasonableness of being provoked.

    I hope the closing statement puts some rational boundaries on this.


    “Predatory” prosecution doesn’t sound like justice at all. Given all that has been witnessed in this case, predatory prosecution seems to be the driving force.
    If Rittenhouse is found guilty, it seems there would be substance for an appeal which the defense seems to have established.

  9. Did no one else notice what the state pointed out yesterday? https://youtu.be/4JeuPGgIZjw?t=5172 The DEFENSE submitted an exhibit of an annotated video (that isn’t even from the new, much clearer drone footage) that has Kyle circled and says “Could be Rittenhouse pointing gun (probably at Ziminskis)” “Difficult to say for sure given the background clutter and person obscuring line of sight.” There could be a perfectly valid reason for Kyle to be pointing his rifle at Ziminski considering he had a gun in his hand. But instead of arguing this the defense has ignored/denied it despite it being IN THEIR OWN EXHIBIT. And now the state is going to tailor their entire case around it.

    1. Do remember that this is the video supplied by the prosecution, from unknown origins. That the state has already maintained this is Rittenh pointing a gun at Ziminski, the annotation isn’t anything more than a notation of a question…and, by the way, how do we know if the prosecution itself in annotate the video they turned over to the defense?

  10. Richardson spent 20 hours resizing and printing that evidence, something I would say anyone reading this could do in less than an hour. How many manipulations did he have to do in order to get the final photo? And how many different prints did he do, in each step, did he do any further manipulations then print another and so on until he arrived at the one they are submitting. I would want those 20 hours accounted for. I don’t believe he said the number of pixels that were added to the photo vs how many were original. Very little was said about the focal length of the drone and distortions and on and on.
    Unfortunately, because of the late arrival of this evidence, the defense most likely didn’t have time to think about any of this nor had the time to get an expert in who could counter Richardson. Dr. Black gave a little info on it but I think it was said he is an expert in photo analysis.
    All of this is so far beyond the lawyers, judge and even the states expert witness, that perhaps it will be a reason for an appeal.

  11. What is the measure of a provocation that justifies an physical attack on Rittenhouse, especially as he turns away after the complaint?

    This answers that 2 part question when the question is taken literally. 1. A use or imminent use of unlawful physical force by Rittenhouse upon another is the only thing that “justifies” a physical attack on Rittenhouse. 2. Nothing justifies a use of physical force on Rittenhouse after Rittenhouse quits using or threatening the imminent use of physical force upon another and communicates his withdrawl by turning away.

    I think your real intent in the question was to ask what is the measure of provacation by Rittenhouse that would bar Rittenhouse from using physical force to defend himself from a use of unlawful force that he provolked. This is a question that a law professor could write a book about. Andrew wrote a whole chapter in his book The Law of Self Defense, it is chapter 2 entitled “innocence.” The short answer is the act sufficient to bar you from defending yourself from the unlawful use of physical force that you provoke by your act has to be an intentional act that you know, or should know, will induce or give rise to a heat of blood sufficient to overcome the ability of a reasonable person to reflect on and control his or her actions in response to your act.

    An unintentional act, no matter how provocative, will not bar you from using force in self defense. And an intentional act that would NOT be sufficient to induce or give rise to a heat of passion sufficient to overcome the ability of a reasonable person to reflect on and control his or her actions will not bar you from using force in self defense.

    Provcation can be a conditional bar, or an absolute bar, to justifying the use of force in defending yourself from the unlawful use of force that you provoked. The bar is conditional when you intended to do the act, but had no intent to provoke a use of unlawful physical force against yourself (you can regain innocence by retreat), and the bar is absolute when you intended to do the act and intended the act to provoke a use of unlawful force against yourself (you willingly entered into unlawful mutual unlawful combat).

    Worth noting here is that there are two different types of provacation in self defense law. The first type of provacation is the type of provacation that is sufficient to justify a use of force in self defense and this type of provacation is also sufficient to bar a use of force in self defense. The second type of provacaton is the type of provacation that is not sufficient to justify a use of force in self defense, but is sufficient to bar you from being justified in defending yourself from the unlawful use of force that you provoked. Words or gestures alone, no matter how provacative, will not justify a use of force in self defense, but words or gestures alone will bar a use of force in self defense unless you retreat to the wall before defending yourself.

    Sir William Blackstone covers provacation in Book 4, Chapter 14 Homicide, of his Commentaries on the Laws of England (1765-1769). This book is the Holy Grail of the common law in America and was actually the foundation for the Declaration of Independence, The United States Constitution, and the Bill of Rights. If George Washington was the Father of our Country, Sir William Blackstone was the Grandfater of our Country. Be glad to try to post a link to an online copy of it if you want.

    1. Thank you much for addressing this issue. You are correct, my real intent in the question what is the degree or kind of provocation by Rittenhouse that would bar him from using a self defense claim. Your short answer is “the act sufficient to bar you from defending yourself from the unlawful use of physical force that you provoke by your act has to be an intentional act that you know, or should know, will induce or give rise to a heat of blood sufficient to overcome the ability of a reasonable person to reflect on and control his or her actions in response to your act.”

      I note that you also said “An unintentional act, no matter how provocative, will not bar you from using force in self defense.” So if applied to the accusation that he pointed a gun at someone, I assume that the prosecution must prove, beyond a reasonable doubt, it must have been intentional. If, for example, it just happened to be slung such that it pointed towards Zeminsy (sp?) on the car, he does not lose his right of self defense.

      And even if proven to have happened, and to have been intentional, the second hurdle for the prosecution is to prove it was “sufficient to induce or give rise to a heat of passion sufficient to overcome the ability of a reasonable person to reflect on and control his or her actions”. Meaning, I suppose, would that induce a reasonable onlooker to give into the heat of passion and overcome his ability to reflect on and control his or her actions. Again, it seems obvious that a reasonable onlooker on the alleged event would have the ability to reflect on and control his actions…obviously Rosenbaum is far from being reasonable, reflective, or in control. (Too bad they didn’t get his mental history in the record…an open doored opportunity lost earlier in the trial).

      Seems to me this is a no brainer…the prosecution hasn’t a shred of proof of intent to provoke an attack. They don’t even have proof of intent to point a gun at an innocent. And as Rittenhouse merely denied the accusation and turned away he effectively communicated his desire to avoid trouble and leave.

      I’m not sure I get the words and gestures part, but you’ve clarified much to me.

      Thanks for the offer of the link. Sure go ahead and post.

      Thanks again…

      1. “I’m not sure I get the words and gestures part, but you’ve clarified much to me.”

        Words or gestures alone, no matter how offensive, ARE NOT sufficient provacation to justify a use of force in self defense BECAUSE there is no use or imminent use of unlawful force for you to defend yourself against.

        Words and gestures alone ARE sufficient provacaton to bar you from claiming self defense if those words or gestures are sufficient to provoke a reasonable man into attacking you with unlawful force.

    2. Bye the way, given how nuanced these concepts are, how in the world can the defense educate the jury sufficiently so they don’t go off the rails? I suppose that has to occur during closing, and on the jury instructions.

      We can only hope the emotional and irrelevant personality bashing of Rittenhouse to make him appear “evil” doesn’t combine with an impulse to find him guilty on provocation its crazy.

  12. Some questions about the consumer drone video:

    Q1: Has anyone testified as to the source of the (consumer type) drone video?

    Q2: If someone has not testified to the source of the video, is there a question about the chain of custody of the evidence?

    Q3: In the video, apparently Ziminski(s) aren’t even visible in the video at the time KR allegedly raises his rifle. The prosecution has repeatedly stated that the rifle is pointed at Ziminski(s), when pointed out to him, he says something to the effect of well they are being blocked by a pole (?, or other object), it’s on the FBI video. Yet there has been no time reference comparison to show where KR, Zimenski, JR are at this critical time. I wonder if the defense will question this, waiting until closing arguments might be a smart time to point this out.

    Q4: In the copies of the modified blurry still picture from a consumer type drone at least a hundred feet away extracted from a video taken at night, I can’t see the gun (for sure), much less where it is pointed. And watching video on the 4K TV in the courtroom through the courtroom camera on my (non 4K) TV, I still can’t see any better. Have you (AB) seen the (so-called) “raw”* video to see if it really does appear that KR raised his rifle?

    *All consumer drone video cameras use some form of video modification while writing to memory.

    1. You’ve raised some interesting concerns that I share.

      Indeed, does anyone know where the “Friday drop” came from and who provided it? If not, why should there be an assumption that the original video is pristine or un doctored, by what measure? If someone can’t testify as to its providence, why was it even allowed to be admitted? (I.e. ‘a plant”).

      And on a technical note: It is my understanding that there are several different choices of algorithms and techniques for enhancement to video. All add pixels, but use different methods. Suppose you chose to run it by three methods that show nothing untoward, and a fourth that shows something else. So you cherry pick that something as “valid”?

      Problem here is that it is cherry picking a result that you like, to make the cherry pie you want. There is no proof that the “something” is any more or less reflective of reality, no more or less proof than the others?

  13. In arguing jury instruction yesterday, Kraus definitely said “provocation only” not “intentional”.
    What would/could happen during closing statements if either side reaches beyond whats been agreed to. We all saw how many times the prosecution disregarded the judges rulings.
    I would assume the defense could address the fact that no charge of intent has been filed in their closing statements, but would the defense be able to object during closing statements?
    After all the discussion on which rules to allow and not, surely the defense agreed on this provocation issue, based on the prosecutions statement they were not seeking “intent”.

  14. I watched a very lengthy videotaped pretrial analysis by Branca of Rittenhouse’s self-defense claim. It was excellent but tedious because WI law of self-defense is itself turgid. I am a retired lawyer with trial experience in administrative law and civil trial law – I have no jury trial experience and no criminal law experience, also no Wisconsin law experience, but have been a Bar Disciplinary prosecutor with four years of experience and a very heavy caseload in that arena (bench trials only) and significant appellate experience before the Florida Supreme Court (Florida Bar convictions, when appealed, are directly reviewed by the Florida Supreme Court). I also handled four years of Paramedic disciplinary prosecutions – nearly 100% of which were theft of Class III narcotics from ambulances and Fire Department “rescue” vehicles, typically with the volume replaced by saline solution by the offender. I never lost one of those cases.
    I think, after watching the video courtroom events as available each day, that the judge, while performing in excellent fashion in many respects, has failed to do his job in three ways:
    It is very clear to me that the prosecution utterly failed to prove ANY of the charged offenses and the judge should have entered a directed verdict with prejudice when the State rested its case. The case was over at that point and no defense was necessary. That failure to act denied justice to Kyle Rittenhouse.
    Second, because the judge did not enter a directed verdict, the judge created an opportunity for the State to amend its charges (a second bite at the apple, or “tacking”) with a list of lesser included offenses, even after its shabby, cartoonish performance. That should NEVER have happened.
    Third, the judge then tossed the hot potato into the laps of the jury – the people in the room with the LEAST ability and experience to deal with those now-multiple issues and definitions. See, e.g. the Navy Chief Gallagher case, where the jury found guilt on a lesser included charge because the Navy JAG lawyers had gone to SO MUCH effort to bring the case to trial. I simply do not have that much faith in juries to do what is the judge’s job for him.
    Put more simply, the judge didn’t want to take the heat for a dismissal, and gave the jury a baby to split, because that’s what I have repeatedly seen judges do for the past 30 years – make both parties equally unhappy. IMPO, that is not the actual intended function of judges, notwithstanding that it is commonplace.

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