Rittenhouse Trial: Kyle Takes the Stand; Prosecutor Incurs Wrath of Judge

Defense says if ADA Binger misconduct continues, will ask for mistrial with prejudice

Welcome to today’s Law of Self Defense ongoing coverage of the Kyle Rittenhouse trial. I am, of course, Attorney Andrew Branca, for Law of Self Defense.

Today the trial heard testimony from the defendant himself, Kyle Rittenhouse—a high-stakes bet by the defense, and one that always has risk of snatching defeat from the jaws of victory.

Fortunately for the defense, however, it appears that Assistant District Attorney Binger is leveraging this remarkable opportunity for the state to collapse not only the State’s own narrative of guilt in this trial, but to collapse the entire trial itself.

Indeed, so grievous has been Binger’s over-stepping on fundamental Constitutional rights of defendants, and curb-stomping on evidentiary rulings previously made by Judge Schroeder, that not only is the defense threatening to seek a mistrial with prejudice—meaning Rittenhouse could not be tried again, as would normally be permitted if there was a mistrial—but Judge Schroeder has repeatedly dismissed the jury during Binger’s cross-examination of Kyle to forcefully scold the prosecutor, and sometimes angrily shouting at him.

Throughout it all, Binger remains unable to pry even from the defendant himself any testimony that in any way undermines Kyle Rittenhouse’s core legal defense of self-defense.  As usual, we’re hearing little but innuendo, snark, snide, and table pounding from the State.

Although Binger’s cross-examination could best be characterized as flailing from his first question until the moment a frustrated Judge Schroeder abruptly broke for lunch, there were three major incidents during the prosecutor’s cross of Rittenhouse that particularly frustrated the court.

ADA Binger Talks At Length On Kyle Exercising Right to Silence

The first was by far the most egregious:  ADA Binger began to raise before the jury the fact that Rittenhouse had exercised his Constitutional right to silence prior to taking the witness stand today in court.

For those who may not know, the right to silence is inviolate, and the fact that a defendant has remained silent may not be used against him in any way—including the prohibition that it may not be mentioned AT ALL by the prosecution at any time of the trial, EVER.

If there’s a single most inviolate civil right in American criminal law, this is it—the right of a defendant to remain silent, and not have the exercise of that right be used against them.

To observe an experienced prosecutor breach this fundamental Constitutional right in open court, in the presence of a jury, was professionally shocking to me personally—and the defense and Judge Schroeder acted with the severity you might expect.

Here’s the video of Binger delving in front of the jury into Kyle’s exercise of his right to remain silent, and Judge Schroeder’s reaction:

Binger Begins Introducing CVS Video Evidence Prohibited by Judge

A short time later, Binger asked a lengthy series of questions about Kyle’s understanding that deadly force cannot be used in defense of mere property.  He asked the question in perhaps a dozen different ways, and then revealed that it was all a long build-up into asking Kyle about the CVS video.

The CVS video involves Kyle sitting in a car with someone while they watch an apparent shoplifting or robbery take place at a CVS across the street. Kyle says that he wished had his AR, he’d sound rounds in the criminal’s direction.  He did not have his gun with him, he obviously fired no rounds, he did not engage the criminal in any way—it was the chatter of a 17-year-old boy. All Kyle actually did was call 911 to report the event to police.

The prosecution had sought in pre-trial hearings to have this CVS video admitted as evidence at trial.  The defense objected, it was argued out at length in court, and Judge Shchroeder announced he was not going to admit it, but would leave the door open to further consideration as the trial developed.

This morning, when it was learned that Rittenhouse would testify, the Judge affirmed that he was still not willing to admit the CVS video evidence.

So, when Binger began to reference the CVS video front of the jury, he was revealing evidence the judge had already prohibited after lengthy argument pre-trial, and which the judge affirmed remained prohibited just prior to Rittenhouse beginning to testify today.

Folks, he may as well have just spit in the judge’s face.

The way this is done, if a lawyer feels evidence has opened a door or done something to justify asking a judge to change an evidentiary ruling, you request of the judge an opportunity to make that argument without the jury present.  Then the judge makes the call.

The lawyer does not, himself, get to just pretend that the judge’s prior ruling excluding the evidence simply  no longer matters.

But that’s what ADA Binger did, and this is how it happened:

Defense Threatens to Offer Motion for Mistrial with Prejudice

After this second incident, the defense informed the judge that this was inexcusable conduct from an experienced prosecutor who knows better, that they suspected Binger knew his case was so weak that he didn’t want it to go to a jury, that he was angling for a mistrial, and that if he engaged in misconduct again the defense would offer a motion for a mistrial with prejudice—meaning that if granted, Kyle could never be tried on these charges again.

Binger Begins Providing (Wrong) Testimony on Ammo

Third, Binger began to get into a lengthy and tiresome series of questions with Kyle about the difference between full metal jacket (FMJ) bullets and hollow-point bullets.  The point of all this is beyond me, frankly, but in any case Kyle repeatedly indicated that he didn’t really know all that much about bullets.

But Binger couldn’t let it go. He kept asking, and asking, and asking, and when Kyle kept repeating that he just lacked the knowledge necessary to answer the questions, Binger began to explain to Kyle what the difference in ammo types was.

Folks, this is simply not permitted. The lawyer asks questions, and the witness provides testimony.

The lawyer does not get to provide testimony—which is what Binger was doing.

The defense objected, Judge Schroeder interrupted Binger’s questionin—and Binger responded by interrupting Judge Schroeder.

One does not interrupt a judge in his own courtroom.

Judge Schroeder, with the jury still present, immediately informed Binger that, first, the information about ammo he was spouting in front of the jury was incorrect.


Second, that it was inappropriate for the prosecutor to provide testimony.

At that point Binger interrupted the judge again.

That’s when a clearly frustrated Judge Schroeder abruptly announced the court would recess for lunch, which is where we are as I write this.

Here’s that exchange.

And that’s where we are as I finish this up.

Keep following our live commenting and analysis as the Rittenhouse trial continues after lunch, right here:

LIVE: Rittenhouse Trial Day 7


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


Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.



16 thoughts on “Rittenhouse Trial: Kyle Takes the Stand; Prosecutor Incurs Wrath of Judge”

  1. Wow.

    I am a retired Trooper. I cannot imagine any attorney acting like this is a court room. Holy smokes.

    This trial is a sham. Binger and his cohorts need to be disciplined and, after watching the complete lack of a prosecution case, Mr Rittenhouse should have this dismissed with prejudice. I do not see how in any sense allowing the state to have a go at a retrial for this mess of a case is in the interests of justice.

    1. Binger is an ADA. He works for the District Attorney who, one would expect, is paying attention to Binger’s behavior in court. The DA must like what he sees. Otherwise, he would make changes.

  2. I am sure Mr. Branca will have more to say on today’s proceedings, as crazy as they got. However, I noted a couple of things that sort of bothered me.

    First, the constant badgering of the witness and the seeming sparseness of objections on this and many points.
    Second, the fact that Richards didn’t recross. Why?

    1. “ Second, the fact that Richards didn’t recross.”

      IANAL, but if Richards redirected that would give Binger another chance to recross. Kyle had gone through enough hell, and survived without any errors. Whereas Binger came out looking like some guy who just insulted Mike Tyson to his face. All in all, I think it was a wise move on Richards’ part.

    2. Redirect by Richards would give the prosecution an opportunity for recross. The idea is to get Kyle off the stand as soon as possible, because he has already provided the testimony that the defense wanted him to provide.

  3. I guess the prosecutor believes it’s better to ask for forgiveness than permission. It was pretty obvious he knew this would be a problem but tried to squeeze it in. He also was trying to put words in the mouth of Rittenhouse about bullet behavior just to get Rittenhouse to agree with his exaggeration of bullet behavior and purpose, even after Rittenhouse indicated many times he didn’t have the knowledge to answer the question. Slick move but not with this judge. Lesson here is know your audience (Judge).

  4. I think this guy Binger, in the back of his mind, would like to get a mistrial at this point (without prejudice of course) and get another bite at the apple (with maybe a woke idiot judge instead of the no-nonsense old-school judge he is faced with here). I had this vibe about Binger before, and now I’m really getting that vibe. I hope Rittenhouse comes out of this acquitted. This case is a travesty of justice.

    1. I’m starting to think Binger knows the case is lost and is now pushing for a mistrial WITH prejudice because the lack of an acquittal will always leave a cloud over Rittenhouse.

      1. That may be the strategy; however, convicted, found innocent, or mistrial (with or without prejudice), there will always be a cloud over Rittenhouse … but that’s because of Media malfeasance more than anything.

        Basically, we’re going to have two “movies” here: people who actually paid attention to the trial and the Prosecution’s fundamental absence of evidence, and people who paid attention to the headlines of the Rittenhouse case, or who read articles completely ignoring Rittenhouse. The other day, I saw an article from NPR that said nothing about Rittenhouse’s case, that talked to two people as if they were witnesses to the event, but at best probably just heard gun shots, and yet the article cast this as a loss for the First Amendment if Kyle isn’t convicted, as if there’s a right to arson, destruction of property, looting, hiding, and chasing down people after declaring you were going to murder them if you could get alone with them.

        Heck, just this morning I read an article on “Yahoo” that kindof got the facts right, but did their best to cast their facts as “but the judge is favoring the Defense”, completely ignoring the fact that the Prosecution had deserved being yelled at — although, to be fair to this particular article, they at least had a Defense attorney from Kenosha point out that most judges nowadays are “loosy goosy” (my phrasing) on fundamental Constitutional protections, which make it far more difficult for a Defense attorney to actually provide a defense. That is, the “favoritism” that the article was complaining about is favoritism provided by the Constitution, and Judges nowadays are wrong to ignore it.

  5. As far as ADA Binger’s impromptu lesson on ‘ammo types’ goes, I think he might have been making an argument towards the Reckless Endangerment charges: Since full-metal-jacket has a higher chance of overpenetration, the choice of that ammunition recklessly endangered bystanders downrange such as Richie MacGuiness.

    The ironic thing is that the only type of ammunition you can use for defensive purposes in New Jersey is FMJ (another reason I never want to visit NJ)

    1. It wasn’t to long back that police departments did not allow officers to carry hollow point ammunition. Probably the most common type of ammuniation in America today by far the FMJ round. Most hollow points function the same as FMJ when used on anything but a naked person. They are starting to make a few rounds in the last few years like Hornandy Critical Defemse with FTX bullets which have a filled hollow point that resists plugging and functioning like FMJ when shooting through clothing.

      Gel tests show a .223 soft point and a .223 FMJ have roughly the same amount of penatration in balistic gel.

      1. The judge seems well informed about bullet types and their effects.
        He knew that hollow points don’t explode, and are capable of passing through people.
        He ignored the prosecutor’s statement that FMJ bullets are designed to pass through people.
        (FMJ 5.56 bullets produced most of their injury by fragmentation)
        They are not designed to pass through people.
        Surprising that the judge seems knowledgeable about ammunition types

      2. It’s also interesting to observe that the Prosecution tried to get Kyle to testify to this, rather than call in an ammunition expert when they were making their case on this.

  6. Thank you for a most enlightening presentation of this trial. I do have a question; given the obvious absence of proof in the prosecutions case, why did the defense not motion for a directed verdict?

    1. Attorney Andrew Branca

      I don’t know for a fact that they didn’t. In fact, I would presume they did, and it was denied, but don’t know for certain–that would be normal practice in any criminal defense. In any case, very, very difficult to get a DV, threshold the State has to meet to avoid that fate is barely above zero.

      This case should never have gotten past a probable cause hearing in the first place, a much higher burden for State than avoiding DV, but here we are.

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