Last year the country witnessed the media’s breathless coverage of the trial of Illinois teenager Kyle H. Rittenhouse.
Rittenhouse was charged with, and ultimately acquitted of, the murder of three men, two of whom died. Central to prosecution’s case was the claim, reflected in the jury instructions, that Rittenhouse “provoked” the attacks. Had the jury agreed, Rittenhouse would have been conditionally barred from cloaking himself in the “ancient right” of self-defense’s protections. A conviction would have been a practical certainty.
The state’s provocation case, however, quickly derailed, but for reasons almost completely overlooked by most in the media. The legal commentariat, likewise, seemingly did not appreciate, or perhaps just ignored, that for Wisconsin law to conditionally strip Rittenhouse of the ability to claim self-defense, his conduct had to be both (1) “unlawful” and (2) “of a type likely to provoke others to attack.”
But far more consequential than those in the media bungling the legal definition of “provocation” was that the prosecutors, in their hours of opening statement, closing argument, and rebuttal argument, made many far-flung claims, yet inexplicably never even once mentioned the word “unlawful.” In so doing they fell short of fulfilling their duty to explain to the jury with precision how the facts elicited at trial established this critical element to their case. Raising the question of whether this was a mere oversight or an intentional decision, moreover, the prosecution glossed over this key element despite having argued provocation and unlawfulness to the judge during the jury instruction conference.
Criminal law 101 teaches that the prosecution has the burden of proving each element of provocation to the jury’s satisfaction. As experienced criminal law practitioners know, and as common sense teaches, the Rittenhouse prosecution team’s failure to even mention the key gate-keeping element of unlawfulness made it exceedingly difficult for a jury to conclude beyond a reasonable doubt that the defendant’s conduct constituted legal provocation of a type barring his self-defense claims.
In fact, the prosecution’s failure to attempt to articulate a factually supported theory of Rittenhouse’s “unlawfulness” raises the question of why Kenosha County Circuit Judge Bruce Schroeder included the instruction in the first place. These material oversights needlessly injected error into the record and created a considerable risk of appellate court reversal, had Rittenhouse in fact been convicted.
‘Acting Provocatively’ (or Immorally or Stupidly) v. Legal Provocation—A Major Distinction
As noted, Wisconsin’s provocation statute provides that the state must establish beyond a reasonable doubt that the purportedly provocative conduct was both (1) “unlawful” and (2) “of a type likely to provoke others to attack.”
“Unlawful,” in turn, is defined as “tortious or expressly prohibited by criminal law or both.” (There is also an exception for intentional provocation through lawful conduct, but this was not an issue in the Rittenhouse case and, therefore, is not relevant here.)
For starters, “unlawful” is a term not necessarily readily understood by jurors (for example, and not mentioned by the prosecution team, would it be obvious to them that disorderly conduct could qualify as “unlawful” conduct for these purposes?). That the Wisconsin legislators felt compelled to define “unlawful” within the self-defense statute underscores this point. Yet, the Wisconsin Pattern Jury Instructions on provocation do not define “unlawful.”
That said, the Wisconsin jury instructions’ introduction also provides that the pattern instructions merely create “minimum standards” that should be modified to “accommodate the facts of the case.”
In short, Schroeder would have been fully within his rights to define “unlawful” for the jury in a trial where he included the term in the jury instructions after the prosecutors outside of the jury’s presence, but without specificity, broadly claimed they carried their burden as to this element. Such a definition would surely have been helpful to the Rittenhouse jurors, who (for good reason) may have been hard-pressed to understand how the prosecution’s remarkably loose and scattered “provocation” arguments during closing and rebuttal matched up with the very specific legal requirements contained in the jury instructions.
Prosecution and Media Failures to Understand Provocation
The Rittenhouse case launched a long-overdue national debate about the proper contours of self-preferential killing. That case, in tandem with the high-profile Georgia case of three men charged with (and ultimately convicted of) the tragic Feb. 23, 2020, videotaped shotgun killing of 25-year-old Ahmaud Arbery, focused the national debate on self-defense and its “provocation exception.”
The Rittenhouse prosecutors received their share of criticism. As relevant here, it is fair to say that they engaged in flailing attempts to establish legal provocation by telling the jury that Rittenhouse, for example, was “running around” with a gun; created a “danger;” “threatened other people’s lives;” and never “kicked [the attackers] in the testicles,” “dropped” his gun, or otherwise “surrendered” to the attackers.
Even if entirely accurate, however, these factual claims fall far short of establishing that Rittenhouse’s actions met the legal standard of “tortious or expressly prohibited by criminal law or both.” The prosecutors not once attempted to tie Rittenhouse’s conduct to a particular criminal prohibition (such as the aforementioned disorderly conduct) or tort. This puzzling prosecutorial approach created ample opportunity for juror confusion.
Much of the media, for its part, similarly made a hash of Wisconsin’s law on provocation.
Consider, for example, the representative comments of a prominent law professor interviewed on the day of the Rittenhouse jury verdict. He opined that one “could make the argument that by walking around with the gun in what many would call a provocative way should make Rittenhouse at least somewhat responsible for inducing others to challenge him.”
True, the professor’s analysis generally tracks the arguments made by the Rittenhouse prosecutors who in their closing summed their understanding of the provocation bar up by telling the jury that you “cannot claim self-defense against a danger you create.” At the risk of spotting the pig in the python, however, acting in a socially undesirable, ill-advised, immoral, stupid, or other “provocative way” is not enough. Such conduct may, in a but-for sense, “create” a “danger.”
But this, without more, as a matter of law is a far cry from engaging in the (1) “criminal” or (2) “tortious” provocative conduct the statute requires. Even the most cursory reading of Wisconsin’s self-defense statute should make the defects in this line of argumentation obvious.
Equally off the mark were some commentators’ claims that Schroeder’s decision to throw out the minor in possession of a dangerous weapon charges doomed the state’s provocation argument. The commentators argued that Rittenhouse’s “illegal possession of a semi-automatic rifle provoked others to attack him” and that Rittenhouse “provoked others to attack him by openly carrying his semi-automatic rifle at a mob scene.” Being underage with a firearm (or, for that matter, otherwise unlawfully possessing a firearm), after all, cannot reasonably be said to be unlawful conduct “of a type likely to provoke others to attack.”
Stated differently, committing a regulatory offense cannot sensibly be said to “provoke” a person to commit a violent act upon another. Any different construction would create a dangerous doctrine inconsistent with the criminal law’s broader violence-reduction objectives. (And, in any event, there was no evidence that any of the attackers knew Rittenhouse’s actual age).
Self-defense is serious business. Those who explain it to us, whether we are in the jury or in the public, have a duty to get it right.
We have now seen how the prosecution and many in the media, as well as the judge in the case, seemingly did not properly understand Wisconsin’s law on provocation (and, in some cases at least, may have knowingly misconstrued it).
Stay tuned for more on this issue.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
T. Markus Funk, a former federal prosecutor in Chicago, is a partner a Perkins Coie in Denver. He is the author of the book: Rethinking Self-Defence: The ‘Ancient Right’s’ Rationale Disentangled and has published 2021 law review articles on self-defense with Georgetown’s American Criminal Law Review, the Columbia Journal of European Law, the South Carolina Law Review, and the Nebraska Law Review. His Ph.D. thesis at Oxford University conducted a value-centric, comparative examination of self-defense laws across nations.
He extends a special thanks to Sean Solis for his help in preparing this Insight.