Editor’s Note: Laura Coates is a CNN senior legal analyst. She is a former assistant US attorney for the District of Columbia and trial attorney in the civil rights division of the Department of Justice. She is the host of the daily “Laura Coates Show” on SiriusXM. Follow her @thelauracoates. The views expressed in this commentary are her own. View more opinion on CNN.
For a defendant to have a fair trial, there are loaded terms that should never be used in a courtroom.
The Wisconsin judge in the murder trial of Kyle Rittenhouse is right about that.
But the word “victim” is not one of them.
And that’s where the judge is very wrong.
Frankly, “victim” is no more pejorative than the word “defendant.”
It is regarded as an identifier, much like commonly used trial terms like “evidence” or “weapon” or “testimony.”
Nothing about its use guarantees a conviction or fatally undermines a defendant’s right to a fair trial.
The use of either term – “victim” or “defendant” – does not absolve the prosecution of its burden to prove a defendant’s guilt beyond a reasonable doubt.
Nor does their use alone persuade a juror to convict.
They orient the conversation.
Yet, Kenosha County Circuit Judge Bruce E. Schroeder, who is presiding over the murder trial of Rittenhouse – the teenager who killed two men and wounded another during 2020 protests over the police shooting of Jacob Blake – has decided that the term “victim” is too powerful and prejudicial to be used to describe these men in court.
In a final motions hearing Monday, the judge reasoned that the term “victim” was too loaded because it suggested that Rittenhouse — charged with felony homicide related to the shooting and killing of Anthony M. Huber and Joseph Rosenbaum and felony attempted homicide for allegedly wounding Gaige Grosskreutz – committed a crime because he was not otherwise entitled to shoot them in self-defense.
His reasoning? If a jury hears the word “victim,” they will be incapable of objectively evaluating whatever evidence Rittenhouse might present to show that he was in fear of his life when he shot the three men. Using the term “victim” to describe the three men would cast Rittenhouse in such a negative light that the jury would somehow be compelled to convict him, this thinking goes.
Everyone is entitled to the benefit of the doubt for the crimes they’re accused of, and the word “victim” would preclude that benefit.
According to that logic, one would assume that in a trial the judge would apply the same principle to the use of any term that negatively depicts the person described, especially if the term is an accusation of a crime, right?
Wrong.
Rittenhouse is free, in Schroeder’s court, to refer to three men he shot, two of whom lost their lives, as “rioters” and “looters” if he can present any evidence that they, in fact, were.
But here’s the rub. Two of the men are deceased, and the other has never been charged with a crime for any behavior associated with his participation in the protest.
At best, Rittenhouse, therefore, would be presenting evidence through speculation that their mere presence confirms criminal behavior entirely unrelated to a claim of self-defense. There is no allegation, and Rittenhouse has not claimed, that he was the owner of any property that was stolen or dwelling that was damaged. He merely states that he was patrolling the streets of Kenosha with an AR-15 out of a sense of civic duty.
So even if there were any evidence presented that these men were somehow involved in criminal activity, which prosecutors have not even suggested, it would have no relevance to Rittenhouse’s underlying claim of self-defense of his own person.
This is precisely why the use of the terms “rioters” and “looters” to describe these three men in relation to a self-defense claim is not only legally inapplicable but prejudicial.
But the judge cares not about the prejudice. “Let the evidence show what the evidence shows, that any or one of these people were engaged in arson, rioting or looting, then I’m not going to tell the defense they can’t call them that,” Judge Bruce Schroeder boldly said during the pre-trial hearing. Rittenhouse “can demonize them if he wants, if he thinks it will win points with the jury,” Schroeder said.
But the judicial inconsistencies don’t end there.
The judge believes the term “victim” is too loaded, but said the prosecution is allowed to theoretically refer to Rittenhouse as a “cold-blooded killer” In its closing arguments.
So what, pray tell, do we call the people killed in cold-blood? Decedents? The murdered? The killed? Whatever you decide, just don’t let this judge catch you saying something as loaded as a “victim.”
Confused? You should be.
The judge’s rationale defies logic.
Or, perhaps more disturbingly, defies fairness.