By Joyce Vance

Dear Reader,

There was a lot not to like about the Kyle Rittenhouse trial. There’s been much outrage—rightfully—about the behavior of Kenosha County judge Bruce Schroeder during the trial. But while Judge Schroeder’s conduct and apparent bias has given the public reason to doubt the fairness of the trial, he’s not the only one at fault. Throughout the trial, the prosecution has made tactical missteps. Prosecutors have to be able to deal with all kinds of behavior from judges at trial, because they can’t appeal from a jury’s acquittal of a defendant. Whether evidence and testimony are excluded rightly or wrongly, prosecutors have to be able to present their case using the evidence that has been admitted at trial. 

And it’s not always to the prosecution’s disadvantage when evidence is excluded. For example, if the judge had allowed the prosecution to introduce evidence that, Rittenhouse, following his release on bond, had hung out with members of the white nationalist Proud Boys wearing a shirt that said “Free as Fuck,” they’d be laying the groundwork for Rittenhouse to have a strong avenue to appeal. While that behavior is clearly abhorrent, it has little relevance to the charges brought against Rittenhouse and could inflame the jury to make a decision based on emotion rather than fact. If such evidence—what’s called “unfairly prejudicial” evidence — had been introduced, it could have led to a reversal of conviction on appeal. That the prosecutors sought to introduce this evidence, knowing that it could create issues on appeal, was a strategic error. Successfully prosecuting a case requires sticking to the evidence that is essential to securing a conviction and avoiding evidence that could prove unnecessarily problematic.