Use of 'Victim' in High-Profile Murder Trials Getting Attention

Kyle Rittenhouse is going on trial this week for the alleged murder and attempted murder of protesters in Kenosha, Wisconsin, last year. A controversial ruling by the presiding judge is sure to bring more attention to the politically explosive case.

Circuit Judge Bruce Schroeder ruled that prosecutors in the case would be unable to refer to the dead and injured as "victims" in the case, while the defense could refer to those same people as "looters," "rioters," and "arsonists."

'Victim' a 'Loaded' Term in Rittenhouse Case

Rittenhouse was 17 in August 2020 when he traveled from his home in Illinois with an AR-15-style rifle to Kenosha, then in the grip of days of unrest after the police shooting of Jacob Blake.

While "patrolling" Kenosha to allegedly protect property and innocent bystanders, Rittenhouse fatally shot two people and shot and injured another protester. He now faces two murder and one attempted murder charge. His lawyers will argue in the trial that Rittenhouse was acting in self-defense to protect himself and others.

In issuing the directive not to refer to the dead and injured as "victims," Schroeder called the term "loaded" and unfairly prejudicial toward Rittenhouse. When it came to labeling the dead, however, Schroeder said: "If more than one of them were engaged in arson, rioting, looting, I'm not going to tell the defense you can't call them that."

However, the surviving person who Rittenhouse shot is currently facing no criminal charges related to arson, looting, or rioting.

Accused Killers of Arbery Want Same Treatment

The murder trial for Gregory and Travis McMichael is getting underway soon as well. The father-and-son pair are accused of killing Ahmaud Arbery, early in 2020. Lawyers for the pair filed a similar motion as Rittenhouse's attorney, asking the court to prohibit prosecutors from referring to the unarmed Arbery as a "victim." The McMicaels claim they acted in self-defense.

"The purpose of this motion is to prevent the prosecution from ignoring its duty to prove beyond a reasonable doubt that crimes were actually committed and that [the] McMichaels committed the crimes as charged," the motion read. The presiding judge has not ruled on the motion yet.

Putting the Victim on Trial?

In cases where the defendant is claiming self-defense, a common strategy is to convince the jury that the "victim" was actually the criminal. In essence, Rittenhouse's and the McMichael's attorneys are going to argue that the only crimes that occurred were on the part of the dead men, and calling those people "victims" will unfairly prejudice the jury.

According to research from the National Crime Victim Law Institute, there are only two instances of cases where an appellate court found the use of "victim" so prejudicial as to require a new trial.

In the Rittenhouse case, prosecutor Thomas Binger protested to Schroeder that he was allowing a "double standard" by letting defense attorneys label the men Rittenhouse shot. Schroeder countered, however, that if the evidence shows the men were engaged in arson, rioting, or looting, then the labels are appropriate. The verdict is sure to generate a lot of outrage and speculation, no matter the outcome.

Related Resources:

• Find a Criminal Defense Lawyer Near You (FindLaw's Lawyer Directory)
• Is it Legal to Shoot an Intruder? (FindLaw's Learn About the Law)
• States That Have Stand Your Ground Laws (FindLaw's Learn About the Law)
• When Can You Legally Use a Gun in Self-Defense? (FindLaw's Criminal Defense Blog)