by Art Joslin, J.D., D.M.A.
By this time, you are well-aware that Kyle Rittenhouse was acquitted at trial of all charges levied against him. Before we get into the details of lessons learned, I want to clarify something from last month’s eJournal. I alluded to, in passing, that the Rittenhouse defense team would need to prove their case by a reasonable doubt. Because of publication deadlines and my rush to get information to the members, I hastily overlooked the need to explain this issue. Allow me to clarify.
The burden of proof is beyond a reasonable doubt; this burden falls on the prosecutor. He must prove his case by that standard. In a case of affirmative defense of self defense, however, the defense has the burden of production and should produce some type of evidence, at some level above zero, to show self defense. The old standard was the defense must prove self defense by a preponderance of the evidence. This is no longer the case as the last holdout state, Ohio, changed its statute. This went away March 19, 2019 and is now the standard in all 50 states. You may still see preponderance of the evidence used in a self-defense immunity hearing. If immunity is not granted, then the case can go to trial. If immunity is granted, case over.
This would be a good time to explain these burdens. Burden of proof is on the prosecution to prove the charges against the defendant at trial, beyond a reasonable doubt. Beyond a reasonable doubt is a high standard. Although most legal scholars are hesitant to place a threshold number on the standard, many agree it is somewhere north of 90%. However, the defendant, in any criminal case, may sit mute and not offer any evidence or testimony, relying solely on the lack of ability of the prosecution to prove the charges against them (at least they hope so). Although the defense does not have to offer anything, typically the burden of production falls on the defense. In other words, the defense has the burden to produce some minimal amount of evidence, to the trier of fact, to dispute the prosecution’s charges.
We received plenty of emails and inquiries into the actual trial process of State of Wisconsin vs. Kyle H. Rittenhouse. Members wanted to know why the defense team wasn’t objecting more often. It’s called trial tactics. I’ve watched plenty of trials where I sit and scream internally, “Objection!” But let’s parse this a little more. If the defense counsel objects to everything they can, it can paint them as abusive, overly interruptive, and generally in a negative light to the jury. Juries don’t like that. They want to hear the facts without interruption and make their decision. However, the defense should object when the prosecution goes awry. Additionally, the defense must object at certain times to get their objection on the record in case they need to appeal; it preserves the issue. So, trial attorneys object when needed, object when required, but many times they won’t object if opposing counsel is making their case for them, as we saw multiple times in Rittenhouse.
The first lesson we learn from this case is to make sound decisions regarding events and situations in which we choose to involve ourselves. I have been to protests and marches in both Detroit and Chicago. I chose to be there because of the historical aspect of the protest. I have attended these events as an observer, not an active participant. When Tucker Carlson interviewed Kyle Rittenhouse, Kyle stated he had permission to watch one of the auto stores to prevent looting. I’ve also worked in the armed security industry. Never was there a time I showed up with a team without proper pre-planning that was done a day or so before the security event. To show up to a racially-charged protest that has national significance, without proper planning, surveillance, experience and training is never a good thing. Stay away from people with a mob mentality. I’ll leave it right there.
Next, don’t bring a skateboard to a gunfight. I don’t say this sarcastically; I say it with all sincerity. Making a conscious decision to involve yourself in a deadly force situation, or really, in any level of force situation, be sure to have the adequate tools to defend yourself. This is one element in the mob mentality that happens when groups of people believe they are invincible and believe they can get their whacks in and then move out of the situation without suffering harm. Please don’t be that person. Be a good witness. Call 911. Run away. In our concealed carry classes, we should be taught to move to cover and avoid making ourselves a static target. If I see the other person has a gun, I don’t purposely move into the fray thinking I’ll hit him with my club and get away without being shot. That is stupidity. I realize that sometimes we could be placed in a situation where we only have what we can use in our immediate environment to defend ourselves. In those situations, too, we need to be thinking about getting out of harm’s way, not running into it.
Third, I’ve read many comments in the gun forums (and one nationally recognized trainer) saying it is a waste of time, or that it is even silly, to focus on the lessons we can glean from the way the trial played-out in Kenosha. I believe what we can learn is an important aspect of the entire event. Realize that if you are involved in a self-defense incident, you will be scrutinized to no end by family, media, outsiders, organized anti-gun groups, neighbors, etc. Perhaps you won’t be scrutinized at the national and international level Kyle Rittenhouse was, but you will suffer the damage emotionally, physically, and mentally. It’s a proven fact in post self-defense incidents. Many books have been written about this aspect of how the body reacts to post-traumatic events. Massed Ayoob stresses this area of self defense in his classes. The Network has member-accessible videos that discuss this same topic. Once a person survives an attack and successfully defends themselves against their assailant, only then does the journey through the mire of emotional and physical stress play out. In the Tucker Carlson interview of Rittenhouse, Kyle seemed very put together and succinct in most of his answers. However, his journey has only begun. This is something he will never forget, and the aftermath of stressors will follow him the rest of his life.
Additionally, be prepared for the government to come after you in ways you’ve never imagined. The role of the prosecution in any criminal case is not to get a conviction; it is to seek justice. Granted, getting a conviction against a serial sex offender may very well be justice. But attempting to try a case because of political motivations or pressure because you don’t agree with the defendant’s actions is certainly not silly. Expect the government to go after you with the vitriol with which they went after Kyle.
Folks, some will miss the point here. I speak with people every day who truly think self defense is the in-the-moment act of surviving. Imminent survival is only one part of the equation, although granted it’s the most important. However, pre-survival is going to the range, training, role-playing, visualization, and training in medical skills, to name a few. Consider post-survival skills and their role. The pre-survival training in medical skills might come in handy if you are injured and need to apply those skills for yourself or a loved one. I routinely carry a small med kit and have it with me or can access it within a few seconds. It contains what I need to increase survivability in case I am shot or stabbed. It is for me, although I can use it for my partner if needed. I would suggest you do the same.
Post-survival skills may also be needed months and even years after the incident. PTSD, emotional, psychological, and physical issues may continue for years. They not only affect the survivor but also their spouse, children, friendships, and other relationships. Learn from the Rittenhouse case; prepare pre- and post- self-defense incident. The effects of the 3-second self-defense incident will last a lifetime.
There are so many more things we can learn from Rittenhouse. These are but a few that come to mind. Please keep your emails coming and watch for more content in the form of video blogs on the Network website. Be safe!
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Art Joslin, J.D, D.M.A. is the Network’s new Legal Issues Editor. Contact him with your questions and comments at
To read more of this month's journal, please click here.