After giving his testimony to judge and jury in his defense, Kyle Rittenhouse was cross-examined by the prosecution, who stated their claim that Rittenhouse intended to kill people the night of August 25, 2020. The prosecutor tried to bring up Rittenhouse's invoking his right to remain silent after his arrest, which is long-established in US law to not be permissible to hold against a defendant.
The state tried to show that Rittenhouse was not being entirely honest on the stand, "tailoring his testimony" after having heard eye witness testimony, and seen media accounts of that night and the reactions to it over the past year.
The defense issued an objection, saying that the state was trying to "comment on my client's right to remain silent."
"I am making the point that after hearing everything in the case, now he's tailoring his story to what has already been introduced," the state's attorney said.
The judge said "the problem is this is a grave constitutional violation for you to talk about a defendant's silence," and said that the prosecution was "right on the borderline." The jury was then brought back in.
Rittenhouse stated that he was not intending to kill anyone, but was instead trying to stop them from killing him. "I wasn't using deadly force to protect the property," he said, "I used deadly force to protect myself."
It was only a short time later that the judge had to admonish the state's attorney, Mr. Binger, again. After the judge dismissed the jury out of hearing range for a second time, Rittenhouse's attorney said that he believed the state was "trying to provoke a mistrial" by continuing to calling into question his client's silence after he was arrested in August 2020.
Americans have Miranda right to remain silent post-arrest, and the prosecutor, of course, knows this. That silence cannot be used against a defendant in a court of law.
"You are already, I was astonished, when you began your examination by focusing on the defendant's post-arrest silence. That's basic law, it's been basic law in this country for 40 years, 50 years. I have no idea what you would do something like that," the judge said. Miranda rights have been in effect since 1966, per the Supreme Court.
The prosecutor attempted to use evidence from a night when Rittenhouse was not armed as the basis for showing that he was armed with the intent to kill on August 25. Binger said that he was "trying to impeach the defendant on his beliefs."
"I believe that I am entitled to impeach the defendant on his beliefs," Binger said.
"You're talking about his beliefs," the judge said. "I think that's what they call—"
"His statements do, your honor, because he just said "deadly force, can't threaten to use deadly force to protect property, so now I'm impeaching him on that."
At issue was the fact that the prosecution was bringing up "something that's been excluded in a pre-trial order," though the prosecutor said it was not. The judge said that it in fact it was.
The judge said that Rittenhouse's "attitudes," per the prosecution's cross-examination as to a separate incident on August 10, was not relevant to the trial. The prosecutor said that ruling was given before the testimony given on Wednesday.
"Don't get brazen with me," the judge said.
"I see no similarity," the judge went on to say, "between talking about having your AR gun, which you don't have, so that you could take shots, fire rounds at these thought-t0-be-shoplifters, and the incidents in these cases, which are not, there's nothing in your case that suggests the defendant was lying in wait waiting to shoot somebody, or reflecting upon the shooting for a vast amount of time.
"Every one of the incidents," the judge went on, "involves matters that involves seconds in time. I commented at the time that I don't see the similarity, and I don't see the similarity now... That's the whole rule."
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