(Not sure if this should be on the Politics.SE)

From divibisan's answer to one of my questions on Politics.SE:

You won't find many people seriously arguing that the Rittenhouse jury ruled incorrectly as a matter of Wisconsin state law. The standard for self-defense is so loose, that it's hard to see how they could have found him guilty of first-degree murder:

Under Wisconsin law, you can kill people in self-defense if you reasonably believe that doing so is necessary to spare yourself or others from imminent bodily harm or death. This belief need not be accurate. Nor must it be reasonable from an objective perspective. It only needs to be reasonable from the subjective point of view of the shooter in the moment he or she pulls the trigger.

If most people won't seriously argue this, then why would prosecutors even bother to bring the case to trial? It'd just be a waste of time and money. Furthermore, even if the prosecutors bring the case, presumably courts should decline to hear it (since they already moot cases to not waste taxpayer money).

Are prosecutors empowered to prosecute cases that will never result in guilty verdicts? Can prosecutors ever be classified as vexatious litigants?

  • 9
    There was a very real chance of his conviction. One opinion is not the law.
    – gnasher729
    Commented Nov 25, 2022 at 7:02
  • 1
    You're asking this question in the past tense, right? Commented Nov 25, 2022 at 7:02
  • 3
    It is entirely possible for a defendant to move to dismiss due to lack of evidence. Rittenhouse's attorney almost certainly did so, or would have done if they felt it had a chance of success. The fact that no such motion was granted signals that the court did not agree with your assertion. Commented Nov 25, 2022 at 7:10
  • Dismissal for mootness is a separate thing, I suppose you know? The Rittenhouse case was certainly not moot. The only way it could have been moot was if the defendant had died before trial, or something on that order. Commented Nov 25, 2022 at 7:10
  • 2
    It would be possible to prosecute e.g. if you had evidence he didn't believe he was under threat, such as a text message or recording (I'm sure they'd search his phone and social media). That would be the issue for the trial to establish (not whether the belief was reasonable or rational). I've not looked into the evidence.
    – Stuart F
    Commented Nov 25, 2022 at 10:53

4 Answers 4


The trial was held because A Kenosha County Court Commissioner ruled there is enough evidence for Kyle Rittenhouse to stand trial for homicide charges.

“All this court needs to find was that a felony was committed and probably committed with this defendant,” said Thomas Binger, the assistant district attorney of Kenosha County.

The court agreed.

  • 4
    Yes, the fact that Kyle did not deny the killing but asserted it was done in self defense very much makes a conviction possible. At least he did not talk to police. Incredible how your chances of escaping serious jail time increases drastically by just keeping your mouth shut.
    – Neil Meyer
    Commented Nov 25, 2022 at 10:16
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    @NeilMeyer Under Wisconsin case law, you can't simultaneously claim "it was self defense" and "I didn't do it". He had to admit it to claim self defense, and since there were cameras, it would have been insane to not claim self defense.
    – D M
    Commented Nov 25, 2022 at 14:11
  • Do you have to admit to claim self defense? My uneducated guess would have been that a defense attorney is free to make an argument along the lines of, "The prosecution has failed to prove that my client killed the victim, and even if my client did kill the victim, the prosecution has failed to prove that it was not self-defense." Commented Nov 25, 2022 at 18:49
  • @Tanner: In theory you can make such an argument, but if there's video evidence of the defendant actually shooting the victim, it's going to be very hard for the jury to buy it. In practice, juries sometimes reach verdicts on the basis of "he's a liar so let's rule against him," despite the court's instructions to the contrary.
    – Kevin
    Commented Nov 25, 2022 at 20:15
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    @Tanner According to the annotations, "When a defendant testified that the defendant did not intend to shoot or use force, the defendant could not claim self-defense." Also, in order to get a jury instruction on self defense, you need at least "some evidence" that it was indeed self defense; you can't just get it because you ask for it.
    – D M
    Commented Nov 25, 2022 at 23:43

In order to prosecute someone in Wisconsin, the district attorney must first file a complaint with the court (Wisconsin statute 968.02.) If the judge does not find that there is probable cause, the complaint will be dismissed. You need this to even get an arrest warrant.

After the defendant is arrested, if the charge is for a felony, the prosecution then needs to then convince the court that there is probable cause in the preliminary examination (970.03). At this hearing the defense is allowed to cross-examine witnesses and call their own witnesses. Then, "If the court does not find probable cause to believe that a crime has been committed by the defendant, it shall order the defendant discharged forthwith."

This means that, to even get to the trial, you have to convince a judge twice that there is probable cause, and one of those times the defense is allowed in. There is no way that a prosecutor would be found to be a "vexatious litigant" because they brought a case in which the courts found there was probable cause twice.

  • "This means that, to even get to the trial, you have to convince a judge twice that there is probable cause" For any crime, or just a felony? Commented Nov 26, 2022 at 4:17
  • Just for a felony. "A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant." For misdemeanors you still have to have the complaint approved by the judge, though.
    – D M
    Commented Nov 26, 2022 at 4:35

So Self-Defense is in a class of defenses to a crime or tort called Affirmative Defense. Affirmative Defense is not the same of the defense that it was not possible for the Defendent to violate the law because of something factual that cannot (I.E. If the Defendant was out of country at the time the murder happened, than there is know physical way the Defendant could have committed the crime because he cannot be in two places at once.).

Rather, an affirmative Defense shifts the burden slightly in that the Defense must prove that the affirmative defense they claim would nullify an element of an incident that would make the events no longer meet all the required elements of the crime.

For simplicity sake, in a hypothetical jurisdiction the crime of murder in the first degree is defined as follows:

A person shall be guilty of the crime of Murder in the First Degree if:

1.) The person commits a homicide AND

2.) That the person showed planning to a degree to indicate prior planning

3.) That the homicide was unjustified.

That means, in order to convict, all three conditions must be met. If even one is not met, than the Defendant is innocent of this specific crime (They could be guilty of another crime, such as Murder 2 or Manslaughter or Attempted Murder, but they aren't guilty of Murder 1.).

An affirmative defense is an argument that the defendant did not commit the crime because, while some elements of the crimes definitely did occur, not elements occurred to make it this crime OR another law allows for an exception to this law.

As a general rule, in the U.S., Self-Defense permits for the use of force to defend ones self (or others including property) if they reasonably certain they will become victims of a crime with the minimum amount necessary to prevent the crime up to and including lethal force.

So with that in mind, Rittenhouse is arguing that he was about to be a victim of a crime, he had not provoked the altercation, and he used only the force necessary to prevent the crime.

Essentially, the trial was there to establish not if Kyle killed the person he was accused of killing nor if it was a premeditated killing as both those conditions are met, but rather if Kyle was justified in killing the deceased because he was preventing an imminent crime against himself.

In an ordinary trial with out an affirmative defense, Kyle is under no obligation to offer any evidence to support his case. It is the prosecutor who must prove that Kyle is did what he says Kyle did. If the prosecutor cannot do it, Kyle is "not guilty" and he doesn't have to say a thing (Rarely does this happen and it's rarer still that this strategy actually works for the defense when used). But if you use affirmative defense, you must admit some element of the crime did occur, and are now arguing that all elements of the crime occurred and must provide evidentiary support to that fact. That said, the burden of proof for a self-defense is still lower than the burden of proof for criminal conviction, so the prosecutor still must refute the evidence provided by the defense in order to convict. You may doubt Kyle's statements, but you may not convict him while doubting the prosecutor's own statements.

  • In Wisconsin, so long as the defense presents "some evidence" of an affirmative defense like self defense (which is a very low bar), the prosecutor must disprove it beyond a reasonable doubt; the bar isn't lower for the prosecution for affirmative defenses like it is in some other states. See State v. Head, 648 NW 2d 413 - Wis: Supreme Court 2002 and Moes v. State, 284 NW 2d 66 - Wis: Supreme Court 1979.
    – D M
    Commented Jul 20, 2023 at 2:17

There may have been a political reason.

As you said, the definition of self-defense is very vague. While the law technically allows you to take this case to court (as explained in @Tiger Guy's answer), it may be practically impossible to get a jury to convict.

But unless politicians actually see this happen and realize that it essentially allows many murders with impunity, they will not be moved to change the law.

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