Rittenhouse Defense Could Have a Big Problem. Perhaps the worst decision for Rittenhouse was a decision by the judge as to a provocation instruction to the jury. This might allow the prosecution to ultimately prevail if they can convince the jury that Rittenhouse “provoked” the attack. The prosecution asked that the jury be instructed to consider whether Rittenhouse provoked the situation to start with as to Rosenbaum. The prosecution claimed that Rittenhouse had pointed the gun at people prior to the shooting of Rosenbaum. The only evidence the prosecution had were grainy pictures that seemed open to interpretation.
The judge said he would allow the jury to consider the question and give them a provocation instruction.
That instruction to the jury says the following:
815 PRIVILEGE: SELF-DEFENSE: NOT AVAILABLE TO ONE WHO PROVOKES AN ATTACK: REGAINING THE PRIVILEGE — § 939.48(2)
[ADD THE FOLLOWING TO WIS JI‑CRIMINAL 800, 801, OR 805 WHEN SUPPORTED BY THE EVIDENCE.]
You should also consider whether the defendant provoked the attack. A person who engages in unlawful conduct of a type likely to provoke others to attack, and who does provoke an attack, is not allowed to use or threaten force in self‑defense against that attack.
[USE ANY OF THE FOLLOWING PARAGRAPHS THAT ARE SUPPORTED BY THE EVIDENCE.]
[However, if the attack which follows causes the person reasonably to believe that he or she is in imminent danger of death or great bodily harm, he or she may lawfully act in self‑defense. But the person may not use or threaten force intended or likely to cause death unless he or she reasonably believes he or she has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm.]
[A person who provokes an attack may regain the right to use or threaten force if the person in good faith withdraws from the fight and gives adequate notice of the withdrawal to his assailant.]
[A person who provokes an attack whether by lawful or unlawful conduct with intent to use such an attack as an excuse to cause death or great bodily harm to another person is not entitled to use or threaten force in self‑defense.]
So you can see this makes the case much more difficult for the defense if the jury buys this provocation argument — it could effectively take away self-defense as an argument except under the above structures and Rittenhouse Defense Could Have a Big Problem. Previously it looked like a walk-away acquittal but if the prosecution sells the jury on this, Rittenhouse could potentially get a very bad result.