In 2020, there was quite a bit of civil unrest. Even cities that historically have had very few issues experienced organized protests. Some of those cities also experienced property damage from rioters and looters. And that brings us to Kenosha, WI.
In case you haven’t been following the story, let’s review. Kenosha, WI is a medium-sized city about midway between Milwaukee and Chicago. It’s not one of the cities you think of when you think of protests and riots, but that all changed last year when a man named Jacob Blake was shot and seriously injured by Kenosha police. Kenosha erupted in protests, and as sometimes happens rioters and looters took the protests as an opportunity to cause damage and destruction in Kenosha’s downtown.
A 17-year old boy named Kyle Rittenhouse came up from Illinois to Kenosha with a claimed intention of “protecting businesses”. Bringing a medical kit and an AR-15 style rifle, he traveled to downtown Kenosha. And during the protests, he wound up shooting and killing two people, and shooting and seriously injuring a third. He was charged for those, as well as a number of additional things including curfew violations and “possession of a dangerous weapon by a minor”.
As of this writing, he’s just recently gone to court to fight these charges.
We’re not going to talk about the merits (or lack thereof) of his case, but rather an interesting issue that’s arisen in the courtroom – the controlling of language related to the trial.
In the legal world, it’s acknowledged that language creates bias. If I point to somebody and say that they’re a “victim”, what’s the first thing that pops into your head? You almost certainly want to know what crime they’re a victim of. And if I say that Person X is a victim of Person Y, you’ll jump to the immediate conclusion that Person Y must be a criminal. This is how language works, and it’s perfectly natural.
But that creates a problem in courtrooms. If a lawyer refers to the “murder victim”, that implies two things – that the person was a victim, and that somebody committed murder. This is why the language that people like the judge, the prosecutor, and the defense lawyer use in a trial is critical. Whether or not there was a murder at all – and thus a murder victim – is what the jurors are in court to determine. And allowing lawyers to use prejudicial language such as “murder victim” is effectively allowing lawyers to testify – something that lawyers aren’t ethically allowed to do, since they didn’t witness the events.
The judge in this trial has, therefore, banned the prosecutor’s use of language referring to “victims”. This doesn’t seem unusual to me, as that language would almost certainly bias the jury against the defendant. But what’s interesting is that the judge seemingly hasn’t banned the lawyers from using other prejudicial language, such as “rioter” and “looter” – even though those are words with legal definition, and there hasn’t been any court that has determined the appropriateness of those words in this case. From everything I’ve heard, the judge in this case is a good judge that wants a fair, impartial trial – but I believe this choice to be slightly biased in favor of the defense.
Or put another way, the lawyers for both sides should be held to equal standards.
To be absolutely clear, I don’t believe that people testifying should have their personal opinions censored. If Kyle takes the stand and talks about “rioters”, that speaks to his mental state and perception of events. If the person who got shot refers to Kyle “murdering” the others, that speaks to his mental state and perception at the time as well. Figuring out not just what happened, but what the people involved thought was actually happening, is crucially important in trials like this.
But I believe that both the prosecution and defense should be held to high standards and both should be an even grounds when it comes to language and labels.
Incidentally, this is one of many reasons that people accused of crimes need qualified counsel. There are dozens of little things that can bias a jury for or against one side in a court case, and lawyers know them all. The state that’s prosecuting the crime always has a qualified attorney that’s fighting hard to get the case to go their direction – and defendants need a lawyer to protect their rights. I really hope you never find yourself in a situation where you need a criminal defense lawyer, but if you do please don’t hesitate to call!