By Nathan Layne and Brendan Pierson
KENOSHA, Wis. – When George Zimmerman faced life in prison for killing Trayvon Martin, his lawyers chose not to have him testify, a decision some legal experts say contributed to his acquittal in 2013 in the last highly divisive civilian self-defense trial.
Kyle Rittenhouse, the teenager on trial for killing two protesters and wounding a third in Wisconsin last year, appears set to try a different tack. His lawyer, Mark Richards, said in court last week that he would take the stand in his own defense.
Legal experts say it is obviously risky for Rittenhouse to give evidence. For starters, it would open him up to wide-ranging cross-examination about his past statements and actions.
“The annals of criminal law are full of cases where defendants insisted on taking the stand and paid the price,” Daniel Medwed, a professor of criminal law at Northeastern University.
For example, California woman Jodi Arias was convicted in 2013 of murdering her ex-boyfriend and sentenced to life without parole, after testifying that she had done so in self-defense.
The potential upside for Rittenhouse is that jurors would be able to hear in his own words why he believed he had to shoot for his own safety.
Rittenhouse, 18, is charged with reckless and intentional homicides in the killing of Joseph Rosenbaum, 36, and Anthony Huber, 26, and attempted homicide for wounding Gaige Grosskreutz, now 27, with a bullet to the arm.
Like Zimmerman, Rittenhouse is a divisive figure. He is a hero to some conservatives who believe in unfettered gun rights and see the shootings as justified, while many on the political left have labeled him a vigilante killer.
If convicted, he faces a sentence of life in prison. His lawyers have said they will show Rittenhouse acted in self-defense: that he fired the deadly shots out of fear for his own life during chaotic protests that were sparked by the police shootings of a Black man in Kenosha.
Rittenhouse’s lawyers may ultimately decide that putting him on the stand is not worth the risk, especially if the trial appears to be moving in their favor.
During the first week of the trial, they elicited testimony from multiple witnesses supporting their argument that Rosenbaum provoked the teen, a critical element towards justifying the use of deadly force.
The exact number of criminal defendants who take the stand at their trials is not clear. One study, published in the Cornell Law Review in 2009 by professors Theodore Eisenberg and Valerie Hans, found that in 300 criminal trials in four counties, about half of defendants testified.
They found that 60% of defendants without criminal records testified, compared to 45% of those with criminal records, which the authors said likely reflected defendants’ worry that their records would be used to undermine them. About 77% of defendants who testified were convicted, compared to about 72% of those who did not.
Though Rittenhouse did not have a criminal record before the shootings on Aug. 25, 2020, Medwed said attacks on cross-examination could extend to “any instances where Rittenhouse has lied, or is rumored to have lied.” For that reason, Medwed said, lawyers often counsel their clients against testifying.
Still, he said, the risk of testifying can be worthwhile because jurors “naturally want to hear the other side,” even though a defendant has no legal obligation to prove innocence. That may apply especially when a defendant, like Rittenhouse, is asserting self-defense.
“In a self-defense case, it is often extremely hard for the defendant to win without testifying simply because there is no other way for the jurors to learn about the circumstances that led the defendant to think that self-protective force was necessary,” said Michael O’Hear, a professor at Marquette Law School.
Another key factor is more subjective: will the jury like the defendant?
Don West, one of Zimmerman’s trial lawyers, said the defense decided they did not need Zimmerman’s testimony because forensic evidence and statements Zimmerman had made to police were enough to support his case.
But West also said he believed Zimmerman would not have been treated fairly had he taken the stand.
“He was reviled. He was the most hated man for a long time,” West said. “The focus would have been so intense on him that he wouldn’t have gotten the benefit of any doubt.”
On Feb. 26, 2012, Zimmerman, who was then a neighborhood watch captain in a gated community in Sanford, Florida, fatally shot Martin after the teen’s trip to a convenience store to buy snacks. The incident helped spark the rise of the Black Lives Matter movement.
Patrick Cafferty, a criminal defense attorney in Wisconsin, said he thinks Rittenhouse will testify. He said he saw value in the teen telling the jury directly that he feared for his life.
“I think the reward outweighs the risk,” Cafferty said.