The decision of Judge Bruce Schroeder, the judge presiding over the Kyle Rittenhouse trial, to bar the prosecution from referring to the people he shot as “victims” has sparked debate. This Essay discusses the significance of this distinction as researched in a recent study.
In August 2020, Kyle Rittenhouse traveled from Illinois to Kenosha, Wisconsin, with a semi-automatic rifle. He claimed that he went to protect businesses in Kenosha from looters. Videos show that, while in Kenosha, Rittenhouse shot Joseph Rosenbaum in a parking lot after Rosenbaum chased and attempted to take Rittenhouse’s rifle. Videos show that a group of people chased Rittenhouse as he was leaving the scene. While running away, Rittenhouse tripped and fell to the ground. While Rittenhouse was on the ground, two men tried to take away his rifle. Rittenhouse shot at these people, and then ran toward the police. In total, he shot three men, killing two of them. Rittenhouse was charged with two counts of first-degree homicide and one count of attempted homicide, to which he pled not guilty. Although Rittenhouse and the three people he shot were all white, the case has sparked discussion about racial issues, such as the disparate treatment of white and Black defendants in the criminal justice system. Furthermore, the protests in Kenosha were the result of a police officer shooting a Black man, Jacob Blake.
Even then President Donald Trump weighed in, claiming that if Rittenhouse had not acted, “he probably would have been killed.” The controversy further escalated when, on October 25, 2021, Judge Schroeder granted a pre-trial motion to bar the prosecution from referring to the three people Rittenhouse shot as “victims” or even “alleged victims.” The terms “complaining witness” and “decedent” were expressly allowed. The judge further ruled that he will allow the people Rittenhouse shot to be referred to as “arsonists,” “looters,” and “rioters,” if the defense presents evidence to support such classifications. The judge in the Rittenhouse case has a long history of barring the word “victim,” but he acknowledges that “very few judges” share this position. The judge also barred a video of Rittenhouse fifteen days before he went to Kenosha, in which he stated, “Bro, I wish I had my [expletive] AR, I’d start shooting rounds at [the looters].”
These decisions by the judge caused some to allege he is applying a double standard, undermining the ability to bring a vigilante to justice. Some went so far as to say that this amounts to “putting the victims on trial.”
Before addressing the specific issue of referring to the deceased as victims, it is important to first note that many of the complaints against this judge seem to stem from the incorrect assumption that defendants and prosecutors in a criminal trial should be on equal footing. The criminal justice system is designed to give the defendant numerous process-based advantages over the prosecution. For example:
- There is a high burden of proof necessary for conviction.
- Unanimous verdicts are required for a conviction.
- The government must pay for legal representation of indigent defendants.
- Newly discovered evidence may be used to overturn a conviction but not to convict an acquitted defendant.
- A convicted defendant may receive a pardon.
- The defendant can refuse to take the stand without his decision to do so being used against him.
With this understanding of the criminal justice system, the issue of referring to the deceased as victims can now be examined. This is a common issue for debate in criminal trials. The judge in the 2021 Derek Chauvin trial was also asked to bar prosecutors from referring to George Floyd as a victim, a request that was ultimately denied. Unfortunately, modern case law on the matter varies and therefore provides minimal guidance. In cases where a person has an undisputed injury, most judges maintain that the injured person can be referred to as a victim. But in cases in which the defendant disputes an injury occurred, the use of the term victim is sometimes held to be improper.
At issue is how the term victim could be unfairly prejudicial by implying wrongdoing by the defendant. Jurors may—subconsciously or otherwise—reason that, if there are victims, then they must have been victimized by someone. The term victim also implies an imperative to act in their defense. And to make matters worse, victim is an ambiguous term. Issues such as adequacy of injury, causation, imaginary victims, and culpable or consenting victims provide further difficulties as to exactly who qualifies as a victim. Even someone who injures himself could be described as a victim of growing up in an abusive home, a victim of a failing educational system, or a victim of the criminal justice system.
One potential solution is to refer to the injured party as the complaining witness. While this term is technically accurate, it is likely prejudicial against the prosecution. The term complaining witness evokes notions of childish, trivial complaints that deserve to be dismissed with minimal consideration.
In 2020, I conducted a study of whether the terms “victim” and “complaining witness” are likely to impact findings of guilt. Before this research was conducted, judges were limited to anecdotal estimates as to how using the word “victim” would affect jurors. The study found that using “victim” instead of “complaining witness” has a significant effect on juror verdicts. But the results were peculiar in that they were dependent on the gender of the allegedly injured party.
The study presented a hypothetical case summary involving either a man or a woman who allegedly punched either a man or a woman. When the alleged victim was female, referring to her as “victim” produced a guilty verdict 68.2% of the time, while referring to her as “complaining witness” produced a guilty verdict only 61.9% of the time. However, the inverse result occurred when it was a male who alleged being punched. There, referring to him as a “victim” produced a guilty verdict 54.6% of the time and 63.7% of the time when referred to as a “complaining witness.” A potential explanation for this result is that the allegations of an assault from a female were viewed as either more likely to be truthful or the notion of a female being punched by a man evoked more sympathy than a man being punched by a man. Regardless, the simple word change—with all other facts remaining constant—had a significant effect on the mock jurors.
Given the overriding principle that convicting an innocent person is worse than setting a guilty person free, the term complaining witness is likely preferable to victim even though they are both biased terms. Fortunately, there is a third, more neutral option available. The person alleging injury could simply be referred to by his or her name. This has the added benefit of clarity in cases in which there are multiple people alleging injury. For example, in the Rittenhouse case, referring to all three people who were shot as victims may lead to confusion. Future Supreme Court precedent on when the term victim is appropriate would provide clarity, create consistency, and eliminate a frequent pre-trial issue, thus contributing toward more efficient trials.