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Jury Instructions Begin In Kyle Rittenhouse Trial. Aired 11- 11:30a ET

Aired November 15, 2021 - 11:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[11:00:00]

JUDGE BRUCE SCHROEDER, KENOSHA COUNTY CIRCUIT COURT: Second, that the defendant caused the death by criminally reckless conduct, criminally reckless conduct means the conduct created a risk of death or great bodily harm to another person, and that the risk of death or great bodily harm was unreasonable and substantial, and that the defendant was aware that his conduct created the unreasonable and substantial risk of death or great bodily harm.

The circumstances and the -- circumstances of the defendant's conduct showed utter disregard for human life in determining whether the circumstances of the conduct showed utter disregard for human life. You should consider these factors, what the defendant was doing, why he was engaged in that conduct, how dangerous the conduct was, how obvious was the danger, whether the conduct showed any regard for human life and all other facts and circumstances relating to the conduct.

If as to the first count, you are satisfied beyond a reasonable doubt that both elements of this crime have been proved, and that the defendant was not acting lawfully in self-defense, as I have instructed you on the law of self-defense, then you should find the defendant guilty of reckless homicide of the first degree as charged in the information. If you are not so satisfied, then you must find the defendant not guilty on this count.

Counts two and three have the information accused the defendant of the crimes of recklessly endangering safety, although the elements of each of these charges are identical, the rules of self-defense which apply to them or not.

The second count of the information charges that at the same time and place the defendant recklessly endanger the safety of Richard McGinnis under circumstances, which show utter disregard for human life. The third count of the information charges that at the same time in place, the defendant recklessly endanger the safety of an unknown male under circumstances would show utter disregard for human life.

First Degree reckless endangerment as defined in the Criminal Code is committed by one who recklessly endangers the safety of another human being, under circumstances which show utter disregard for human life. Before you may find the defendant guilty of reckless endangerment of the first degree, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.

First, that the defendant recklessly, excuse me, first, that the defendant endanger the safety of another human being, and the risk of death or great bodily harm was unreasonable and substantial, and the defendant was aware that his conduct created the unreasonable and substantial risk of death or great bodily harm. Great bodily harm means injury which creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member organ or other serious bodily injury.

The third element is that the circumstances of the defendant's conduct showed utter disregard for human life. Again in determining the -- whether the circumstances of the conduct showed utter disregard for human life, you should consider these factors, what the defendant was doing, why the defendant was engaged in that conduct, how dangerous was the conduct, how obvious was the danger, whether the conduct showed any regard for human life and all other facts and circumstances related to the conduct.

[11:07:08]

When I was instructing a moment ago on reckless homicide, I indicated there were two elements, there are actually three. I did read all of the ingredients. But I'm just going to reread a portion of that instruction. So it's clear that there are three elements to that crime. And I also use the word both of the elements. And it's actually three. So I apologize for that mistake, and let's just stop with the reckless endangerment for a moment and return to the reckless homicide.

In the elements of reckless homicide are -- that the defendant caused the death of another and he did so by criminally reckless conduct. And the third element, which I read as part of the second is that the circumstances of the defendants conduct showed utter disregard for human life. And what tipped me off is other than causing death, the reckless endangerment which I've been reading now has those same three elements.

So, utter disregard for human life is one of the elements of the -- of both crimes. And in order to convict on the first count, you must find the presence of all three of the elements of first degree reckless homicide, and also find the unreasonable doubt that the defendant was not privileged under the law of self-defense. Is that clear? Thanks. Thank you very much.

Getting back to the reckless endangerment charge with respect to Mr. McGinnis, there is evidence in this case that the defendant was acting in self-defense as to Joseph Rosenbaum. The fact that the law may have allowed the defendant to use force in self-defense as to Joseph Rosenbaum does not necessarily mean that recklessly endangering the safety of Richard McGinnis was lawful.

You must consider the law of self-defense in deciding whether the defendant's conduct as to Richard McGinnis was criminally reckless conduct, which showed utter disregard for human life, but the defendant does not have the privilege of self-defense with respect to Mr. McGinnis. So the defendant would enjoy a privilege of self-defense with respect to Mr. Rosenbaum, if you find the factual ingredients of that. But that doesn't mean that what he -- the fact that he -- if he endanger the safety of Mr. McGinnis was privileged under the law of self-defense because Mr. McGinnis was not attacking him.

[11:10:06]

However, you must consider the law of self-defense in deciding whether the defendant's conduct as to Richard McGinnis was criminally reckless conduct which showed utter disregard for human life. But he does not have a privilege of self-defenses to Richard McGinnis.

The law of self-defense allows the defendant to threaten or intentionally use force against another only if the defendant believed that there was an actual or imminent interference with the defendant's person, that he believed that the amount of force he used or threatened was to use was necessary to prevent or terminate the interference and that his beliefs were reasonable.

The defendant may intentionally use force which is intended to or likely to cause death or great bodily harm only if the defendant reasonably believe that the force used was necessary to prevent imminent death, or great bodily injury to himself. A belief may read may be reasonable, even though mistaken in determining whether the defendant's believes were reasonable. The standard is when a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances existing at the time of the alleged offense.

The reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of his acts, and not from the viewpoint of the jury now. You should consider the evidence relating to self-defense along with all the other evidence in the case and deciding whether the defendant's conduct created an unreasonable risk of death or great bodily harm to Richard McGinnis. If the defendant was acting lawfully in self-defense with respect to Joseph Rosenbaum, his conduct did not create an unreasonable risk to another.

The burden is on the state to prove by -- beyond the, excuse me, this -- the burden is on the state to prove beyond a reasonable doubt that the defendant did not act lawfully in self-defense. And you must be satisfied beyond a reasonable doubt from all of the evidence in this case, that the risk was unreasonable. You should consider the evidence relating to self-defense and deciding whether the circumstances of the defendant's conduct showed utter disregard for human life.

The burden is on the state to prove beyond a reasonable doubt that the defendant did not act lawfully and self-defense. And you must be satisfied beyond a reasonable doubt from all of the evidence in this case, that the circumstances of the defendant's conduct showed utter disregard for human life.

If as to each of these counts, you are satisfied beyond a reasonable doubt that the elements have been proved and that the defendant was not acting lawfully in self-defense, you should find the defendant guilty of reckless homicide of the first degree. If you're not so satisfied, then you must find the defendant not guilty.

The fourth counter the information charges that at the same time in place, the defendant caused the death of another human being Anthony M. Huber, with intent to kill that person. This is a charge of intentional homicide of the first degree and you must consider first, whether the defendant is guilty of that offence.

If you are not satisfied the defendant is guilty of first degree intentional homicide, you may consider whether or not the defendant is guilty of second degree intentional homicide, or first degree reckless homicide which are less serious degrees of criminal homicide. The crimes referred to as first and second degree intentional homicide and first degree reckless homicide are different degrees of homicide.

Homicide is the taking of the life of another human being. The degree of homicide by -- defined by law depends on the facts and circumstances of each particular case. While the law separates homicides and a different types of degrees, there are certain elements which are common to each crime. Both intentional and reckless homicide require that the defendant have caused the death of another first and second degree intentional homicide require the state to prove the additional fact that the defendant have acted with the intent to kill.

First degree reckless homicide requires that the defendant acted recklessly and that the circumstances of his conduct showed utter disregard for human life. It will also be important for you to consider the privilege of self-defense in deciding which crime if any, the defendant has committed. Self-defense, excuse me, the Criminal Code of Wisconsin provides that a person has privilege to intentionally use force against another for the purpose of preventing or terminating what he reasonably believes to be an unlawful interference with his own person by the other person.

[11:15:08]

However, he may intentionally use only such force, as he reasonably believes is necessary to prevent or terminate the interference, he may not intentionally use force which is intended or likely to cause death, unless he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.

As applied to this case, the effect of the law of self-defense is the defendant is not guilty of any homicide offence. If the defendant reasonably believed that he was preventing or terminating an unlawful interference with his own person, or reasonably believed the force used by him, excuse me, and reasonably believed that the force used by him was necessary to prevent imminent death, or great bodily harm for himself.

The defendant is guilty of second degree intentional homicide, if he caused the death of another human being with intent to kill, and actually believe the force used was necessary to prevent imminent death or great bodily harm to himself but the belief or the amount of force use was unreasonable. The defendant is guilty of first degree intentional homicide if he intended to cause the death of another with the intent to kill, and did not actually believe that the force use was necessary to prevent imminent death or great bodily harm to himself.

The defendant is guilty of first degree reckless homicide if the defendant caused the death of another by criminally reckless conduct, and the circumstances of the conduct showed utter disregard for human life. You will be asked to consider the privilege of self-defense of deciding whether the elements of first degree reckless homicide are present.

Because the law provides that it is the state's burden to prove all facts necessary to constitute a crime beyond a reasonable doubt, you will not be asked to make a separate finding on whether the defendant acted in self-defense. Instead, you will be asked to determine whether the state has established the necessary facts to justify a finding of guilty for first or second degree intentional homicide or for first degree reckless homicide.

If the state does not satisfy you that those facts are established by the evidence, you will be instructed to find the defendant not guilty. The facts necessary to constitute each crime will now be defined for you in greater detail. First degree intentional homicide is defined in the Criminal Code is committed by one who causes the death of another human being with the intent to kill that person or another.

In this case, first degree intentional homicide also requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself. Before you may find the defendant guilty of first degree intentional homicide, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present.

First, that the defendant caused the death of another cause means that his act was a substantial factor in producing the death. Second, that the defendant acted with the intent to kill the other. Third, that the defendant did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself.

The third element of the first degree sexual -- intentional homicide requires that the defendant did not actually believe the force used was necessary to prevent imminent death or great bodily harm to himself. This requires the state to prove either that the defendant did not actually believed he was in imminent danger of death or great bodily harm, or that the defendant did not actually believe that the force used was necessary to prevent imminent danger of death or great bodily harm to himself.

When first degree intentional homicide is considered the reasonableness of the defendants conduct, excuse me, when first degree intentional homicide is considered, the reasonableness of the defendant's belief is not an issue. You are to be concerned only with what the defendant actually believed. Whether those beliefs are reasonable is important only, if you later consider whether the defendant is guilty of second degree intentional homicide.

If after the fourth count, you are satisfied beyond a reasonable doubt that the defendant caused the death of another with the intent to kill that this is Mr. Huber, with the intent to kill, and that the defendant did not actually believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of first degree intentional homicide.

If you are not so satisfied then you must not find the defendant guilty of first degree intentional homicide and must consider whether the defendant is guilty of second degree intentional homicide as defined in the Criminal Code, which is a lesser included offense of the first degree intentional homicide.

[11:20:24]

There are hierarchies of cases in the law. Typically, first degree is the highest offense, then, lesser included are crimes that are of the same nature with many common elements, but some differences. So, there's a sequence of verdicts that are going to be submitted to you with respect to the discount.

And that's what we're going through at this time. So we'll take on now the -- but let me advise you, you should make every reasonable effort to agree unanimously on the charge of intentional homicide of the first degree before considering the offense of second degree intentional homicide.

However, if after a full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of first degree intentional homicide, you should consider whether the defendant is guilty of second degree intentional homicide. Before you may find the defendant guilty of intentional homicide of the second degree, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements of this crime were present.

First, that the defendant caused the death of another, second that he acted with intent to kill another human being. And third, that he did not reasonably believed that he was preventing or terminating an unlawful interference with his own person, or did not reasonably believe that the force used was necessary to prevent imminent death, or great bodily harm to himself.

You have already been instructed on the definitions of causing death and with intent to kill. These same definitions apply to your consideration of second degree intentional homicide. The third element of secondary intentional homicide requires that the defendant did not reasonably believe that he was preventing or terminating an unlawful affair -- interference with his own person or did not reasonably believe that the force which was used was necessary to prevent imminent death or great bodily harm to himself.

This requires that the state approved one of the following, first, that a reasonable person in the circumstances of the defendant would not have believed that he was preventing or terminating an unlawful interference with his own person or that a reasonable person in the circumstances of the defendant would not have believed he was in danger of imminent death or great bodily harm, or that the reasonable person in the circumstances of the defendant would not have believed that the amount of force used was necessary to prevent imminent death or great bodily harm to himself.

The reasonableness of the defendant's beliefs must be determined from the standpoint of the defendant at the time of his acts, and not from the standpoint of the jury -- viewpoint of the jury. Now, the standard is what a person of ordinary intelligence and prudence would have believed in the position of the defendant under the circumstances existing at the time of the alleged offense.

The offense to the fourth count, you were satisfied beyond a reasonable doubt that the defendant caused the death of another human being with intent to kill, and did not reasonably believe that he was preventing or terminating an unlawful interference with his own person, or did not reasonably believe that the force used was necessary to prevent imminent death or great bodily harm to himself, you should find the defendant guilty of second degree intentional homicide.

If you are not so satisfied, then you must not find the defendant guilty of second degree intentional homicide. And you should consider whether the defendant is guilty of first degree reckless homicide as defined in the Criminal Code, which is also a lesser included offense of first degree intentional homicide.

Again, you should make every reasonable effort to agree unanimously on the charge of second degree intentional homicide before considering the offense of first degree reckless homicide. However, if after a full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of second degree intentional homicide, you should consider whether the defendant is guilty of first degree reckless homicide, which is a crime committed by one who recklessly causes the death of another human being under circumstances which show utter disregard for human life.

[11:25:02]

Before the defendant may be found guilty of reckless homicide of the first degree, state must prove by evidence which satisfies you beyond a reasonable doubt that the following three elements were present. First, that the defendant caused the death of another human being, cause means that the defendant's act was a substantial factor in producing the death.

Second, that the defendant caused the death by criminally reckless conduct, which means the conduct created a risk of death or great bodily harm to another person, and the risk of death or great bodily harm was unreasonable and substantial, and the defendant was aware that his conduct created the unreasonable and substantial risk of death or great bodily harm.

You should also -- you should consider the evidence relating to self- defense in deciding whether the defendant's conduct created the unreasonable risk to another. If the defendant was acting lawfully and self-defense his conducted not create an unreasonable risk to another, the burden is on the state to establish beyond a reasonable doubt that the defendant did not act lawfully in self-defense. And you must be satisfied beyond a reasonable doubt from all of the evidence in this case, that the risk was unreasonable.

The third element is that the circumstances of the defendants conduct showed utter disregard for human life. Again, in determining whether the circumstances of the conduct showed utter disregard for human life, you should consider these factors, what the defendant was doing, why he was doing it, how dangerous the conduct was, the obviousness of the danger whether the conduct showed any regard for life and all other facts and circumstances relating to the conduct. You should consider the evidence relating to self-defense and deciding whether the circumstances of the defendant's conduct showed utter disregard for human life.

The burden is on the state to prove by evidence, which satisfies you beyond a reasonable doubt that the defendant did not act lawfully in self-defense. And you must be satisfied beyond a reasonable doubt from all of the evidence in the case. But the circumstances of the defendant's conduct showed utter disregard for human life. Consider also the defendants conduct after the death so as, excuse me, consider also the defendant's conduct after the death to the extent that it helps you decide whether or not the circumstances showed utter disregard for human life at the time that the death occurred.

If as to the fourth count, you were satisfied beyond a reasonable doubt that the defendant caused the death of another human being by criminally reckless conduct, and that the circumstances of the conduct shoed utter disregard for human life and that the defendant's conduct was not privileged under the law of self-defense, then you should find the defendant guilty of reckless homicide of the first degree as submitted. If you are not so satisfied, then you must find the defendant not guilty on the fourth count.

The fifth count of the information charges that at the same time in place the defendant attempted to cause the death of Gaige Grosskreutz with intent to kill that person, a crime of attempted first degree intentional homicide. With respect to this charge, you must first consider whether the defendant is guilty of that offence. If you are not satisfied that the defendant is guilty of attempted first degree intentional homicide, you must consider whether or not he is guilty of attempted second degree intentional homicide, or first degree reckless endangerment which are less serious degrees of criminal homicide.

The crimes referred to as attempted first and second degree intentional homicide are different degrees of homicide, again, that is the taking of the life of a human being. The degree of attempted homicide is defined by law, depending on the facts and circumstances of each particular case.

While the law separates intentional homicides into two degrees, there are certain elements that are common to each both attempted and second degree intent -- both attempted first and second degree intentional homicide, require that the defendant have intended to kill another that he did acts towards the commission of that crime which indicate unequivocally under all the circumstances, that he had formed that intent and would have caused the death of the other except for the intervention of another person or some extraneous factors. It will also be important for you to consider the privilege of self-defense in deciding which crime if any, the defendant has committed.

[11:29:39]

The criminal court of Wisconsin provides that a person is intent is privilege to intentionally use force against another under the following circumstances, forces used for the purpose of preventing or inter -- or terminating what the person reasonably believes to be an unlawful interference with his own person or by the other. And he uses only that amount of force which he reasonably believes is necessary to prevent or terminate the interference.