In his Washington Post article, Professor John Pfaff discusses the impact that the burden of proof has on the outcome of the Kyle Rittenhouse trial.
No one disputes that Kyle Rittenhouse, now 18 years old, shot three men and killed two of them during turbulent protests in Kenosha, Wis., that broke out after the shooting of a Black man by White police officers. And it is well known that the central issue of his trial is whether Rittenhouse has a valid self-defense claim for the three shootings. Less familiar to the public, however, is that, by and large, the outcome of Rittenhouse’s case will turn less on the specific murky facts concerning what exactly transpired on the night of Aug. 25 than on the seemingly technical but actually essential issue of the burden of proof: Does Rittenhouse have to prove he was acting in justifiable self-defense, or does the state have to disprove it?
…
That the burden of proof is on the state, not the young man wielding the gun, may seem surprising to many, but Wisconsin’s approach is the mainstream one. It may be that Virginia is the last state that requires a defendant to prove he or she was acting in self-defense, after Ohio reformed its law in 2019. State defensive-force statutes often vary widely in how they are written — with differences that can determine whether a defendant is found innocent or guilty — but putting the burden of proof on the prosecution is something nearly all of them have in common.
…
That might be hard for some people to accept. It is easy to envision an acquittal for Rittenhouse leading to calls to change defensive-force laws to make it harder for defendants like him to prevail in the future. But such changes could have unintended consequences that reformers may come to regret. After all, most self-defense cases do not look much like the one inspired by the events in Kenosha.
