Evidence and the Gatekeepers
Evidence and the Gatekeepers
What, why, and how evidence is heard by juries
Dear Readers,
The last few weeks have been so busy, especially in the world of law. The U.S. Supreme Court (SCOTUS) heard arguments on two of the biggest social issues of our time: gun rights
and women’s right to make decisions regarding her own body. The civil case against the Unite the Right organizers for the murder and mayhem they caused during a 2017 Black Lives Matter protest in Charlottesville, Virginia. Jury selection and trials began for Ghislaine Maxwell, the alleged collaborator of Jeffrey Epstein, and Kim Potter, the police officer who shot and killed Daunte Wright. And, importantly, verdicts were handed down in the McMichaels’ and Rittenhouse trials.While there is so much to say about each and every one of these cases, I focus today on the McMichael and Rittenhouse trials and how evidence played a role in the different outcomes. The rules of evidence are critical to the outcome of every trial, but what they are, how they work, how they are interpreted, and how they are used are not often discussed when the verdicts of (in)famous trials are discussed in the media.
Laying the Foundation
Before I get to evidence, it is important to note that systemic racism and white supremacy are at the heart of both of these cases, from conduct to verdict. (I know these terms may trigger discomfort, panic, or anger but please keep reading and breathing. There are resources in the footnotes.). White supremacy is
an historically based, institutionally perpetuated system of exploitation and oppression of continents, nations, and peoples of color by white peoples and nations of the European continent, for the purpose of maintaining and defending a system of wealth, power, and privilege.
Systemic racism is
an infrastructure of rulings, ordinances or statutes promulgated by a sovereign government or authoritative entity, whereas such ordinances and statutes entitles one ethnic group in a society certain rights and privileges, while denying other groups in that society these same rights and privileges because of long-established cultural prejudices, religious prejudices, fears, myths, and Xenophobia’s held by the entitled group.
These socio-political structures and their proponents enculturated the McMichaels and Rittenhouse to believe they had the right to patrol people of color and deputize themselves as the police, jury, judge, and executioner. White supremacy allowed them to take the lives of a black man and people who appeared to be allies of people of color, believing (reasonably given our nation’s history) that they would face few or no repercussions. White supremacy and structural racism allowed Rittenhouse to engage with law enforcement and walk away alive, despite being heavily armed and having shot three people.
White supremacy impacted the ways in which juries were selected and the decisions judges made in each case. And the list goes on.
To engage with evidence, or anything in the criminal legal system for that matter, without naming racism and white supremacy is to perpetuate and further contribute to the profound harm done by these pervasive, insidious systems and structures.
What is Evidence?
Evidence (the way we use it in conversation) is “something which shows that something else exists or is true.”
In law, evidence is defined much more narrowly as “something legally submitted in court . . . to ascertain the truth of a matter.” Based on these two definitions, you can see that our usual use of the word “evidence” encompasses all things that show “something is true,” whereas the legal definition is limited only to that which is “legally submitted in court.” Not all “evidence” becomes evidence in court. (More on that below).There are two types of evidence: direct and circumstantial.
Direct evidence usually is that which speaks for itself: eyewitness accounts, a confession, or a weapon.
Circumstantial evidence usually is that which suggests a fact by implication or inference: the appearance of the scene of a crime, testimony that suggests a connection or link with a crime, physical evidence that suggests criminal activity.
For a good, quick read about the difference, check out my friend David Ellison’s blog post here.
Of the 2% of federal criminal cases and approximately 3% of state criminal cases that actually go to trial
(yes, you read that statistic correctly!) circumstantial evidence is most commonly used, often because direct evidence is hard to come by.Evidence is central to every trial because it is the way in which the attorneys attempt to prove (or disprove) the facts of the case in order to persuade the jury or the judge to issue a verdict in their favor. In criminal cases, prosecutors (the State or Federal Government) must provide enough compelling evidence for the jury to find guilt beyond a reasonable doubt.
Some of the Types of Evidence at Issue in the McMichaels’ and Rittenhouse Trials
Video evidence: There were videos of both the shootings themselves, as well as the incidents leading up to and following the shootings
Witness testimony: People who were present during the lead up to the murders and/or at the moment of the shooting, or people who know one or both of the parties
Law enforcement testimony
Social media posts and text messages: Before the shootings, the McMichaels and Rittenhouse had posted things online or texted others about their beliefs and their intent to use guns to effect some kind of “law and order”
Mental health history of victims, survivors, and the people who caused the harm
Social and historical context testimony: Explaining what led up to the events and what had been happening in the community around the events
Expert testimony: For example, coroners or medical examiners who describe cause of death and/or nature of injury
The Rules of Evidence
As consumers of the media, we often see videos, social media posts, stories from neighbors, friends, and colleagues, criminal histories, and mental health histories of the people being charged with crimes. It is easy to assume that such “evidence” would also be part of any criminal trial that follows and the jury would have the chance to see it. When the verdict announced goes against the publicly viewed, media-curated “evidence,” we ask: How could the jury decide this way? Why weren’t they persuaded by all of this “evidence”?
But, the materials we see in the news are often not admitted to the trial for jury to see. As I wrote above, the judge can decide that it is not relevant or unfairly prejudicial or against the rules. Looking at the Rittenhouse and McMichael trials, we can see that the judges made essential evidentiary determinations that, in all likelihood, impacted the outcomes.
Because of the important role evidence plays in every trial, there are rules that govern what evidence is allowed to be heard in court (admissible) and what evidence must be excluded from the trial (inadmissible).
Rules of evidence are codified by statute, typically drafted by a judiciary committee of some kind and enacted by Congress or the state legislature. The rules are amended regularly as different legal, social, scientific and political needs/issues arise. As an example, check out the 2019 proposed changes to the Federal Rules of Evidence by the House Judiciary Committee.
Federal courts adhere to the Federal Rules of Evidence and state courts adhere to the rules of evidence drafted and enacted by their own state legislatures.
All of the rules and the application of the rules must align with the federal constitution, as well as, in state cases, the requirements of the state’s constitution. Though, as we have discussed repeatedly, interpretation of the constitutions are ever-shifting and changing, so too are the rules of evidence.
The primary focus of all rules of evidence is relevance.
Relevance in a criminal case is very specific. To state it simply, for evidence to be relevant, it must help to prove, disprove, bolster, or undercut specific elements of the alleged crime. The rules also include other reasons not to allow in certain evidence, such as it would be unfairly prejudicial to one party or the other or could confuse the jury.How do the rules of evidence work?
This is where the rubber meets the road. Rules in law are not hard and fast; rather they are to be argued, persuading the judge to interpret the rules in the way that benefits their clients and using legal precedent and/or strong arguments urging the court to break from past precedent to support their claims.
Typically, and this is true of both the McMichaels’ and the Rittenhouse trials, before jury selection and trial, the lawyers write motions in limine (or motions to suppress), which are a “pretrial motion[s] asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.”
Both the prosecution and the defense present arguments (oral or written) as to relevance and related issues to the judge, then the judge determines whether the evidence is relevant and admissible, or irrelevant/otherwise inadmissible, thus allowing in or excluding that evidence to be heard by the jury.
All of these hearings are done outside of the hearing of the jury. They, generally, have no idea that the other evidence exists, unless or until it makes its way into the trial (see Rittenhouse example below).
The common analogy used in the legal profession is: “You can’t unring the bell.” The jury cannot be expected to see certain evidence and then be asked to forget about it afterward. Therefore, these evidentiary issues are argued and decided pretrial, before a jury is seated, or, if need be during trial, in a hearing away from the jury.
What happened in the McMichaels’ and Rittenhouse trials?
Rittenhouse
A lot of the media reports (including social media) that I saw around the Kyle Rittenhouse trial was sounding off about texts between Rittenhouse and his mother, stuff he said to friends about going to shoot people up, and other such material.
Yet, in the Rittenhouse trial, the Wisconsin judge ruled to omit much of that information, including three pieces of prior act evidence, which is exactly what it sounds like, that the prosecutor tried to have admitted. The Wisconsin Rules of Evidence state that evidence of prior “crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith.”
While lawyers are often able to argue their way around this by finding another permissible reason to use the evidence, the judge in the Rittenhouse trial was not swayed. The judge ruled to exclude the following:
One video shows Rittenhouse striking a girl who was fighting with his sister in June 2020. One from Aug. 15, 2020 shows him and a friend watching from inside a car as people — whom Rittenhouse believes are looters — leave a CVS store across the street, while Rittenhouse says he wished he had his rifle so he could shoot at them. The still photos are of Rittenhouse posing with members of the Proud Boys at a Racine County tavern after a hearing in his case in January.
Additionally, the judge ruled that the prosecutor could not refer to the people Kyle Rittenhouse shot and killed as “victims” because that was prejudicial, though the defense could refer to the men Rittenhouse shot as “looters” and “rioters” if they could justify such labels.
The judge did rule against the defense when it asked the court to allow in evidence about Mr. Rosenbaum’s, one of the men killed, mental health history because Mr. Rittenhouse would not have know that at the time of their interaction.
At the trial, then, the jury saw video of Rittenhouse being chased by different individuals, falling down, being hit over the head with a skateboard, etc.
Further, during the trial, the prosecutor asked Mr. Rosenbaum’s fiancé if he had taken his mental health medication the day of the shooting. When that happened, the prosecutor “opened the door” for the defense to pursue the line of questioning that the judge had previously disallowed. The defense was then able to bring in testimony about Mr. Rosenbaum’s mental health, presenting him as a frightening and dangerous person.Not being in the courtroom and reviewing/listening to arguments, I won’t comment as to the validity of these various decisions (though I find them all quite questionable), but instead, want to point out how impactful they are.
Because the defense had put forward a self-defense theory to negate the intentional murder charges, the primary narrow question before the jury was whether Rittenhouse reasonably feared for his life to justify his shooting three people. Without the context of the inadmissible evidence and with the context of videos of Mr. Rittenhouse being chased and Mr. Rosenbaum’s alleged dangerous and erratic behavior, the jury was presented a very particular point-of-view regarding each of the shootings.
Of course there was more evidence presented than what I have outlined above, but I think it’s clear: evidence—what was admitted and what was omitted—deeply impacted how the jury deliberated and rendered its verdict. Put yourself in the jury’s shoes and ask how your position might be changed if you weren’t following the media coverage of the case and were shown this narrow slice of evidence.
McMichael
In this case, the video footage taken by William Bryan of the three men corralling, threatening, and then shooting Ahmaud Arbery was a central piece of evidence.
Additionally, the judge in this case admitted testimony and video of the McMichaels prior conduct, in contrast to the judge in the Rittenhouse trial, the judge. The judge allowed “[j]urors [to be] shown bodycam footage of the armed McMichaels searching for a suspected burglar at Mr English's property 12 days before [Mr. Arbery] was killed.”
Along with this footage, the judge allowed other neighbors to testify that there had been no break-ins or damaged property in the area, nor had they asked the McMichaels to guard or patrol the neighborhood.
Finally, the judge allowed a police investigator to testify as to Greg McMichael’s comments while being interrogated. "‘He was trapped like a rat,’ the elder McMichael told the detective a few hours after the deadly pursuit, according to an interview transcript read aloud in court.”
Jurors in the Georgia court were provided much more contextual information despite also being presented with a self-defense question. With the evidence presented, the jury convicted all three men for murder. They likely did not find the self-defense argument and related evidence compelling.
The sampling of evidence discussed above demonstrate the stark differences between the evidence admitted in the Rittenhouse trial and the evidence admitted in the McMichaels trial. These decisions centered around the two very different judges, who ran the trials very differently and took almost polar opposite positions on the admission of evidence.
In conclusion
Evidence matters. Legislatures make the rules of evidence. Courts interpret the rules. And, the gatekeepers of evidence, the judges, hold immense power and have lots of leeway as to how they interpret the rules. The outcomes of these decisions, quite literally, effect life and death (or liberty). Each of these decisions and every one of these rules are made, changed, and interpreted by humans, with all of their (and our!) bias, prejudice, and worldviews.
Thank you for reading!
Respectfully,
Amy
The Life of a Criminal Case
New York State Rifle & Pistol Association Inc. v. Bruen, arguments heard on Nov. 3, 2021. You can listen the arguments here: https://www.oyez.org/cases/2021/20-843.
Dobbs v. Jackson Women's Health Organization, arguments heard on Dec. 1, 2021. Listen to them here: https://www.oyez.org/cases/2021/19-1392. For a wonderful discussion about the arguments from the perspective of the Jackson Women’s Health Organization’s lawyer, listen to this episode of Amicus with Dahlia Lithwick: https://slate.com/podcasts/amicus/2021/12/julie-rikelman-dobbs-arguments-analysis. For an insightful conversation about Whole Woman’s Health v. Jackson, where SCOTUS decided not to stay the Texas law, SB8, “that allows anyone to sue anyone who even intends to help someone get an abortion after 6 weeks of pregnancy,” check out Five Four Pod’s episode here: https://www.fivefourpod.com/episodes/sb8--whole-woman%E2%80%99s-health-v-jackson/.
For a good explanation of the civil case, check out Christopher Miller’s BuzzFeed summary: https://www.buzzfeednews.com/article/christopherm51/unite-the-right-charlottesville-verdict.
Please read in full “What is White Supremacy?” by Elizabeth “Betita” Martinez, available at: https://www.pittsburghartscouncil.org/storage/documents/ProfDev/what-is-white-supremacy.pdf.
To learn more about systemic racism, check out: https://www.benjerry.com/whats-new/2016/systemic-racism-is-real.
For more on both of these topics, take a look at the catalog of Ibram X. Kendi’s writing for The Atlantic: https://www.theatlantic.com/author/ibram-x-kendi/.
Muslim D. Shahid, “Systemic Racism vs. Institutional Racism,” Medium (Nov. 18, 2020), available: https://muslimshahid-52222.medium.com/systemic-racism-vs-institutional-racism-432973cba200.
Photo credited in Bruce Vielmetti, “Kenosha County judge denies prosecutor's request to use evidence of Kyle Rittenhouse's mindset in trial,” Milwaukee Journal Sentinel (Sept. 17, 2021), available at: https://www.jsonline.com/story/news/crime/2021/09/17/kenosha-county-judge-denies-series-motions-kyle-rittenhouse-case/8380214002/
Merriam-Webster at: https://www.merriam-webster.com/dictionary/evidence.
USLegal.com: https://definitions.uslegal.com/e/evidence/
Ibid.
Yes, you read that correctly. Somewhere around 90% of cases are resolved by plea bargain, with the remaining 4 to 6% of cases being dismissed. See John Gramlich, “Only 2% of federal criminal defendants go to trial, and most who do are found guilty,” Pew (June 11, 2019), available at:
https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/ and “The Truth About Trials,” The Marshall Project, available at: https://www.themarshallproject.org/2020/11/04/the-truth-about-trials
“Rule 401,” Legal Information Institute, available at: https://www.law.cornell.edu/rules/fre/rule_401
Rule 401 states:
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
“Rule 403,” Legal Information Institute, available at: https://www.law.cornell.edu/rules/fre/rule_403
However, Rule 403 (the bane of many law students’ existence) gives the judge permission to
exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
“Motion in limine,” Legal Information Institute, available at: https://www.law.cornell.edu/wex/motion_in_limine.
Bruce Vielmetti, “Kenosha County judge denies prosecutor's request to use evidence of Kyle Rittenhouse's mindset in trial,” Milwaukee Journal Sentinel (Sept. 17, 2021), available at: https://www.jsonline.com/story/news/crime/2021/09/17/kenosha-county-judge-denies-series-motions-kyle-rittenhouse-case/8380214002/
Maya Yang, “Men shot by Kyle Rittenhouse cannot be called ‘victims’ in court, judge rules,” The Guardian (Oct. 27, 2021); available at: https://www.theguardian.com/us-news/2021/oct/27/kyle-rittenhouse-shooting-trial#; Paul Butler, “Opinion: Are the men Kyle Rittenhouse killed victims? Not according to the judge.,” Washington Post (Oct. 29, 2021), available at: https://www.washingtonpost.com/opinions/2021/10/29/are-men-kyle-rittenhouse-killed-victims-not-according-judge/.
Sophie Kasakove and Giulia Heyward, “In the Arbery killing trial, video evidence once again played a crucial role,” The New York Times (Nov. 24, 2021), available at: https://www.nytimes.com/2021/11/24/us/arbery-video-evidence-murder-trial.html
Sara Burnett, “Rittenhouse trial arguments worry mental health advocates,” AP News(Nov. 18, 2021), available at: https://apnews.com/article/kyle-rittenhouse-health-shootings-homicide-mental-health-df26c765f34bea82aaf0a46b3f30a1ee
Sophie Kasakove and Giulia Heyward, “In the Arbery killing trial, video evidence once again played a crucial role,” The New York Times (Nov. 24, 2021), available at: https://www.nytimes.com/2021/11/24/us/arbery-video-evidence-murder-trial.html
“Ahmaud Arbery: What you need to know about the case,” BBC News (Nov. 22, 2021), available at: https://www.bbc.com/news/world-us-canada-52623151
Ibid
“Factbox: Highlights of the Ahmaud Arbery murder trial,” Reuters (Nov. 24, 2021), available at: https://www.reuters.com/world/us/highlights-arbery-murder-trial-2021-11-19/