GIVE 'EM THE OL' RAZZLE DAZZLE: THE ETHICS OF TRIAL ADVOCACY AND THE CASE OF KYLE RITTENHOUSE.

• Author: Lord, David A.

1. INTRODUCTION II. BACKGROUND: THE CASE OF KYLE RITTENHOUSE III. OPENING STATEMENT A. Impermissible Rhetoric and Argumentation B. Misuse of the Opening Statement to Expose the Jury to Inadmissible Evidence C. Vouching for Witnesses or Asserting Personal Opinions IV. DIRECT EXAMINATIONS A. Candor to the Court B. Witness Coaching V.CROSS-EXAMINATION A. Cross Without Foundation B. Invading the Province of the Jury C. Comments on a Defendant's Right to Remain Silent VI.CLOSING A. Use of Religious, Moral, and Other Inflammatory Rhetoric B. Attacking the Other Side VII.CONCLUSION I. INTRODUCTION

   "Don't get brazen with me!" Judge Bruce Schroeder shouted at the prosecutor as he admonished him for purported misconduct in the high-profile murder trial against Kyle Rittenhouse. (2) Our nation's attention was recently captivated by this case, which involved a seventeen-year-old defendant charged with homicide after he shot and killed two individuals during a protest against police brutality. (3) While the jury eventually acquitted Rittenhouse, the outcome of the case was initially uncertain due to alleged prosecutor misconduct at trial. (4) For example, the prosecution reportedly commented on Mr. Rittenhouse's invocation of his right to remain silent following his arrest. (5) The trial judge subsequently admonished the prosecutor, saying:

   I was astonished when you began your examination by commenting on the defendant's post-arrest silence ... that's basic law. It's been basic law in this country for 40 years, 50 years. I have no idea why you would do something like that. You know very well that an attorney can't go into these types of areas when the judge has already ruled, without asking outside the presence of the jury to do so. (6) The prosecution also attempted to question Rittenhouse about evidence that the judge had previously deemed inadmissible (7) and sought to introduce evidence in contravention of the judge's earlier ruling excluding such evidence. (8) In response to the defense attorney's motion for a mistrial, the prosecutor claimed to have acted in good faith, to which the judge responded, "When you say you were acting in good faith, I don't believe that." (9) If a mistrial with prejudice had been granted based on the prosecutor's alleged misconduct, it would have represented an astonishing outcome in a case with a great deal of public attention.

   As a prosecutor, I have tried murder cases which garnered significant amounts of press coverage and felt tremendous pressure to keep the community safe and achieve justice. I was acutely aware that every step (and misstep) I made in court could become the next day's headline or feature story on the five o'clock news. The pressure of litigation makes it tempting to blur ethics lines out of a desire to win--a desire that is natural in an adversarial system.

   Litigators are trained to be fierce advocates for their clients in the courtroom; but when a trial becomes focused on the theatrical performance of the attorneys, a dangerous line is crossed. One is reminded of the scene from the musical Chicago, where Billy Flynn, the flamboyant attorney representing accused murderess Roxie Hart, tries to comfort his client prior to her trial. (10) Flynn explains the idea of a trial by saying, "You got nothing to worry about. It's all a circus, kid. A three-ring circus. This trial--the world--all show business. But kid, you're working with a star, the biggest!" (11) Flynn then sings the catchy song "Razzle Dazzle," which explains how a trial attorney can distract the jury from the evidence if the lawyer puts on a flashy show. (12) "How can they hear the truth above the roar?" Flynn asks. (13)

   While a Broadway musical may not capture the heart of daily litigation in America, it points to a well-known danger. In its ideal form, "A criminal trial, like its civil counterpart, is a quest for the truth;" (14) but this quest for truth is undermined when the trial shifts its focus from evidence and controlling law and instead centers on emotional appeals to the jury or theatrical performances by trial counsel. A lawyer who crosses ethical constraints on trial advocacy may also commit a grave disservice to their client's interests. If a mistrial had been granted in the case of Kyle Rittenhouse, for example, the state's interests would be undermined at the hands of its own attorney. (15)

   This article will explore the dangers of trial theatrics at the four primary stages of trial: opening statement, direct examination, cross-examination, and closing argument. It will address the established constitutional and ethical norms that exist to create guardrails against the derailment of the trial through theatrics. This article then posits that only strict adherence to these norms will enable a court to fulfill its role as a facilitator for the quest for the truth. The trial of Kyle Rittenhouse will be discussed throughout this article to demonstrate how ethical issues of attorney theatrics arise and are addressed.

   This article will begin with a brief overview of the facts that led to the Rittenhouse trial. Additional information about the case, such as pretrial motions and objections, will be considered at various points throughout this piece. The article will then examine the ethics of trial advocacy during each of the four trial stages and how some of these issues arose in the case against Mr. Rittenhouse. The section on opening statements will focus on the use of impermissible rhetoric and argumentation, misuse of the opening statement to expose the jury to inadmissible evidence, and the improper use of an opening statement to vouch for the credibility of witnesses. The next section examines ethical issues in an attorney's presentation of their witnesses, as well as what an attorney must do when their witness lies on the stand, and the dangers of "coaching" a witness. Next, the article will examine ethical landmines in the cross-examination of opposing witnesses. This section includes a discussion of cross-examination based on an insufficient foundation, cross-examination that seeks to improperly invade the province of the jury, and then, specific to criminal law, cross-examination in which a prosecutor improperly comments on a defendant's invocation of their right to remain silent. The final section of this paper addresses the closing argument. The section begins with a discussion of the use of improper rhetoric and examines the misuse of moral, religious, and otherwise inflammatory language. The section closes by noting the ethical and constitutional constraints on attorneys who seek to attack the opposing side, including counsel and their witnesses. At each of these stages, an attorney's indulgence in theatrical presentation can harm the court's ability to facilitate the quest for the truth. By moving the focus of the trial away from the performance of trial counsel and back towards the evidence and controlling law, this danger can be minimized.

2. BACKGROUND: THE CASE OF KYLE RITTENHOUSE

   On August 23, 2020, Jacob Blake, a twenty-nine-year-old Black man, was shot in the back seven times by a white police officer in Kenosha, Wisconsin. (16) Mr. Blake was left partially paralyzed. (17) The shooting was captured by a neighbor through a video which was widely circulated, garnering public outrage. (18) The shooting of Mr. Blake was one of many recent high-profile incidents involving Black individuals harmed or killed during encounters with the police. (19)

   The shooting was followed by multiple nights of protest involving hundreds of demonstrators, the deployment of the Wisconsin National Guard, and the imposition of a curfew. (20) Media reports described the destruction of property during these protests, including a furniture store and downed streetlamps. (21)

   Kyle Rittenhouse, a seventeen-year-old from Illinois whose social media presence demonstrated a support of law enforcement, came with a firearm to the scene of the protests. (22) While there, Rittenhouse shot and killed two men, Joseph Rosenbaum and Anthony Huber, and injured a third man, Gaige Grosskreutz. (23) In a video interview conducted shortly before the shooting, Rittenhouse appeared in front of a boarded-up business and said:

   So people are getting injured, and our job is to protect this business.... And part of my job is to also help people. If there is somebody hurt, I'm running into harm's way. That's why I have my rifle--because I can protect myself obviously. But I also have my med kit. (24) Videos posted to social media showed shots ringing out in a car lot before a man was discovered with a gunshot wound to the head. (25) Rittenhouse was heard saying, "I just killed somebody" as he jogged away from the scene.

   Rittenhouse was ultimately charged with seven offenses: first-degree homicide, use of a dangerous weapon; first-degree recklessly endangering safety, use of a weapon; first-degree intentional homicide, use of a dangerous weapon; attempted first-degree intentional homicide, use of a dangerous weapon; first-degree recklessly endangering safety, use of a dangerous weapon; possession of a dangerous weapon by a person under 18; and a curfew violation. (26) The curfew violation and underage possession of a firearm charges were dropped by the judge during the course of the trial and were not considered by the jury. (27) As to the other charges, Rittenhouse claimed that he acted in self-defense. (28)

3. OPENING STATEMENT

   An attorney's opening statement sets the tone for a trial and is the first meaningful opportunity to preview the case for the jury. (29) Naturally, both sides want to maximize the impact of their opening statements on the decision maker's disposition towards the case. This desire gives rise to three specific temptations which may present ethical problems in the court room. The first of these is the use of improper rhetoric--in other words, the use of an impermissible argument or inflammatory...