A Kyle Rittenhouse Mistrial is Unlikely. Here's Why

Tempers flared on Wednesday during the murder trial of Kyle Rittenhouse, with the judge becoming irate at the prosecution's conduct, and the defense asking for a mistrial.

During cross-examination of the 18-year-old, Assistant District Attorney Thomas Binger felt the wrath of Kenosha County Circuit Judge Bruce Schroeder over his line of questioning towards Rittenhouse.

Schroeder said he was "astonished" that Binger commented on Rittenhouse not publicly speaking out about the case following his arrest, despite this being a basic protected right in order for defendants not to incriminate themselves.

"This is a grave constitutional violation for you to talk about the defendant's silence," Judge Schroeder said. "You're right on the borderline. You may be over. But it better stop."

"That's basic law. It's been basic law in this country for 40 years, 50 years," he added. "I have no idea why you would do something like that. I don't know what you're up to."

Binger was also reprehended by the judge after he asked Rittenhouse about a video recorded two weeks before the shootings in Kenosha in August 2020. The video shows Rittenhouse saying he wish he had a rifle so he could shoot two people exiting a pharmacy because he thought they were shoplifters.

Schroeder had already ruled the video inadmissible evidence in the trial and yelled at Binger after sending the jury out of the court.

"When you say you were acting in good faith, I don't believe you," the judge said.

"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. So don't give me that!"

"I don't see the similarity [between the two incidents]. I said it couldn't come in and it isn't coming in, no matter what you think."

The defense then called for a mistrial with prejudice, which if granted would mean that Rittenhouse could not be tried again.

The judge heard the request and allowed the trial to continue. However, Schroeder could issue a ruling at any time, and such motions are usually granted after both sides have ended their arguments.

Following Wednesday's proceedings, a number of legal experts suggested that it is unlikely that the judge will declare a mistrial in the highly publicized case, and instead will allow the jury to decide on Rittenhouse's fate.

Speaking to the Milwaukee Journal Sentinel, Michael O'Hear, professor of criminal law at Marquette Law School, said in order for the mistrial motion to be approved, the judge would have to prove that the prosecutor purposely sought to have the case thrown out, as suggested by the defense.

"The law is straightforward enough but the application of the law presents some difficult problems," O'Hear said.

"It requires the judge to try to figure out what were the prosecutor's motives and did the prosecutor really go over that line into this kind of egregious conduct."

Keith Findley, a former public defender and University of Wisconsin law professor, told USA Today it would be "unusual" for Schroeder to grant a mistrial as the judge would need to prove that Binger prevented Rittenhouse from receiving a fair trial and that his conduct was "outrageous, calculated and provoked a mistrial."

Speaking to the Associated Press, Daniel Adams, a defense attorney and former Milwaukee County assistant prosecutor, said he could not remember a time where a judge has granted a mistrial with prejudice motion, and therefore he is unlikely to grant one now.

However, he did accuse Binger of deliberately attempting to try to show the jury the other video of Rittenhouse stating he wished he shot two men in order to strengthen his case, despite knowing he couldn't.

"What Binger did was deliberate," Adams said. "He didn't ask for permission.

"He thought he could slip it in and ask for forgiveness. He knew better. He tried to pull a fast one and he was called on it. In a case where you've been preparing for months, it's of national importance, this wasn't an accident."

Kyle Rittenhouse  mistrial
Judge Bruce Schroeder (L) and Kyle Rittenhouse are seen during the 18-year-old's trial at the Kenosha County Courthouse on November 10, 2021 in Kenosha, Wisconsin. Sean Krajacic-Pool/Getty Images