Judge Bruce Schroeder’s scolding of the prosecutor during the Ritttenhouse trial drew a great deal of media attention. Unfortunately, media outlets were less interested in discussing the underlying problem that caused the judge’s eruption.
The underlying problem is a common one. Prosecutors frequently—some, routinely—will comment on defendants’ post-arrest, post-Miranda silence. In the Rittenhouse trial, the prosecutor did this in two ways. FIRST, he asked Rittenhouse on cross-exam to admit that this is the first time he’s chosen to talk about the incident, thus implying that he had declined to talk to police upon his arrest. SECOND, because the state has to go first at the trial, the prosecutor also got Rittenhouse to admit that he had the “benefit” of listening to the state’s witnesses and seeing the state’s video evidence before finally talking about the incident.
