The defense team in the Kyle Rittenhouse trial on Tuesday filed an updated motion for mistrial with prejudice, which included claims of the prosecution withholding video evidence from defense.
As outlined by National Review, “defense accuses the prosecution of introducing drone footage of the incident in question that was lower quality than the footage that was already admitted into evidence and presented to the jury. The prosecution claims the new video, brought in after the trial was already underway, shows that Rittenhouse instigated the altercations in which he fatally shot two men and wounded a third in Kenosha, Wisc. last summer amid the Black Lives Matter riots.”
“The video footage has been at the center of this case,” reads the motion from defense. “The failure to provide the same quality footage in this particular case is intentional and clearly prejudices the defendant.”
Top self-defense lawyer and legal expert Andrew Branca told The Daily Wire on Wednesday that the apparent video withholding “absolutely calls for a mistrial with prejudice,” especially when compounded with other offenses by prosecution.
“In my professional opinion this news that the defense was only provided with a low-resolution version of the drone video absolutely calls for a mistrial with prejudice, especially when compounded by the other already existing grounds for such a dismissal,” Branca said via email.
The legal expert noted of Assistant District Attorney Thomas Binger attempting to use banned evidence and risking a violation of Rittenhouse’s Fifth Amendment privileges.
“The problem is this is a grave constitutional violation for you to talk about the defendant’s silence, and that is, you’re right on the borderline. And you may be over, but it better stop,” Judge Bruce Schroeder scolded Binger, last week. “I can’t think of an initial case on it, but this is not permitted.”
Branca highlighted the importance of the drone video evidence in question for the prosecution, underscoring his argument for grounds of a mistrial with prejudice.
“The prosecution’s entire theory of the case, their narrative of guilt, is that Kyle Rittenhouse provoked Joseph Rosenbaum’s attack on him,” he told The Daily Wire. “The only evidence the prosecution has ever offered in support of this claim of provocation is this drone video.”
“Given that the State only provided the defense with a low-resolution version means the defense was unable to either adequately prepare Rittenhouse for his own testimony, or their own counter-argument against the value of the drone video as evidence of provocation,” Branca explained.
Branca on Wednesday morning, appearing on a legal YouTube channel called Rekieta Law, emphasized that the “burden” of providing defense the accurate video evidence is on the state, not the defense. The commentary came after some suggested the poor video quality could have been sent to defense by mistake.