Kyle Rittenhouse, the then-minor charged with killing two and wounding a third at a protest in Kenosha Wisconsin in the Summer of 2020, took the stand in his own defense at his trial yesterday. The case is a kind of litmus test in our current polarized times, with one half of the partisan spectrum seeing it as incomprehensible that a 17-year-old could have his mom drop him off with an AR-15 at a protest, shoot three people, and then simply walk past the police and go home, and the other half seeing him as, if not a hero, at least as someone who engaged in reasonable self-defense when confronted by an angry mob.

My thought while watching the testimony was that there’s a good reason that most defendants will rest on the Fifth Amendment. The defense in this case, however, likely knows that in order to find Kyle’s self-defense narrative credible, jurors will need to hear from the accused himself and, more specifically, will need to be able to sympathize with him at least a little in order to believe that he had a reasonable fear for his life. Predictably, there were some emotional moments in his testimony. The media coverage gravitated toward one incident: as he related his fear at being “cornered” during the first confrontation, Kyle broke down sobbing, forcing the judge to call a recess. The fact that supporters see this as sympathetic while opponents see it as staged shouldn’t come as any shock to any readers of this blog: We see what we expect to see. In this post, I’ll share some thoughts on the larger question on this case and any case with emotional testimony: What will the jurors think?

Emotion Carries an Effect

The subject isn’t extensively researched, but in general, there’s support for the idea that a little emotion can go a long way. One study (Wessel et al, 2012) notes that much of the prior research focuses on victim emotionality, and following stereotypes, focused more often than not on female victim statements. Seeking to update that, researchers have found that a moderate amount of emotionality increased witness credibility, and that this seems to be independent of gender and applicable to the accused as well as the victim. This lends support to the reasons why attorneys often will want some emotionality out of their witnesses.

But It’s Not a Sure Fire Trick

Much like the larger issue of sympathy, witness emotion is sometimes treated as a button that can be simply pushed as needed. That, however, is a mistake since the reaction is likely to be a little more complicated and a little more case dependent. For example, another study (Pico et al, 2020) looked at the effect of tears specifically, or as cynics might say, “the waterworks display,” from a witness. That study found that a defendant-witness who cries is seen as more remorseful, more reliable, more sincere, and more kind than one who doesn’t, but that this does not typically lead to lower levels of punishment — only in one scenario (drunk driving) did it work.

The Filter Drives the Reaction

The larger principle may be that expectations are going to lead. There is so much subtlety to our perceptions of emotions, as well as to our judgments of whether a given moment of on-the-stand emotionality is “staged” or “natural,” that the reactions are likely to be driven by the attitudes we have toward the witness and towards the story before the witness takes the stand. Thus, independent of any real or actual “acting,” it is normal that the tears of Kyle Rittenhouse would be seen as sympathetic and humanizing by his supporters just as they’re seen as insincere and calculated by his detractors. When it comes to how the jury is perceiving it, it will almost certainly depend on how they are seeing him and his case generally.

Jurors are filtering the case emotionally, but that is still one factor among many. They’re also filtering it logically, legally, and based on their own notions of common sense. The effect of tears from the witness will often depend on how the parties are doing on all of those other fronts.