Defense attorneys filed a motion for mistrial with prejudice in the trial of Kyle Rittenhouse on Monday, accusing the state of intentional “prosecutorial overreach.”
The seven-page defense motion, filed on Monday, was provided to CNN by the court clerk this morning.
The motion points to a testy exchange between Judge Bruce Schroeder and Kenosha County Assistant District Attorney Thomas Binger over his line of questioning as Rittenhouse testified last week, which the judge had warned could be a violation of Rittenhouse’s rights under the Fifth Amendment of the US Constitution to remain silent.
In court on Wednesday, the judge initially called the discussion of the defendant’s silence a “grave constitutional violation,” but he later said it was “right on the borderline.”
Defense attorneys also pointed to a second incident in their motion from Wednesday, in which Schroeder admonished the prosecutor about an incident two weeks before the shootings that the judge said would not be permitted into evidence.
CNN has previously reported that attorneys made the court aware of their intention to file the motion last Wednesday following the cross-examination of Rittenhouse. A mistrial with prejudice would mean there would be no chance for a retrial.
The motion also resurfaces a heated exchange between attorneys on Friday over a drone video, in which the state alleged Rittenhouse can be seen raising and pointing his weapon at a man near Joseph Rosenbaum. The state says this is what provoked Rosenbaum to start chasing Rittenhouse
Defense attorneys say in their motion that they were given a compressed version of the drone video that was only 3.6MB, while the state had a higher resolution version that was 11.2MB. Schroeder told attorneys Friday he would let the jury decide on the video.
Prosecutors have not filed a response and Schroeder told attorneys he would take the intent to file the mistrial motion under advisement last week.