>> i understand the court's personal feelings about it, but i do believe we want to clear. i don't believe we can give them and let them do it in private. so we have our laptop ready to go, so if they give us any numbers they want to see, we should be able to pull them up. >> your honor, i agree with the first part of that. i don't know what exhibits the jurors wish to see. we, the defense, has a real problem with them seeing the drone footage. what has come out, we have a motion pending before the court from this trial based upon disclosure of evidence, and if they want to see that, that is just tainting this jury more. i asked the court to consider the drone footage was turned over by an anonymous person who we supposedly now know who it is, mr. beeman. on the first friday of the jury we were provided a copy of that from mr. krause that was neither in the length or definition of clarity that the state had. we did not get the full download that they received until saturday or sunday of last weekend after all the evidence was closed. and that's a real problem. not to mention that, since doing our research, the specific owner's manual says that, when using ai to enhance photographs or videos, it is for investigative purposes only, it is not forensically to be used in a court of law and should be labeled as such. >> you are wagging your head no. is that true? >> the evidence in this trial does not stand, and i am concerned because -- >> let's not get ahead of ourselves, because now the jury wants to address this. we'll certainly have to talk about it. i have not... you know, it was interesting. along with... some of the other misinformation about the case that is widespread, and you gentlemen are as aware of it as i am, now we've got some people -- i think i read it, it's the paper i used to deliver for a few years when i was a preteen, and the milwaukee sentinel, which are now one paper. that they talked to some professors at the two law schools in the state and said it was "odd," i think was the word. that i didn't drool on the motion to dismiss. i haven't even had a chance to read the motion to dismiss. i just got it yesterday. i really think before i rule on a motion, i should let the state respond. so why anyone would think it's odd for the judge to sit on a motion to dismiss, i have no idea. in the recommended course for judges, at least that's what i was educated to believe, that motions to dismiss should be kept under advisement unless they are crystal clear and they had a chance for both parties to respond, which we didn't have in the heat of the discussion on the date of the original motion is made. i didn't hear your side of it in terms of argument. so i'm somewhat astounded, but of course the audience of the general public, as i spoke about it the first day of trial, the result of the trial should be open to public scrutiny and people should have confidence in the outcome of the trail. i think we all get on that. and it's a shame that irresponsible statements are being made. as long as i'm talking about it, i guess i'm going to talk about that, too. the business about people not being identified as victims. how would you like to be put on trial for a crime, and the judge introduced the case to the jury by introducing you as the defendant, and the person who is accusing you as the victim? and then, throughout the trial, have all the references to the complaining witness as being "the victim." is it so difficult to just you e the term complaining witness? so we can determine whether there was a crime committed? i will leave that comment at that. finally, i am not reading about how bizarre and unusual it was to have the defendant picked the numbers out of the tumbler yesterday. i would admit that i don't know that there is a large number of courts that do that, maybe not any. i do it because of an incident i had in a case i tried in every . i estimate 20 years ago, it could've been more. it was a big case. i think it was a murder case, but are not sure. and there was a black defendant and 13 jurors, one of whom was black. when the clerk, the government official, drew the name out of the tumbler, it was the only black. there is nothing wrong with it, it was all okay, but what do they talk about? optics nowadays? is that the word for things? that was a bad optic, i thought. i think people feel better when they have control. ever since that case, i have -- which was -- well, ever since that case i had an almost universal policy of having the defendant do it. it had nothing to do with anybody's race or anything like that. i've never had a complaint about oh four. in fact, i haven't had a complaint about it here. but some people seem to be dissatisfied with that, and people who want to undermine the result of the child. trial. >> your honor, it's what i do my best to avoid reading anything anybody is writing across the states. we know what happens in here, they don't. >> i don't always have that luxury, though. anyway... and some of the things that have been said, too, i guess i will comment on that. these are reputable attorneys i practice to three years, and i think it's shameful, some of the things being done to these people. when i talked about problems with the media, when this trial started, we were there in part -- not fully, but in part -- because a grossly irresponsible handling of what comes out of this trial. i will tell you this, i'm going to think long and hard about live television in a trial next time. i don't know. i've always been a firm believer in it because i think people should see what's going on, but what's being done is really quite frightening. frightening, that's the word. but back to the subject at hand. and i have discussed my disdain for the rule. i am not going to fox you guys into accepting what i think is the better way, and i sense from the statements that in some respects you may even agree with me that it would be better if the jury could -- we are going to now have the jury come down here to the courtroom, and everybody will be shooed out of here as they should be. we are going to have to review the procedure that's been outlined. but maybe to watch it once, is that what the rule is? >> i think they should be able to view what they want to view as often as they want to view it. >> coming to my other objection, i don't have a problem with them viewing it multiple times. at a certain point, i don't think that is -- three or four times, i don't have a problem. just to get them keep playing and playing it, i don't think that's the right way, either. that it's giving the war emphasis to one piece of evidence. >> well, but sometimes there is one piece of evidence which is absolutely critical. i talked about the attempted murder case that i had here. i don't know how we are going to police this anyway. the other thing is, when it is being policed and someone is watching them talk about it, well, can they freely talk? which is what we want, we want freedom of expression between the jurors. as they watch these videos, to me, if they want to watch it a hundred times, that then. think if it were a bench trial. i said it before, if this were a bench trial and i put in my decision, that i thought exhibit 4486 was critically important, but he didn't want to over emphasize concentrating on it, so i left with questions in my mind about it and decided i better not look at it anymore, i should get reversed. that's outrageous. but that's what we are forcing the jury to do because of the disrespect the courts have had in this country for the juries. these are intelligent people, but they get treated like -- there was a time when the people, educated people in the town, where the physician and the lawyer and maybe the schoolteacher and the preacher. and the rest of the people were not as smart as those educators. right? wrong. there's never been the belief of the founders of our country. it's never been true. i think these people are as competent as he educated people -- and many of them are educated -- to make these decisions. that is where the founders of our country put the power, not with us. so i think it's insulting to the jury to tell them they have to have these restrictions on their viewing. but we are going to sit down with it and find out what the exact procedure is and we will await what they want to do. but for now i'll answer, do we view the videos in private or the courtroom? do you need to know the exact exhibit number or video or photo? well, there's two options. one is you can have all of them. anyone gasping? you can have all of them, whatever you want. you can pick and choose. or you can describe generally what you want. >> if they can give us a title or description, we can also figure it out. >> i agree. >> you've got copies, so what i'm going to write here is in courtroom. general description. the general description of what you would like. is that all right? >> yes. >> the only thing i would ask about with regard to your answer, your honor. >> yes, sir? >> i'm not sure i heard you correctly. if we bring the jury back, you mentioned something about kicking everyone out of the courtroom? i don't know what you're planning to do, but if you're planning to do that, we might want to tell the jury that so they know that we are planning to do this without the public around. >> that's a good point. i don't know who are going to be the "kickees." certainly all the media and the officers other than -- other than media and the officers and the question is whether the layers and the defendant -- i don't know what the answer is, we will have to check that. and i don't know if i'm supposed to be in here. i get the impression -- and it's been a long time since i read one of these cases -- i get the impression it was supposed to be the bayless, but i'm not even sure about that. we will have to look at that. i understand the good suggestion that you made but i am afraid i don't know enough of an answer right now. i'm going to send this out now. >> your honor, can we be excused to do research on what you're talking about? >> please do. >> okay. >> thank you. >> harris: all right, microphones are backed down inside the courthouse in kenosha, wisconsin. there are a couple of things you should know in breaking news fashion now about what we have been watching. first of all, the jury has a question. it has to do with whether or not they can rewatch a portion of the evidence of drone video that was shown only once to them. that's our understanding. they want to see it again. and the question is, do they get to watch that in the courtroom? do they get to watch that in private? and maybe "get to you" is in the right word. which place should that happen? and the judges now taking that into account. and he sent them a little note back. part of the discussion has been about, well, how many times did they get to watch it? is it four, is it five? that was the defense for kyle rittenhouse talking. if this is one piece of evidence they get to study more than another piece of evidence, is that fair? the judge says yes, it may be a critical piece of evidence to them. the judge said yes. but the question is, should that have parameters around it? are they going to watch it a thousand times? but it will be in the courtroom, he says that much. then the question is, who is allowed to be in the courtroom while they watch? a lot still going down in the kyle rittenhouse trial. remember, it's a murder trial. august 15th, 2020. then 17-year-old kyle rittenhouse says in self-defense he opened fire with his ar-15-style rifle, killed two people, injured another. and wisconsin does have a law that says in self-defense, if you feel there is imminent danger or threat to your life, you can use deadly force. so that is the crux of the case. since yesterday afternoon, the jury has had this case in their hands, and they've been deliberating. but now suddenly a few minutes ago, 20 minutes ago, that came to a halt with this important question. let's start "outnumbered." i'm harris wagner. i'm joined now by my cohost, emily complained you and kaylee mcenaney. fox business anchor, dagen mcdowell. civil rights attorney and fox news anchor, leo turrell. right on time. take us inside the courtroom. and what is the argument now over whether or not they can rewatch this video from the perspective of the defense and the perspective of the prosecutor's? steve i think you very much for that question, harris. hi, everyone. let me tell you my experience after 30 years of handling state and federal cases. when a jury wants to have certain evidence played back, normally it is played back inside the courtroom. both sides, the defendant, the prosecutor, they are always present. the judge is present. they play it inside the courtroom. that has been the normal practice that i've experienced. what is very significant is that this evidence, who introduced the evidence? to the prosecutor introduce this evidence? that usually tells you a lot about what's going on inside the jury deliberation. i would submit to you that there is some disagreement. there is some further analysis going on inside that jury courtroom where someone wants to see evidence, because the question is, whether or not the shooting was justified or not. so this aspect, this request, will give us a preview. coupled with that, harris, is the fact that the defense is arguing that it's that drone video -- was this schematic you heard the defense team saying, is it is going to be a few, are there going be parameters around that? >> leo: let me answer that. they are speculating. one time may be enough, two times. but you never want to deny the jury evidence. i think i'll evidence is not equal, harris. certain evidence is more critical than the other. the judge pointed that out. i would not speculate as to how many times. i've had this situation happened before and normally once is enough, but you don't know. so i don't want to speculate. >> harris: can the judge say how many times? is it for him to say it's only going to be 15 or two or whatever? >> leo: based on my experience, i've never heard a judge say, "you can only hear it one time or two times." because the jury is deliberating. i think you should let the jury make the request but not preempt the jury to see how many times they want to see a certain piece of evidence. >> harris: all right. emily, we watched it happen. the judge made some notes, he gives it to be taken upstairs to the jury. on his notes, you are watching carefully what he was writing down. what are some of the things the judge wants to communicate with that jury? >> emily: here's what i want viewers to understand, just to continue leo's analysis. first, the judge is taking under advisement exactly how many times the jury can watch a video. at the end of the basis of wisconsin law. that's when you had the judge say we would circle back on that, and of course now they can watch it once. keep in mind the defenses arguing they should not be able to watch that footage at all. that is the subject part of the really important motion to dismiss this entire trial, to move for a mistrial that the defense filed on monday. he also hear the judge say, "i haven't even had time to read it." for viewers, the legal argument that they are holding right now -- >> harris: i want to slow you down a little bit, because people may have missed along the way, because they are concentrating on what's happening right now in this moment, emily, the judge sending a note back. so i really want to start there and then we can go to the motion to dismiss, because it is confusing to know whether or not they are going to be able to watch it as many times, if they want. what would the judge be saying to them at this point? because he clearly sent a note. >> emily: i'm not sure, it could be a whole host of things, frankly. i think what he was really need to understand, however, is the issue that this drone footage is the subject, the reason why defenses arguing this entire trial should be gone right now. to go back to what i was saying, prosecutorial overreach is a really big deal, and what "with prejudice" means is that it they would not be able to retry kyle rittenhouse. the reason you would move forward with prejudice is whether the prosecution acted intentionally in bad faith, essentially culpable knowing exactly what would happen, and that they wanted another pick. that means the trial is going so badly they want another chance. that's why they're essentially sabotaging and messing things up for themselves. the defense has argued, we did not see the caliber of this footage, we did not see this drone footage and that you showed the court. you showed the jury this specific high resolution amazing drone footage and then you argued that footage was the basis of the argument that the provocation would be included as a jury instruction, and it was pits of the defense is now saying, you withheld this very clear and large size video from us. he then argued successfully that this might lead to a provocation in which case the jury with her at all the self-defense arguments, and you did not show us the defense one more time or at all. so they are arguing that people are throwing around words like "withholding evidence" and the like, but it's about the prosecutorial overreach. presumed within that is a lot of things we've heard. the subject of the judge's admonition when he said we already settled these pretrial motions and how you bring up the same topic again and again. you are prejudicial about the defendant. and that is the subject included part and parcel with the question the jury had today. >> harris: let's lean in on just that point, because that was several days ago. and what you talking about is in this judge was fine with that prosecutor and they were going back and forth. he was saying, i already laid out the rules. that's what i mean by, i am so curious to know what he be telling the story at this point. they were not brought into the courtroom. we are sitting out thinking they are going to watch the video. i'm curious, when you have a question like that, because they've already seen the drama between this judge and that prosecutor, what could you possibly say? we are now arguing over whether or not you can see it, how many times you can see it. is he asking them how many times they need to see it? go ahead, leo. >> leo: let me be very clear, all he did was respond to the jury saying, okay, you're going to see it inside the courtroom. that's all he's done. that note is very short and very brief. i can tell you that much right now, there is no lung summary. while the jury comes back in, as to the number of times. i believe it should be seen as many times as possible and the defendant, all attorneys should be present when the jury reviews and evidence inside the courtroom. >> harris: to get back to it emily was saying, because now we are going to bring it all together, prosecutorial overreach. should anyone had been shown that video, maybe even more than one? >> leo: it should have been shown. >> kayleigh: this was detonating to me. i am of the belief that this court should be broadcast to the american public. i believe the american people should see this. but sometimes you question that decision, and i believe it's because of the prosecutorial overreach. emily may have some thoughts on this, but the idea that the prosecution, the fact that he remained silent, his miranda rights, to use that against him. this is basic constitutional law here. to your point about that motion, they had a high-def or much greater video file. >> harris: why not show it? hold on one second, leo. >> kayleigh: they had an 11.2 mb video. >> emily: i read the motion and they lead with that point. they lead with the point that the prosecution continues to belabor these things that were already answered. to your point, it was "frightening" to have this live trial, he said. "i may never have one again." in the argument --" >> leo: can i comment? >> harris: hold on, leo. go ahead. >> emily: the argument they are making is the prosecution withheld that evidence knowing the defense would object and that's why they are arguing with prejudice. they are saying the prosecution is deliberately trying to sabotage themselves because they know this isn't going the right way, the way that they should. >> harris: leo, sit tight for one second because i've got a quick follow-up for emily, if you would. emily, you said this very early on. you said to watch the tone and tenor -- and forgive me, i maybe putting a few words in your mouth -- but watch the tone and tenor inside the courtroom. just moments ago you said, is a possibility that the prosecution didn't put the case on the way they wanted to and they've sabotage themselves? did that actually happen? >> emily: that's the second argument for their requirement with prejudice that they are getting. it's what i said earlier, they said the prosecution has to act intentionally in bad faith and of culpability. and also it sort of a sinister motive, either to prejudice the defendant or try to get a mistrial, but another bite at the apple. "this isn't going the way we planned, so we let them have a successful motion and then get another bite at the apple and retry it." that is why they were saying this needs to end right now because they withheld key evidence, and also they did so in such a culpable fashion that they don't deserve to retry this individual again. again it is about the specific evidence. the rosenbaum where they got in their instruction. they can decide whether they were provoked into the aggressive move because of this footage the subject of the argument is around. >> harris: okay, leo, take it away. the >> leo: very briefly, the defenses are going prosecutorial misconduct. the withholding of evidence during the discovery phase is a major sanctionable action. the defense wanted to be a dismissal with prejudice, but it is prosecutorial misconduct to withhold evidence and that is a central point. the other thing that i've realized, when the judge read off all these items, harris, if the judge is annoyed by the outside presence of the media because he went through a litany of things that he was disturbed by, by these professors commenting on whether or not he is sitting on a motion, and he disclose the fact that the state has not been provided in opposition. normally you file a motion, and opposition, or reply. but it seems to me that he is very annoyed by the outside influence. he is annoyed, imagine if the jury is annoyed also by the outside influence. >> harris: you know, we have as part of the screen, you can see after the left ear, you got protesters, counter protesters. this is right outside the courthouse in kenosha, wisconsin. of course you've got, not to fire, driving distance, women and men in the national guard who have been called up for the post verdict read. they anticipate that if the street doesn't like what's happening out of the verdict that they could have problems. as leo was mentioning, there's a lot going on. there's like a side story going on to what's happening inside that courthouse. and i would just wonder how easy it is to keep that out. like, they are not sequestered. this judge made a decision, they were not going to be sequestered to, not last night, not tonight. he has not entered sequestration back into the conversation yet, or maybe he won't. >> leo: bad decision bad decision. >> harris: and he hasn't had them sequestered throughout this process. this was a tinderbox that turned into a riot, and even at that point, august, 2020, didn't call in the national guard. that was an option. and now on trial as a young man with the fate of the jury, his life, in their hands. just to be a visit, just to share with everybody, we are seeing what is on the steps of the courthouse right now. as leo and many of us have pointed out, that does play a role somehow. we don't know what they know, those jurors, or how they know it, but we are human beings. you want a quick one on that? speed to keep in mind that an atmosphere of intimidation is still not enough to rise to the level of an actionable consequence there. so all of us, it sort of tugs at our consciousness. that they can hear those chants initiative in sequestered pay that into a material event occurs that they can point to, at this point it's not at the level where it can be changed in any way. keep in mind, the motion for a change of venue was denied at the beginning of this trial. so the jury at this point has been confirmed that they are free of influence in the deliberation. >> harris: dagen, we are sitting in this break right now because the judge, the prosecution, the defense, are trying to figure out how to maneuver and navigate this request from the jury to watch this video. how many times it'll be. we do know, and leo stated it very quickly, it'll be in the courtroom with both teams present, and the judge, so they will get to watch it but we don't know the details of that yet. your thoughts? >> dagen: i did think it was interesting that the judge is talking about the "milwaukee journal sentinel," quoting law professors, and that he was kind of perplexed by what they were even saying. they were talking about, why had the judge not ruled on this motion to dismiss for a mistrial with prejudice? as emily was talking about. intelligently and eloquently. he was like, "i'm keeping it under advisement, i haven't even had a chance to read it, or a chance for the prosecution to even respond to it." his quote was, "it's a shame that irresponsible statement's are being made," but to his point that he's now questioning in the future whether to allow the broadcast of a trial live, well, without the broadcast, we would have so much more information, so many more irresponsible statements about what's going on in the courtroom, because it would be left up to interpretation by the very members of the media who, from moment one, "the new york times" included, made this about race. all the members of the media, if you can call them that, referred to kyle rittenhouse as a white supremacist vigilante. >> harris: well, the president of the united states referred to in that way. >> leo: defamation lawsuit. >> dagen: sorry, leo, i'll shut up and just a second. on the first day of "the new york times" reported on the shootings in kenosha, they referred to kyle rittenhouse by his race but failed to mention the race of the two individuals who were killed and the one additional individual who was shot. so i would beg the judge to allow live proceedings in the future. one more quick thing i want to ask in this jump ball to either emily or leo, the judge would rule on this motion to dismiss, but when would he do that? would he do it after the deliberations are finished but before a verdict is delivered? because it's highly possible -- and this is speculation, but it's possible that the jury would deliver a guilty verdict but that it would be found out potentially is a mistrial is ruled. thoughts on that? >> leo: i can answer that, teacher. >> dagen: [laughs] i'm not your teacher, and the student with my hand up, leo! >> harris: i'm with you, dagen. >> leo: the rule of that motion, that judge can rule on anytime he wants. he can do it for the jury, rendered that verdict after, he is not under any obligation to rule at a particular time. >> emily: just to piggyback on that, the judge stated specifically that, while he hadn't had time to review it, that he would take it under advisement and take as long as a consideration deserves. we hurt them and earlier in the trial talk about that with additional motions, saying that this is serious. it's really a serious deal. and vacating a verdict is an incredibly serious deal, as well. keep in mind that prosecutions can't appeal acquittals but they can certainly move for retrial or appeal on the basis of material legal procedural things. so this is the kind of thing that, when he takes that motion under advisement, this is such an important argument that the defense is making here. prosecutorial overreach of withholding a format of evidence, that this is the kind of thing the judge will take his time in considering. he also referenced, by the way, the need for both sides to give their arguments and for prosecution to rebut the motion, which has not yet happen. >> harris: we will cover all of that. wow, there's a lot of drama. one question, and the motion to dismiss with prejudice by the defense. and with this judge even do that? and when would he do it? leo has said it could happen at any moment, it could happen after they rendered a verdict. so much going on in the kyle rittenhouse trial. and we knew that it would be this way to the public outside that courthouse, because they haven't left since it started. the national guard on standby, and just in case people in the streets don't like the way it turns out. wow. all eyes on it. our coverage here on "outnumbered" continues after this. ♪ ♪ it's my woke-up-like-this migraine medicine. it's ubrelvy. one dose can quickly stop my migraine in its tracks within 2 hours. don't take with strong cyp3a4 inhibitors. most common side effects were nausea and tiredness. ask about ubrelvy, the anytime, anywhere migraine medicine. ♪ ♪ 'tis the season to break tradition in a cadillac. don't just put on a light show—be the light show. make your nights anything but silent. and ride in a sleigh that really slays. because in a cadillac, tradition is yours to define. so visit a cadillac showroom, and start celebrating today. ♪ ♪ veteran homeowners, so visit a cadillac showroom, and start celebrating today. newday's rates have dropped again. it's time to refinance. newday's low rate refi offers their lowest rate in history. two and a quarter percent. just 2.48 apr. save thousands every year and there are no upfront costs. not one dollar. the newday low rate refi. take advantage of these record low rates so you and your family can save. >> harris: in addition to the kyle rittenhouse trial, we are also keeping an eye on this. this just in, jacob chansley, known as the qanon shaman, was just sentenced to 41 months in prison for his role in the january 6th capitol riot. he pleaded guilty in september to a single count of obstructing an official proceeding. he has now been behind bars since the arrest 11 months ago, and the department of justice has pushed for a tough sentence to set an example, as he was one of the first felony defendant still in his fate. prosecutors argue that chansley had become the face of the capitol riot of him and face paint and a headdress inside the senate chamber went viral. his defense team had wanted time served. so that is the very latest on that. you know, before we move on, just a quick thought on that. any detail you can give us to kind of further that. >> i think what i would like viewers to keep in mind with this, as the mainstream media stays far away from covering how the dispositions are occurring for all these men and women of these americans have participated in that -- granted, albeit tragic -- event of january 6th, how they are treated. is the status of them, whether they are in confinement for a month, and for them to keep abreast of it. if it can happen to another american, it can happen to you. to me what that signifies is that they are making a statement with these individual -- >> harris: even before it's adjudicated. >> emily: exactly, and also with the sentencing. >> harris: gotcha. >> emily: fox news alert, as we await a verdict, this after the jury just asked to view video, and that he would determine the procedures to allow that. he just been informed that cameras are about to come back up in the courthouse of the judge can address the jury about viewing the video. keep in mind, this is the drone video that was shown to the jury during jury instructions. it's also the subject of a contentious motion to dismiss with prejudice that the defense has filed, because they argued the prosecution had a very high quality clear large-volume size of this drone footage and they did not share it with the defense. they argue they shared it with the defense after arguments had closed and after the trial had ended, and they argue this was the result or sort of emblematic of overreach, of their intentional bad faith, that they continue to engage in, at the defense argues, and they also argue that this particular footage is the reason that prosecution successfully obtained a jury instruction about provocation. that the jury can now consider whether kyle rittenhouse himself provoked the violence in all of those instances that are the subject of this trial. if so, that wipes away, it extinctions, his right to self-defense. so they say, look, this is a crucial element and you withheld it from us. they argue that his prosecutorial overreach that they withheld this very clear and precise imagery that they were not able to view themselves. a lot has been made as well of the media coverage of this trial, how they've shaved a particular narrative since day one, before even learn the facts of the instances that happened on that fateful night in kenosha, wisconsin. you've learned a lot about the media coverage of this. >> harris: hold on one second before we go on, because the scene in front of us is about to change. excuse me, emily and kayleigh and everybody. as soon as the cameras pop up will be back in that courtroom. i'm going to ask my team to tell me in my ear when the jury will be let back in. we are watching this unfold as it happens. that means the judge gave back in answer to the jury. that piece of paper i was referring to, that's what i was kind of getting out with emily earlier. the answer is yes, you can see this video, this extremely important video that we just heard. nobody else had seen it, it was like a rabbit out of the hat and boom, look at all this high def stuff. a key part of the prosecution case was laid out in the closing argument. all of the sudden they say, wait a minute, we only saw it once, we want to see it again. they cannot watch it in private, that's how the judge has ruled. they will watch it in the courtroom, and as i understand it that is pretty standard. we don't know how many times they'll get to see it, but as leo pointed out, you don't usually have a situation where they try to keep you from watching it as much as you need to, whatever that piece of evidence may be paid but then the court proceedings go forward. everybody standby, and kayleigh? >> kayleigh: what i was going to say, when you look at these protests, it's really a tinderbox. it was about a year ago when many small businesses were lit ablaze. i was able to visit some of the small businesses lit ablaze. we are looking at a situation that we hope never gets out of hand. this 500 national guard on standby but we know that some of these protesters against kyle rittenhouse have said, "if kenosha don't get it, shut it down." they were not truthful, they were not correct about kyle rittenhouse, that he was the aggressor, that he was a white supremacist. we'll see what the jury decides, but the media settled on its narrative the day after the shooting occurred. with "the new york times" writing -- this is how they describe the shooting -- "the authorities were investigating whether the white teenager who was arrested was part of the vigilante group his social media accounts appear to show an intense affinity for guns, law enforcement hot, it, and president trump." this is how the newspaper of record described as interaction, a categorical statement. it reminds me of the michael brown shooting. we saw those buildings lit ablaze, in ferguson, missouri, only to find out from obama's justice department later that it was not was not unreasonable for wilson to fire on brown. my point in analogizing the situations is that it's irresponsible for the media to set a narrative. it's regarded as tried-and-true for a verdict comes out. we will see what happens but the media had its verdict long ago. >> emily: dagen, your thoughts on the proceedings we watch this morning? >> dagen: i'm going to cede my time to leo, he wanted to say something. [laughs] >> leo: i think something is very important for the viewers to know. if there was a better quality definition of this video, the judge should ask the prosecution every simple question. did you have this other video available at the same time you presented the grainy photo? if they say yes, that's a mistake. that is game over right there. if they were in possession of it, game over. that is the one question the judge should ask the prosecutor. if they say yes, miss child with prejudice, because there is a reciprocal discovery obligation on every case, and that was definitely withheld if the answer is in the affirmative for the purpose of gaining a tactical advantage. that's very important for the viewers to know. >> harris: wouldn't that be akin, leo, if you have evidence and you have the exact thing, and any other piece of evidence you have a replica that was maybe brought into the room and really kind of hard to see, and the one you show is a replica that was brought into the room and hard to see, and the exact thing you decided you just weren't going to show? >> leo: thank you very much, here is. let me make sure this term is used. the best evidence rule. the best evidence is a clear photograph. i'll tell you right now, when other follow-up. this is right in my wheelhouse. the judge would refer sanctions against those prosecutors if they did this. this man's life is on the line right now and they withheld the evidence for the purpose of winning a case? the prosecution is responsible for justice, not conviction. >> harris: yesterday called it "too many matlock moments." fun show, but not reality. >> dagen: harris, can i say something about reality versus -- well, you know, scripted television? it's very common in jury deliberations, and emily can weigh in on this, as well. very often they will send out a lot of questions. it just depends on the jury, and deliberations can last any number of days, a long amount of time. jonathan turley was talking about this, he treated, there is nothing unusual in the length of deliberations. it can be the result of simple due diligence rather than the deadlock. the average length of jury deliberations is relatively short period and the van dyck case, in the murder of laquan macdonald, it didn't take them long. both paul manafort it took them four days to convict on eight counts. so it's all over the case in terms of that. also you can never guess what's going on in the jury room. we really have no idea. this ask to view this video doesn't say much, but in terms of the prosecution, the prosecution has been a disaster across the board. when the judge was talking about reconsidering broadcasting a live trial, just think about the testimony of the prosecution witness who comes in front of the jury and says -- and i'm paraphrasing about pointing a gun at kyle rittenhouse. i think that was the moment publicly that everyone heard that on thought, this is not what we were sold by the media in terms of an open and shut case against kyle rittenhouse. >> emily: we are getting reports now that the jury has two more questions. it's unclear what they are at this moment. the judge is going back into his chambers while he waits for the attorneys to return to the courtroom, so we'll keep you updated on that. dagen, tear point, no one ever knows what's going on in the jury room, and everybody asked me for my predictions and i say, nothing ever surprises me. nothing should surprise you, because it's really difficult to predict. i want to make sure that viewers are correct in their understanding of what this motion was and what is before them. it is not an argument that key evidence was withheld, it is the quality of it, and the defense has argued that prosecution withheld this quality of evidence upon which a very important jury instruction, a very important legal tenet, it was based upon, which was whether kyle rittenhouse, the defendant, prevailed one of the deceased into attacking him. and the attorneys laid out in that motion quite clearly what the timeline was. they said the prosecution had this footage for months, obviously, but they did not give it to the defense until five days later after they showed it and give it to the court. so it's all laid out perfectly, all the time line and this will be before the judge or the judge will take it under advisement and will determine whether or not -- it is called "grant or deny," the motion to dismiss based on prejudice. it remains to be seen what these two other questions the jury has regarding. it may be about the drone footage. it might be about whether they have to refer to exhibit numbers correctly and specifically. but we will learn now, we have the cameras in the courtroom and we will learn what those questions are. kayleigh, going back to you for the media coverage, the judge today call that irresponsible. he said it is frightening having a live trial, but there is a balance about the public's expectation to the transparency into such a high-profile trial is this baby have certainly seen what opacity does for corruption. what are your thoughts on that? >> kayleigh: i think the judge is weighing as he talks about the media narrative what is happening to him personally. what i mean by that is the daily mail and the "washington examiner" have reported that this judge and his family have received threats. he was told, "enjoy your term, it's going to be her last." his families receiving threats, as well. i have to imagine that's on his mind. >> harris: that's really frightening. >> leo: absolutely. >> emily: he went to the bench in 1983, this is differently not his first rodeo. this shows the enormity of this case when you see a judge he wasn't stated decades ago and yet this is the one that has had such a great impact. >> harris: the judge has come under criticism for some of the off-the-cuff things he has said, for having a big personality, for talking about a brand of lunch that was coming. he's had his moments, and he is certainly not a small personality. but at the same time, this is justice, and justice should be blind. you know, my concern with what kayleigh is talking about, threats against the family, we are not allowed as the american public to know the truth. and look at what's playing out in our country to set sides courtroom. not that they have anything to do with each other exactly, but it is a quieting, chilling effect you have on the truth when people who want to speak at our more than cancer it canceled,they are chilled. when they say to put a special tag, a special marker on those parents they are looking at, the people have complained about at school board meetings, you might be one of those parents who showed up upset. we don't even know what the report might say about you, but now it's got a special tag, which is what they put on human and child traffickers and drug traffickers -- human and drug traffickers, i should say. the equivalency right now in our society to chilling speech, we have to start to talk about that. what this judge does not courtroom, maybe you don't like his personality, maybe you don't like one thing or another, it's unfolding in this courtroom and that young man's life is depending on that. >> dagen: can i add that the danger of having -- if there is one, i am all for -- >> harris: i was just going to finish with, threats are not allowed. they are not okay under any circumstances, not to the judge nor anyone else in that courtroom and not toward the jury. if we want to start to cancel people, dagen, we can cancel people who don't think the freedom of speech and the freedom of justice in that courtroom is a good idea. let's please cancel them. >> kayleigh: well said. >> dagen: i was going to add that if there's any tricky part of broadcasting a trial lives, it's that we go back to the o.j. simpson trial, the judge plays to the cameras. that was clearly the case with lance ito, and this judge schroeder is responding to criticism he has seen or read when he talked about why he allowed kyle rittenhouse to pick the jurors' names himself. he went on to explain to people in the courtroom and the american people watching today why he decided to do that and gave the back story. again, he is paying attention to what people are saying about his performance on the bench. >> emily: i think it's interesting as an analogy that the basis of many of these emotions and arguments in court or whether it unfairly prejudices the defendant at all. that is the actual court of justice. what about the court of public opinion. for example, nicholas sandmann. he talked about the potential of a defamation suit this defendant might have on the media if you'd like to weigh in on that. >> leo: thank you very much, emily. first of all, back to the judge, i've been in hundreds of courtrooms, hundreds of judges. the prosecutor basically crossed the line and people are upset because the judge has chastised the prosecutor, rightly so, because the prosecutor went over the line. the judge is definitely responding to outside pressures, which team he upsets, as harris said, the right to speak, the right to expression. this intimidation factor has no place in democracy whatsoever. i think the issue here is that this case should be decided what goes on in the courtroom and not outside the courtroom. >> emily: that's right, do you want to weigh in on the potential for the defamation suit? >> leo: definitely. let me answer that. very simply. yes. he has a defamation lawsuit for being called a white supremacist. you have to prove that, joe biden pdf to prove that, left wing media. or you're going to be writing out a six or 7-figure check. no question about it, easy case. >> kayleigh: and when jen psaki refused to comment on an ongoing court case, but we are against vigilantes with assault rifles, they just underscored what joe biden previously defamed him for. >> emily: absolutely. if the defense tries to argue that this is a public figure, how much does it matter if it is a manufactured public figure? at the time this was just a 17-year-old individual that was embroiled in this. at what point are the medium themselves creating the monster that became the public figure? which matters because that is the malice standard required for a defamation suit. >> harris: here's where i'm going with that. we now are creating public figures. we make things go viral as users of online and social media. are we frustrating the law, then? are we messing with how the law looks at who a public figure is? >> emily: are giggly. to your point you make about twitter, where the humans create the trending hashtags, you could argue that human -- >> harris: it's curated. >> emily: that they then create artificially the public figure which then brings in that malice standard required, which, again, is really hard to surmount. >> harris: don't let anyone tell you that on "outnumbered" we don't go deep, because we do. [laughter] and we are watching everything. leo and dagen, thank you for being with us today as we break this down. nobody saw this coming, but they ask questions all the time. but our faces are up against the glass watching this case. we'll bring you every moment, continuing coverage of the >> sandra: thank you. fox news alert as we continue to follow the breaking news out of kenosha, wisconsin, at this hour. this is "america reports" and d2 of jury delivery and the jury deliberations of kyle rittenhouse is underway. hello and welcome. i'm sandra smith in new york. spoon good to be spending this wednesday afternoon with you. i'm john roberts in washington. the jury asking several questions today including where they could re-watch the video that was presented as evidence in the case. there are seven women and five men now determining whether rittenhouse was the aggressor at a chaoti

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