Smoke and mirrors and red flags

In political debates each side distributes “talking points,” or cleverly planned statements that each commenter should repeat as often as possible when they give interviews or otherwise get press. When you listen to NPR, CNN, Fox news, or any of the major networks, it can get a bit annoying because the person talking tends to ignore the questions that are asked, in favor of getting their talking points in as many times as possible, which makes the entire interview sound kind of silly.
In the recent “debate” over spending cuts, one that I heard over and over from republicans was “smoke and mirrors.” The accusation was that democrats were using “smoke and mirrors” to confuse the people about what the issues really were. “Smoke and mirrors” I am familiar with – it is one of the prosecutor’s favorite mantras at trial, accusing the defense of obfuscating the issues and trying to deceive jurors.
What strikes me is that when someone throws the phrase “smoke and mirrors” out there, they are usually committing the act that they are complaining of. I have had trials where my goal in my client’s defense was to keep the issues as simple as possible and focus only on the elements of the crime alleged, as the prosecutor throws up every possible detail to raise questions, repeatedly asks, “isn’t it possible that . . .,” and puts on testimony by a jailhouse snitch that failed a polygraph on the same statements the prosecutor is asking him to testify to. Yet the prosecutor, in closing, argues that the defense is putting up “smoke and mirrors” to confuse the jury. The idea is to make the jury think that the other side is trying to trick them – if the jury does not trust you they are not likely to vote for you.
Similarly, it turns out that the spending cuts the republicans were touting were nothing more than political grandstanding anyway – 38 billion dollars turns out to be only 350 million in actual spending cuts for the year, for example. The side that made “smoke and mirrors” their biggest talking point was engaging in political smoke and mirrors the entire time.
“Smoke and mirrors” has become one of those phrases that, when heard, tends to mean the person saying it is throwing up a smoke screen in an attempt to hide the fact that they are the ones trying to confuse the listener. For those who practice law, and I suppose those who follow politics as well, it is a red flag. Like when a person prefaces a statement with “to be honest about it . . .,” or “I wouldn’t lie to you . . .,” it’s a red flag that something is wrong with the speaker’s own presentation. Why would a person feel the need to tell you that they are being honest about this or that particular statement if they are an honest person to begin with?
There is a particular prosecutor in Horry County who always manages to work the word “disingenuous” into every argument they make – it used to be annoying, now it’s just entertaining. It’s a big word and it makes them sound very knowledgeable, or I assume that is what they believe. News flash – many jurors don’t know what the word means, and judges probably get annoyed with hearing you say it every time you appear in front of them.
Disingenuous, according to, means “lacking in candor,” or “giving a false appearance of simple frankness,” or “calculating.” Every time this attorney argues in court, they are accusing the other attorney of lying to the court. If you consistently argue that the attorney on the other side is being disingenuous, it may be that it reflects more on your presentation to the court than it does on every other attorney that argues against you.
Telling the jury or the judge that the other side is lying to them is not nearly as persuasive as showing them. If you are rigorously honest in the presentation of your case, and the other side is being deceptive, it will be obvious to the fact-finder. If you are not honest in your presentation, but your strategy is to tell the fact-finder that the other side is dishonest over and over, this will probably be just as obvious. Don’t tell people that you are honest or that the other side is dishonest, show them.

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