Look Over There! Fooled You, Didn’t We?

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Wednesday, January 30th, 2019
Look Over There! Fooled You, Didn’t We?

When the trees move, the enemy is coming; when there are many blinds in the undergrowth, it is misdirection. Thus, what is of supreme importance in war is to attack the enemy’s strategy.

—Sun Tzu


What is misdirection? It is a form of deception in which the attention of a person is focused on one thing in order to distract his attention from another. When a magician holds a shiny coin up in the air in his right hand, telling you to look at this, while his left hand discretely reaches in his pocket to grab something, he is directing your attention away from what is really happening in an effort to trick you. And it works!

Attention can be controlled in various ways.

Misdirection has much to do with re-framing the audience’s perception, and perhaps very little to do with the senses. The minds of the audience members are distracted into thinking that an extraneous factor has much to do with the accomplishment of the feat, whereas it really doesn’t have any bearing on the effect at all. “The true skill of the magician is in the skill he exhibits in influencing the spectator’s mind.” (Dariel Fitzkee, Magic by Misdirection, pg. 33, copyright 1975).

Misdirection takes advantage of the limits of the human mind in order to give the wrong picture and memory. The magician uses this to manipulate the audience’s ideas, or, perceptions of sensory input, leading them to draw false conclusions.

Misdirection is also a chess master’s tool. The basic strategy of chess is to attack another player’s side and weaken their position, eventually taking several pieces. One way to do this is by luring an opponent into a trap and then take a key piece. It might be done by sacrificing a less important playing piece of one’s own in exchange for an opponent’s important piece. The idea is to use misdirection to possibly hide which piece will move in to capture the exposed piece.

Misdirection in trial is a form of deception in which the attention of a jury is focused on one thing in order to distract its attention from another. It is used to cause the jury to become so concerned about other disturbing facts that are unrelated to the elements that must be proved that they forget about the offense and are encouraged to convict because of the other, shiny coin facts that are not even relevant to the offense.

Granted, this is a trial strategy that can be incorporated by either side, but I see this being used frequently by the state. In their defense, most of the time it isn’t even intentional. The reason I say it’s not intentional is because sometimes all the extraneous drama and other facts that are not relevant to the actual elements are just too attractive and too tempting to avoid presenting. The state has trouble separating them from the elements they must prove. They cannot resist the urge to misdirect the jury by waving the shiny, irrelevant facts, around like a flag, like a magician trying to distract his audience from what is really important.

For the state, it can be a very effective way to draw jurors’ attention away from what must be proved and instead have the jury focus on other facts that just make your client very disliked. In a DWI case, for example, these misdirections can include bad driving facts that even non-intoxicated people commit all the time (like disregarding a red light, driving with no lights on, being asleep behind the wheel, being in an accident, weaving because of texting while driving, or making derogatory statements to the police).

It is your job as the trial lawyer to recognize attempts of misdirection and expose this type of trial tactic. You must begin exposing this misdirection in voir dire, talk about it in opening and then re-emphasize in closing that the state is trying to re-direct the jury’s attention away from what must be proven and towards some shiny coin that does not prove anything.

We must expose the misdirection.

We must draw a line of separation.

You must draw a line with physical gestures in your closing. Consider using a flip chart to distinguish for the jury between facts that prove the offense and irrelevant facts that were introduced in an effort to misdirect.

There are opportunities for the state to mislead and misdirect a jury in any type of criminal offense. Jurors do not like lawyers who try to trick them. If you expose these attempts of misdirection, the jury will turn on that lawyer in an instant. Jurors will be so offended at this attempted deceit that you will be in a position to win them over and greatly increase the chances for a favorable verdict for your client.

The only real lawyers are trial lawyers, and trial lawyers try cases to juries.

—Clarence Darrow