Last month, I posted on attorneys who create accidents with contextomy. Sounds weird, I know, without defining the terms.
“Accident,” in this sense, is a logical fallacy in which one advocates a general rule without acknowledging any exceptions. Contextomy means taking something out of context. The post noted that the two often go together.
State v. Dawson, 402 S.C. 160, 740 S.E.2d 501 (2013), shows the two at work.
At issue on appeal was whether a defendant is sentenced under the law in effect at the crime’s commission or the law in effect at the defendant’s sentencing. Defense counsel argued for the common law rule and cited a case saying that the common law governed.
Problem was that the case counsel cited held that the common law rule governed “in the absence of a controlling statute.” And counsel neglected to mention that part of the holding.
The omission did not escape notice. The Supreme Court pointedly observed that counsel omitted the qualifier about controlling statutes, and concluded that a statute did indeed control.
Truncating quotes is not new, and happened often enough for the courts to create safeguards. During trial, for example, a party may use Rule 106, SCRE, to get opposing counsel to introduce other parts of a writing or recorded statement into evidence once counsel introduces part of a writing or recording. Rule 32(a)(4), SCRCP, likewise allows a party to require opposing counsel to introduce into evidence other parts of a deposition once counsel introduces any part of the deposition. Both rules make sure that counsel is not creating an accident with contextomy — otherwise known as quoting out of context.
Has anyone else had opposing counsel truncate quotes on appeal? Please leave a reply or a comment, or reach me at www.attorneyroberthill.com.