Tuesday, October 1, 2013

LD Nov/Dec 2013 - Truth-Seeking vs Attorney-Client Privilege


Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.


Introduction

This resolution seems debatable, right? I mean, there is a balanced division between Aff and Neg, right?  If you think there is, it may be better to skip this part of the analysis and go straight to the Aff and Neg positions.

Attorney-client privilege has been protected for around 400 years and is designed to enable a free and open communication between lawyers and their clients.  Apparently this resolution is asking to consider that "truth-seeking" should come first.  Maybe it is not so clear what that means.  I confess, this particular resolution is difficult for me.  Due to the way it is worded, there are alternate interpretations which can greatly alter the nature of the debate.  At first brush, the topic seems understandable enough.  It seems to be suggesting we should value truth-seeking over attorney-client privilege.  From a legal and practical point of view given 400 years of legal precedence, this seems like a very difficult case for the Affirmative.  However, in a philosophical universe, should we desire to live in a world in which truth takes precedence over privileged communication?


Definitions


criminal justice system

There are lots of definitions for criminal justice system and they are all pretty similar.  Therefore I have chosen a representative definition from the National Center for the Victims of Crime :
The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes.1 The main systems are:
  • State: State criminal justice systems handle crimes committed within their state boundaries.
  • Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state.


I use this definition to make a point about the wording of this resolution.  When we speak of the criminal justice system, is the intention we should consider within the boundaries of the United States, the criminal justice system, regardless of its jurisdiction, or should we interpret this to mean "the U.S. criminal justice system" meaning the system whose jurisdiction is U.S. federal law?

truth-seeking

Here again we have a potentially ambiguous term.  Without the hyphen we may be inclined to define the two words separately and thus, we have the idea of trying to find out the true facts.  As a hyphenated term, the meaning can change to describe the process of understanding the truth about past crimes and atrocities so as to avoid repeating them:

ICTJ (undated):
"Repressive regimes deliberately rewrite history and deny atrocities to legitimize themselves. Truth-seeking contributes to the creation of a historical record that prevents this kind of manipulation. It can help victims find closure by learning more about the events they suffered, such as the fate of disappeared individuals, or why certain people were targeted for abuse."


The latter interpretation deals with the values centered around the right to truth. No matter how it is split up, putting an absolute definition on the work "truth" is notoriously difficult.

We could claim truth is a value, or at least knowledge of "what is true" is a value desired by humans and while we may never know absolute truth we may attain a certain confidence that what we know is true because all manner of investigation confirms it to be true.

Merriam Webster defines truth as the quality or state of being true and true is defined as agreeing with the facts; or the quality of being real or genuine.  It defines seek(ing) as to search for (someone or something) : to try to find (someone or something); to ask for (help, advice, etc.); to try to get or achieve (something).

to take precedence over

Merriam-Webster defines precedence as "the condition of being more important than something or someone else and therefore coming or being dealt with first".  It is an interesting that its meaning suggests a thing which is considered first in time order.

attorney-client privilege

For this definition, I refer to the American Bar Association :
"The classic definition of the attorney-client privilege was articulated by John Henry Wigmore as applying "[w]here legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived." While Wigmore's formulation specifically relates to communications made by the client to the lawyer, the modern approach in most U.S. jurisdictions protects communications from the lawyer as well. However, don't be surprised by the argument that the lawyer's answer to the client may only be protected if it, in turn, would reveal the client's question. In any event, the purpose of the privilege is usually stated as meant to ensure full and open communication, candor, and confidentiality between the lawyer and the client."


Presently there are a few exceptions to protection of the communication between attorneys and their clients but for the most part, they are very specific exceptions overseen by a court.


Interpreting the Resolution

For me there are dilemmas in the wording of this resolution.  First, we can't really ascertain the jurisdiction of the criminal justice system in question.  In some cases, if we assume it pertains to investigations at the federal level, we can limit the application to specific examples where knowing the truth can make the difference between a successful or thwarted terrorist attack.  Of course, we can still use that example if the jurisdiction of criminal justice can be interpreted to mean any system of justice within the borders of the U.S.  But if we allow it to mean any justice system, then because there are no other limitations, any confessions made to a lawyer during a legal investigation can be revealed even if the matter is not one of grave national interests.  Without limitations, confessions made any in kind of misdemeanor or for that matter, non-criminal civil case could be revealed in the name of "truth-seeking".  In my opinion, this places a very high value on knowing the truth (which of course, we cannot adequately define).  If clients stop talking to attorneys because they know anything they say can be revealed, it will not necessarily make it more difficult to arrive at the "truth" but it will mean the client may not be properly defended since the legal counsel will not know the whole truth either.

So how do we interpret this resolution?  Is the intent to limit the debate to generally specific high-impact examples or is it strictly a matter of pitting the need to know against privileged communication regardless of the real-world impacts?  Perhaps, as one interpretation suggests, the intent is to limit the debate to fact-finding, truth-seeking commissions set up to investigate crimes against humanity.  It is more appealing for me to limit the jurisdiction to the federal justice system (but believe me, that position is hardly ideal) as opposed to pitting truth against privileged communication in all its manifestations but based on the very open wording, it seems to be what the NFL is asking us to do. A very interesting case, in Massachusetts questions, does attorney-client privilege still apply if the client is deceased? 

Click here to begin exploring the Affirmative position.

Below are some links to kind of frame this topic.

The International Center for Transitional Justice
http://ictj.org/our-work/transitional-justice-issues/truth-and-memory

Attorney-client privilege; Pitfalls and Pointers for Transactional Attorneys; American Bar Association
Raymond L. Sweigart, 2008
http://apps.americanbar.org/buslaw/blt/2008-03-04/sweigart.shtml

At Issue Waiver of the Attorney-Client Privilege in Illinois: An Exception in Need of a Standard
KEVIN BENNARDO, 2010
http://www.niu.edu/law/organizations/law_review/pdfs/full_issues/30_3/Bennardo.pdf

PROTECTING ATTORNEY CLIENT PRIVILEGE WHEN THE THREAT OF LITIGATION ARISES
Brendan Collins,
http://www.gkglaw.com/site/files/protecting_attorney_client_privilege.pdf

ATTORNEY-CLIENT PRIVILEGE: THE ERODING CONCEPT OF CONFIDENTIALITY SHOULD BE ABOLISHED
Duke Law Journal
PAUL R. RICE, 1998
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1026&context=dlj

18 comments:

  1. This is a great post! Thanks for the links.

    ReplyDelete
  2. so is the resolution asking whether the CJS as in the court/judge should ask the lawyer to provide certain information that would have been undisclosed, or is it asking when a lawyer should give information that the client may not want disclosed, but could help revealing the truth? So basically im asking is the CJS in this context the court officials, or the lawyer?

    ReplyDelete
    Replies
    1. It is possible to take a very high level interpretation of this resolution or a very pragmatic interpretation which basically says, if a client confesses to a crime, the lawyer has a duty in the interest of the truth and the public good to reveal it. Some states in the US actually operated that way and some jurisdictions have passed laws which are "exceptions" to A-C privilege in cases where the attorney believes exposing information will prevent substantial harm or death.

      Delete
  3. On this prior inquiry, I would feel that could be established by an observation or framework argument within the case. The Neg could probably get a lot power arguing that a defense attorney has to be an active player in this truth-seeking and thus if their client who is a defendant admits or discloses something that casts them in guilt the attorney would be required to report it. This would result in the defense attorney becoming just another prosecutor and the defendant would be very limited in their options to a legitimate defense. This could be extended to argue that it would also undermine the presumption of innocence by the accused.

    ReplyDelete
    Replies
    1. Generally speaking I agree with you. However, if you look at my previous response, some jurisdictions are making exceptions in cases where concealing the knowledge may result in harms or an innocent person may be convicted.

      Delete
  4. Do you know any articles for the neg?

    ReplyDelete
    Replies
    1. Yes. Look here (next time you can click the 'Public Forum' tab at the top of the page)
      Click here for the Con position.

      Delete
  5. do you think it is wrong/abusive to define truth-seeking as two separate words? --Celeste

    ReplyDelete
    Replies
    1. I see no problem at all with defining the separate words. It's the way many debaters are doing it.

      Delete
  6. what r good values and value criterians?

    ReplyDelete
    Replies
    1. Seriously? Uhmmm how 'bout justice and upholding the constitution. Or better yet you could read all of my posts on this topic and several others about how to select values and criteria. Click the Lincoln Douglas tab at the top of the page.

      Delete
  7. So im doing a debate involving this topic and im confused with statistics. Is their anyway i can find simple statistics and facts about this topic?

    ReplyDelete
    Replies
    1. I am not sure what kind of statistics you need. There are not a lot applicable to this resolution, except perhaps those related to the numbers of innocents in U.S. jails. For that, I would look at the Innocence Project online and enter "statistics" in their search box.

      Delete
  8. Believe it or not, I have a tournament on the 14th, and am just starting because my PF partner bailed on me. Thank you so much for this.

    ReplyDelete
    Replies
    1. Good news! You only need to debate this topic at two tournaments. Good luck.

      Delete
  9. I am a freshman in ld. how can I attack and defend both sides? Any tips?

    ReplyDelete
    Replies
    1. Read the Pro and Con positions I posted for this topic and you will see how. Click the Lincoln-Douglas tab at the top of the page and follow the links provided.

      Delete

Feel free to leave comments relevant to the topics and activity of competitive high school debate. However, this is not a sounding board for your personal ideologies, abusive or racist commentary or excessive inappropriate language. Everyday Debate blog reserves the right to delete any comments it deems inappropriate.