Tuesday, October 8, 2013

LD Nov/Dec 2013 - The Affirmative Dilemma

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

For part one of the analysis, click here.

Affirmative Dilemmas

As debaters struggle to make some sense of the affirmative position of this resolution, I will try to take the interpretation of the resolution into a more pragmatic point of view.  I wonder if this resolution was not written by a lawyer, who is more intimate with the issues and ethical dilemmas that lawyers face which are only revealed to the public in a few high-profile cases or  perhaps a monotonic TV expose' dealing with travesties of justice.  In general, if a client confesses an intent to commit a future crime, the lawyer has an obligation to reveal the knowledge.  But if the client confess past crime in the context of a criminal investigation the rules get a lot more murky.

First a disclaimer.
I am not a lawyer, or a student of the law so I may not be entirely accurate in all of my statements, so I urge you to do your own research.  Here is my interpretation.

If a client confesses a crime and it is clear that failure to reveal that confession will result in some kind of bodily harm or death to other persons what should the lawyer do?  What should a lawyer do if an innocent person is about to be or has been wrongfully convicted?  These are presently moral and ethical dilemmas for attorneys.  In a system which values truth, one may argue the lawyer has a moral duty to expose the truth in order to avoid harms to the innocent.  This is especially relevant if it is clear the information will not be discovered in the course of a normal adversarial proceeding.

These issues where addressed somewhat explicitly by the American Law Institute (ALI) in an edition of its Restatements of the Law Governing Lawyers.  Suppose a lawyer learns from a client, the client committed a crime for which another was convicted and will be executed.  Under previous interpretations, it was declared that since no future crime was threatened, the lawyer had an ethical duty to withhold the information.  In 2002, there was a revision which provided some relief by declaring that information which may reveal potential harms or crimes could be ethically revealed.  Basically if there was a reasonable certainty that withholding the knowledge would result in "substantial bodily harm", the lawyer should reveal the information.  The American Law Institute's "Restatements..." are not law.  They are more like standards governing behavior.  However, some jurisdictions have enacted laws which follow the ALI statements.

Moliterno (writing in 2007):
At present, at least when wrongful incarceration is occurring, two states are on record as answering this question in the affirmative, although both used expanding modifications in the Model Rule 1.6(b)(1) language to achieve that result.93 According to Massachusetts Rule 1.6(b)(1), a lawyer may reveal information "to prevent the commission of a criminal or fraudulent act that the lawyer reasonably believes is likely to result in death or substantial bodily harm, or in substantial injury to the financial interests or property of another, or to prevent the wrongful execution or incarceration of another...Neither Massachusetts nor Alaska would allow a lawyer to rectify a wrongful conviction that was not currently producing incarceration. The balance point has been struck as follows: Rectifying a wrongful conviction alone does not warrant revelation of client confidences; rectifying a wrongful conviction that is producing incarceration does

The American Bar Association (ABA) also addressed the issue and amended its guidelines.

Strutin 2010:
The ABA Model Rules of Professional Conduct (ABA MPRC) has changed the landscape of attorney-client relations by creating an exception to confidentiality. Under the MRPC Rule 1.6(b)(1) a lawyer may "reveal" or "use" confidential information "to prevent reasonably certain death or substantial bodily harm." And Massachusetts' version extended it further to allow disclosure in order to prevent "wrongful execution or incarceration of another."

I urge you to check the sources, especially the Strutin evidence as it contains many links to case examples and various studies on the issue.

Affirming Truth

Having gotten a glimpse of the ethical dilemmas faced by members of the criminal justice system, the Affirmative debater may organize a pragmatic case which elevates truth-seeking above attorney-client privilege as a way to avoid the illustrated problems.  It does not take a huge leap of imagination to see how such a position protects the innocent and serves the interests of society.  Affirmative debaters do well to remind the judge that A-C privilege is not a right, it is a privilege and privileges can be taken away if situations warrant.

Negating Truth

The negative position is not substantially changed if the affirmative side chooses the pragmatic debate illustrated above.  Nearly all legitimate criminal justice systems around the world protect clients from self-incrimination so clients can avoid making such statements.  Even if the affirmative decides the truth should prevail under an exception basis, it devalues the supremacy of truth.  This seems to force the affirmative to defend truth-seeking without exception which allows negative to present all of the arguments why a such a general rule is present not in the status quo.


Wrongful Conviction and Attorney-Client Confidentiality
Ken Strutin, 2010

Rectifying Wrongful Convictions: May a Lawyer Reveal Her Client's Confidences to Rectify the Wrongful Conviction of Another?

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