Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.
Part one of this series - definitions - is here.
Aff PositionI thought I would touch on this position right away, since it will no doubt be very challenging for some of you, well perhaps most of you. At the core of the issue, Aff must overcome a profound indoctrination in the minds of most adult LD judges that attorney-client privilege is a defacto, god-given right under the current U.S. adversarial justice system. Of course, it is not actually one of our natural rights but it is based on Constitutional law and some 400 years of legal precedence. The right to an attorney is granted by the 6th amendment and the concept of privilege has been more-or-less defended in several Supreme Court cases. Given this reality, there seems to be no way the Aff could ever hope to face off against the Neg and argue against attorney-client privilege in a world that maintains the present adversarial, constitutionally-mandated system of justice.
Fortunately, this is LD debate and we can create any kind of world or evaluation paradigm we want to support our position. In fact, this is nothing new to LD. The theory behind truth-testing or comparing worlds paradigms have been established since the 1980s or earlier but where we debate, the theoretical principles of LD have tended to recede from the onslaught of evidence-based absolutism (let's call it the Toulmin model) versus the theoretical or analytical reasoning (let's call it the Plato model). Nevertheless, I know theoretical and analytical arguments still work and still win debates - but I digress. Having said that, I think the Aff can establish good grounds for this case somewhere in the middle of the two models.
I am very reluctant to think this should be a clash between the adversarial and inquisitional systems of justice. If that was the intent of the resolution it could have been more direct in wording. In addition, if the intent is create any kind of indictment of the adversarial system of justice, why isolate attorney-client privilege as the main bone of contention? In my opinion, the current practice of "plea bargaining" is more "debatable" by the average high-school student, many of whom do not even know what attorney-client privilege is let alone understand its purpose.
Is this resolution intending to setup a clash between discovering the truth and a practice which obscures the truth? If so, that is denying in my opinion, the real purpose behind attorney-client privilege. What real evidence exists that A-C privilege has resulted in failures of justice or more specifically the failure of truth to be discovered? Because, the real clash between truth seeking and attorney-client privilege is difficult for me to ascertain, let alone many high-school students, I intend to focus on the potential clash between truth seeking and the current practices of the U.S. adversarial system of justice, of which attorney-client privilege is an inherent part. But more importantly, I believe the affirmative position must establish a hierarchical point of view in which truth seeking has precedence over other stated goals of criminal justice.
I don't know if the person or persons who worded this resolution chose the words "take precedence over" as a strategic consideration or as a more-or-less random utterance to convey a particular idea and we really have no clue of the particular idea behind those words. Nevertheless, be it clever forethought, or happen-stance, the key to the Aff case is interpreting that phrase to mean we must first value, we must first consider, we must rank higher, we must lend more importance to. Nowhere does it suggest we must support one and reject the other. So for the moment let us consider an Affirmative world in which we believe, truth-seeking and attorney-client privilege are both good but truth-seeking should take precedence. The affirmative world is one in which, one of the prime objectives of the U.S. criminal justice system is to find the truth and everything else is slightly less important. Given the possibility of a world where both truth-seeking and privileged speech coexist and faced with the fact that attempting to dismantle the criminal justice system or for that matter adversarial system as we know it and as codified in the U.S. constitution would be an exercise in futility, we can finally hone on some Aff positions.
Truth is a difficult concept because it is incredibly difficult to quantify in a universal way. Each person possesses a somewhat different perspective on what is true. We can assume "knowing the truth" is often something desirous (though we may not always want to know the truth). We can assume sufficient inquiry and investigation will lead to truth or at least remove things which are false from the field of inquiry. For this resolution, the affirmative recognizes truth-seeking, that is, the inquiry of what is true, as having precedence over a particular privilege of the criminal justice system in the U.S. Therefore it seems fitting, that since much of the business of the criminal justice system is investigation and inquiry, I will make a link between inquiry and truth.
The claim that “truth is a value” can mean quite different things. Two in particular need sorting out. One thing we might mean is the value of true beliefs. It is true beliefs we have in mind when we say that truth is a goal of inquiry. Here’s how I understand this. First, by “inquiry“ I mean the range of epistemic practices we engage in when asking and answering questions, whether banal (“where did I put my other sock”) or sublime (“Can something come from nothing?”). Second, by “goal” I don’t mean something that is necessarily desired. It is true that when we say that something is a goal, of inquiry or anything else, we sometimes take this to imply that we desire it. But truth often seems the faintest of human passions, undesired or actively avoided. In any event, these are matters of human psychology and best left to the experts. So let’s instead say that truth is a goal of inquiry in the sense of being a proper end of our epistemic practices, where “proper end” means something that is worth pursuing, whether we in fact do pursue it. A natural way of characterizing the end in question is James’s demand that we shouldn’t just “believe the truth!” we should “shun error!” It is not just good to believe the truth, then, it is good to not believe what is not true; that is, it is good to believe only the truth.
Without doubt, everyone (even disgruntled LD judges) will agree that the primary goal of the Criminal Justice System should be to protect the innocent. This takes place in two ways. First, we try to avoid falsely punishing the innocent and second, we protect the innocent when the guilty are punished by either separating them from society or deterring future transgressions. The adversarial system of justice is exactly like a debate. Two opposing sides present arguments in support of their positions based on evidence. The more persuasive side wins assuming all proper procedures are followed. The trial then is a sort of test or inquiry into the facts of the case and it is generally believed that two more-or-less equally capable litigants, advocating opposing opinions will expose the truth or at least enough of the truth that a decision can be rendered beyond a reasonable doubt. But in many ways, while the truth may emerge as a consequence it is not the objective.
Protecting the Innocent
It may be a surprise to some that the U.S. system of justice is driven by objectives other than seeking the truth and perhaps in many cases make the knowledge of the truth appear irrelevant. Additionally, the nature of the system may in fact be detrimental to the desired goal of protecting the innocent.
The current American system is marked by an adversary process so compromised by imbalance between the parties—in terms of resources and access to evidence—that true adversary testing is virtually impossible. It is a system in which competing litigants, unequal as they are, control everything from the investigation to presentation of the evidence, and in which their motivation in that process is to win, more than to discover the truth. So motivated, litigants coach witnesses, suppress facts, employ tricks and surprises, distort the truth, and manipulate fact finders. The result is a system that we now know, through the growing record of wrongful convictions, is prone to an unacceptably high rate of false convictions, as well as failures to convict the guilty.
While this may be surprising to many high-school debaters or citizens in general, it is and has been a much debated issue among members of those who know and practice law.
In 1966, Monroe Freedman published a famous article in which he argued that a criminal defense lawyer has a duty to (1) destroy a witness “whom you know to be telling the truth”; (2) “put a witness on the stand when you know he will commit perjury”; and (3) “give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury.”
The article set off a fire-storm of controversy in the U.S. legal world sparking a flurry or articles and responses. Marvin E. Frankel in a book "Search for Truth" attempted to defend the present system while acknowledging truth may not be the most important value.
Many of the articles on the perjury dilemma and the duty of confidentiality briefly cite Frankel’s The Search for Truth (and his book Partisan Justice, which grew out of the article) for the proposition that adversary combat may not be the most effective means of arriving at the truth. Indeed, the tension between the lawyer’s duty of confidentiality to the client and the lawyer’s duty of candor to the court came to be known as the Freedman–Frankel debate. Very few of these articles, however, advocate implementing Frankel’s proposals or seriously address the issue of a lawyer’s responsibility for truth in an adversarial system...
One strand of argument against Frankel’s proposals rejects the idea that truth should be accorded a higher priority in an adversary trial. This position has been argued most forcefully by Monroe Freedman, but others have made similar points. Freedman, in a response that was published alongside Frankel’s article, argued that the American legal system serves other values, like the promotion of individual dignity, in addition to truth. Serving individual dignity, Freedman contended, might sometimes require subordinating—and hence, distorting—truth. One example is the constitutional privilege against self-incrimination. Freedman quoted United States Supreme Court justices who have supported defense attorneys’ obligation to defend clients vigorously, regardless of whether they are guilty. None of the quoted passages explain why this duty exists or what makes it more important than truth, but Freedman offered the following explanation: “Before we will permit the state to deprive any person of life, liberty, or property, we require that certain processes which ensure regard for the dignity of the individual be followed, irrespective of their impact on the determination of truth.”
Debaters will find a wealth of evidence indicting or defending the present system. I think it is enough for the Affirmative debater to establish the potential harms but it is not necessary to call for reform or advocate another system of justice.
The Role of Truth In Criminal JusticeWhile we may say the primary goal of the U.S. criminal justice system is to protect the innocent, there is no reason to believe that process can effectively proceed without obtaining some knowledge of the true facts of the case. Indeed, whether by design or as a consequence, the truth to varying degrees is exposed to the satisfaction of the jurors. Knowing this, we can link "truth-seeking" to all forms of legitimate justice inquiries and express its true purpose.
None of the potential purposes of the criminal process can be reached unless the judgment has been based on a search for the truth. To reach any of its goals, the process must reflect an honest effort to determine what “really” happened. The truth evidently needs to be sought when “finding the truth” or achieving “truth and justice” are the declared goals of the criminal process. However, a successful restoration of “social peace” likewise presupposes that the relevant facts have plausibly been established; society cannot close the file on a disturbing incident unless convincing factual findings have been made by an agency with authority to do so. The importance of finding the “true” facts is demonstrated by the successful operation of Truth and Reconciliation Commissions5 and similar institutions. In order to achieve closure on traumatic events, it seems more important to determine and make public what actually happened than to impose criminal sanctions.
We can now begin to explain how "truth seeking" is at the core of criminal justice and need not focus on the advantages or disadvantages of adversarial or inquisitional systems. Further we can establish "truth seeking" as a prerequisite to adjudication. Therefore "truth seeking" takes precedence over any other procedure or privilege.
Suggested ValuesMany values are applicable to this position. Consider justice, fairness, and equality when guided by the criterion of protecting the innocent. You may also decide on various societal values such as societal well-being, social justice, or perhaps governmental legitimacy when looking at criteria such as maintaining the rule of law, upholding the social contract or defending the innocent.
Conclusion For NowMy purpose in this post, is lay down a basis for an affirmative position which establishes the necessity of truth-seeking to have precedence without need to reject the existing criminal justice system or the adversarial system of trial. At this point, I am still exploring some of the possible alternative positions that can be taken. I do, for example, believe the Affirmative can debate from an alternative world in which truth is an overarching value, however, the many theories of truth can be tricky to articulate in the course of a six minute constructive. For now, I will leave it as it is and hope the information presented in the post serves to clarify some of the affirmative arguments. I may revisit this position in the future.
Click here to read the Neg Position
Adversarial Counsel in an Inquisitorial System; University of North Carolina School of Law
Richard E. Myers; 2011
The Last Straw: The Department of Justice's Privilege Waiver Policy and the Death of Adversarial Justice in Criminal Investigations of Corporations
Julie R. O'Sullivan; Georgetown University Law Center; 2008
Making Lawyers Responsible for the Truth: The Influence of Marvin Frankel’s Proposal for Reforming the Adversary System; Seton Hall University
Daniel Walfish; 2004
Adversarial Inquisitions: Rethinking the Search for the Truth; New York Law School Law Review
Keith A. Findley, 2011
The Values of Truth and the Truth of Values; Epistemic Value, Millar, Pritchard (ed.) Oxford: OUP.
Michael P. Lynch; University of Connecticut; 2007
Should We Search for the Truth, and Who Should Do it?; Archives of University of North Carolina Law School
Thomas Weigend (undated)