Saturday, October 5, 2013

LD Nov/Dec 2013 - Truth Seeking - Neg Position

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.

Neg Position

The Neg does have a certain presumption on its side, in my opinion, and Neg would do well to remind the judge of the long history of American jurisprudence as a model for the world.  Of course, there are many arguments why that may not be entirely true given the numbers of false convictions and the release of dangerous criminals due to technicalities, etc.  But, certainly most people want to believe the system, overall, works so there is no harm in reminding the judge that it is a "very good" system.

I figure Aff will take several positions.  They will indict attorney-client privilege as a feature which obfuscates truth seeking, they may attack the nature of the adversarial system itself, or they may, as I have suggested, simply try to elevate truth-seeking above privilege.  The Neg must be prepared for any or all of these possibilities.  The Neg may claim the adversarial system, in general, and including attorney-client privilege supports truth-seeking as well as supporting other important criteria not least of which is the presumption of innocence.  Additionally, the Neg may claim there is no necessity to try to add more importance to truth-seeking since placing a high-value on truth seeking may result in justification for such practices as extraordinary rendition and torture.

The Legal Support for A-C Privilege

One of the most important rights granted by the 6th amendment of the constitution is the right to have an attorney.  It is the purpose of that attorney to be your advocate and advise you as to the best course of action. As a result it is well established that A-C privilege is necessary and should be protected.  Because our concept of it, rooted in English Common Law, has been well established over 400 years and in fact extends back much farther in time.  As affirmed in Pritchard v United States, even though it can at times be contrary to truth-seeking, it is nevertheless a concept to be preserved and one can ascertain the court upholds attorney-client privilege because its value outweighs any other consideration.

Pritchard v U.S.:

"The privilege that attaches to the communications of a man to his lawyer is of ancient origin. "It is a salutary rule designed to secure the client's freedom of mind in committing his affairs to the attorney's knowledge." 5 Wigmore on Evidence, (2d) Ed. § 2306. "It is designed to influence him when he may be hesitating between the positive action of disclosure and the inaction of secrecy." It is the privilege, however, of the client which the attorney is bound to respect. As Wigmore elucidates it, § 2291, "It is worth preserving for the sake of a general policy; but it is none the less an obstacle to the investigation of the truth..."

It does not necessarily hurt the Neg position to acknowledge A-C privilege is an impediment to the search for truth. In fact it may strengthen the Neg position if it is shown how despite its contrary nature, the recognition of the privilege persists because it is essential to achieving other more important values and the truth is nevertheless exposed despite A-C privilege.

Several Supreme Court rulings have upheld the value of attorney-client privilege, including Hunt v Blackburn in 1888 which elucidated important values when it said A-C privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure."

It was also defended in Trammel v United States, Mohawk Industries v Carpenter and Upjohn Co. v United States where the court stated A-C privilege, "puts the adversary in no worse position than if the communications had never taken place."  This statement, is a powerful answer to the claim that A-C privilege prevents truth-seeking.

The Value of A-C Privilege

Any attempt to position A-C privilege as counter truth seeking may lack a full understanding of the application of the privilege in American jurisprudence.  It is applied very narrowly so as to avoid giving the ability to intentionally hide the truth.

Giesel 2010:
Even with this downside, the attorney-client privilege has been an accepted creature of the law for centuries. This acceptance indicates a shared belief that the benefits of the privilege ultimately outweigh the costs. Yet, courts recognize and fear the obstruction of the truth that the attorney-client privilege may cause. As a result, courts have “strictly confined [the privilege] within the narrowest possible limits consistent with the logic of its principle.” As a United States District Court for the District of New Jersey recently stated:
While it is true that the attorney-client privilege is narrowly construed because it “obstructs the truth-finding process,” …, the privilege is not “disfavored.” … Courts should be cautious in their application of the privilege mindful that “it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.” … In all instances, the facts underlying any given communication remain discoverable.

The values protected by A-C privilege are enumerated in the following source:

Leong 2007:
Professor Charles Fried argues that the privilege is necessary to the fundamental value of client autonomy, claiming that it is "immoral for society to constrain anyone from discovering what the limits of [the law's] power over him are.'". Professor David Louisell grounds his justification for the privilege in a concern for privacy, asserting that the inviolability of certain relationships is "more important to human liberty than accurate adjudication.,, Expressing a similar concern for human relationships, former Supreme Court Justice Arthur Goldberg once asserted that privileges such as the attorney-client privilege "relate to the fundamental rights of citizens.'" Finally, Professor Charles McCormick argues that:
[0 ]ur adversary system of litigation casts the lawyer in the role of fighter for the party whom he represents. A strong sentiment of loyalty attaches to the relationship, and this sentiment would be outraged by an attempt to change our customs so as to make the lawyer amenable to routine examination upon the client's confidential disclosures regarding personal business...

The business of Criminal Justice is justice which according to many, must be a preeminent value.  Because justice is perceived in a holistic and complex way in association with procedures, declarations and rulings, sometimes the exposure of truth is a secondary concern.

Gardner 1963:
The end of law is justice. Justice has been defined as giving to every man his due and as the ordering of an ideal relation among men.' Yet, in recent times, a broader vision of justice has been set forth as that which considers the entire picture, the totality of competing social interests, as that which makes for civilization, that which raises the powers of mankind to their highest pitch for the civilization of the time and place. Courts have always struggled to achieve justice, ignoring truth at times, when the state of development of the law did not permit them to reach the desired result by the generally presupposed route of truth. Thus, our law has a long history of resort to legal fictions to achieve the desired result. Professor Wu has commented on the matter as follows:
 ..practical reason being the soul of the law, its essential function is to serve the ends of justice. Where the law looks for the truth, it is for the purpose of rendering justice. Where it seems to disregard truth, it is also for the purpose of rendering justice.  . .Law is the measure while the facts are the things to be measured. In other words, although justice is based upon truth, truth alone does not constitute justice. Only on a higher plane can we assert that justice and truth are one. On the human plane, they are inter-related, but do not fuse into a unity. This does not mean that justice is unreal or untrue. It is real and true, but not in the sense that it corresponds with empirical realities. It is real and true in the sense that it corresponds with the reality of the moral order ...


The Truth About Truth

So what of the value of truth or knowledge of that which is true?  While it may be intrinsically good it is not always valued. Perhaps we can make the claim that despite the fact some criminal trials, while they fail to fully uncover "the truth" and leave many questions unanswered, are nevertheless satisfactory in their outcomes.  Maybe the reason for this, is truth is not always necessary to make sense of the world.  Perhaps this one reason many philosophers question the real meaning of "truth".

Clark 1990:
Nietzsche's position on truth seems to amount to a denial that any human belief is, or could be, true. He proclaims, for example, that "truths are illusions we have forgotten are illusions" (TL 84; WL 880-1), that "truth is the kind of error without which a certain kind of being could not live" (WP 493), and that there are "no facts," but "only interpretations" (WP 481).

Several other interesting perspectives can be extracted by looking at the philosophies of Baudrillard, Richard Rorty, Jean-Fran├žois Lyotard and others.  I don't want to dive too deeply into the post-modern theories of truth at this time.  Suffice to say, for the Neg debater in this round, there may be some need to devalue truth as a means to discredit Aff claims that truth must be a preeminent value above all others but one may reasonably question whether truth is a value or merely, as Nietzsche claims, an interpretation of the facts.

Well Enough

I think for the time being, I will leave this discussion of the Neg position where it is and not expand upon it.  Perhaps later I will pick it up and add to it to revise my current opinions.  I am interested to see how this debate plays out and get a feel for what the prevalent position will be.  Then, if I think it will benefit the debate community, I may revisit this topic.

Click here for a pragmatic approach to the Affirmative debate


What the Attorney-Client Privilege Really Means
Smith, Gambrell, Russell, LLP; 2003

Prichard v United States
United States Court of Appeals Sixth Circuit.
April 4, 1950

Confidentiality, Privilege: A Basic Value in Two Different Applications
Center for Professional Responsibility; American Bar Association
Sue Michmerhuizen; 2007

Upjohn Warnings, the Attorney-Client Privilege, and Principles of Lawyer Ethics: Achieving Harmony
From the SelectedWorks of Grace M. Giesel
Grace M. Giesel; 2010

Attorney-Client Privilege in the Public Sector: A Survey of Government Attorneys
College of William & Mary Law School; William & Mary Law School Scholarship Repository
Nancy Leong; 2007

A Re-Evaluation of the Attorney-Client Privilege(Part II)
James A. Gardner; 1963

Cambridge University Press
MAUDEMARIE CLARK; Colgate University; 1990
(While I have not included a link, this paper can easily be found online)


  1. Please expand on this. I am having trouble coming up with criterion for this case.

    1. See my answer below. For sure I can not give you a criterion without knowing you value and the your case. The criterion I give would be completely random.

  2. I wanted to read the whole thing about Professor Wu. What page is that on in the 74 page link you gave?
    Also what value and criteria do you recommend?

    1. To find the quote in the source, open the PDF file, and search it for "Wu". You will find it only a few pages in but I pretty much posted the entire text. (To search a PDF, press ctrl-F and enter the search text in the text box.)

    2. Concenring v/vc - see my answer below.

  3. What would be a good core value?

  4. All of you asking for values and criteria need to understand that the value you choose needs justified and the VC you choose needs to link your case to the value. It is not easy for me to randomly pick a V/VC without knowing something about your case. In addition, I have at least two or three complete blog posts on how to pick a V/VC. You should read them. I could tell you for example, "autonomy" is an excellent value for the Neg but unless you fully understand how A-C privilege upholds personal autonomy you will fail if you claim it. In the post above I supply sources which discuss the values. Look at the Leong source where quoted. Two values are discussed: privacy and liberty. I am giving you the answers in the posts - but you need to look beneath the surface.

  5. I am running Justice as my neg value, and a case surrounding A-C privilege as essential to the criminal justice system. The contentions basically say that A-C privilege establishes trust between A-C and allows critical info to come to light that would otherwise be nonexistent in the presence of no A-C privilege. What would a good VC be for this case?

    1. Some students with similar cases are running V/Cs like maintaining due process or protection of rights - since it helps preserve constitutional rights even though ACP is not a right itself. There are also various V/Cs aimed at preserving the AC trust or bond. These are pretty good and fit your case but some have challenged the V/Cs as being abusive since they are viewed as one-sided in favor of Neg (I disagree). One V/C I have not seen, is "exposing the truth or complete facts". That may seem incredible in light of the resolution but one may hold that ACP is the best way to expose truth because it ensures the attorney will know the full facts and will be able to mount a more vigorous defense. The alternative is, the client invokes the right to silence, and nothing comes out. Yeah, maybe that V/C is a tough one but it kind of fits with your contentions. :)

  6. My value is justice and my vc is preserved ACP. My first contention is that ACP leads to full disclosure. I can't think of a second one. Please help!

    1. Before talking about your second contention, I am concerned about your VC. It is considered abusive to the AFF in some regions. If I were you i would consider changing it. There are lots of suggestions for contentions on the Neg. Since it seems (not sure) full disclosure seems to indicate truth (or portions of truth) do come out in the A-C relationship, I think it could be useful to point out the current system with ACP has been functioning for hundreds of years and no one has claimed it is unjust. In fact, truth is not necessary for justice (giving each his due). Sometimes circumstantial evidence is enough to convince a jury of guilt and so justice is served. One does not always need all the facts of a case in order to render each his due and most of the time AFF will concede this during a well constructed cross-x.

  7. What is a good criterion for the value Justice

    1. Based on your case, answer this question in one sentence: how is justice reached by ACP? By...what? Your answer can be the VC.

  8. My value is client autonomy, and my VC is upholding human liberty. Does that work well together or is it not right?

    1. I think whether it works or not depends much on your actual case, but I will say, human liberty and autonomy are kinds of the same things and both are broad. Restricting ACP in favor of truth-seeking does not limit the sum of total autonomy - it limits some aspect of it - and that aspect is probably what you want to narrow your criterion to.

  9. just like someone on the aff case I also need ideas for subpoints and contentions except for the neg case

    1. Same answer as the person for the Aff - I assume you read this? It is full of contention ideas. Do you know the basics of writing a case? A contention is a claim, warrant and impact which links to the resolution (or in this case the value structure). I have given you claims, warrants and impacts. The next step is writing the case for you and I don't have time.

  10. i am going up against upper classman who have some powerful stuff from this website too. any idea to pull one over on them? I am trying everything and backing it up with proof from witnesses and real cases and just about anything I can get my hands on. please help! Thanks!

    1. It's impossible to answer without hearing the case in a round. Talk to your coach or varsity team.

  11. people use really big words that i dont understand. some judges dont understand those words either. what should i do? get a dictionary?


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