LD Debate: Attorney-Client Privilege

Thanks to Pro for accepting. I will present my case, and then rebut Pro's case. CON's CASE The goal of the criminal justice system is not to uncover the truth at all costs; rather, it is to search for the truth fairly. Thus, I strongly negate. I will offer the following counter-definition: according to Black's Law Dictionary Ninth Addition, attorney-client privilege is "the client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney." Prefer this definition as it establishes that only confidential communications are protected by the privilege. Not all communications between a lawyer and a client are, in fact, confidential, and so should not be topical to this debate. I also Value Justice. Aristotle defined justice as giving each their due--a notion John Rawls builds upon when he writes, "those who engage in social cooperation choose together the principles which are to assign basic rights and duties and to determine the division of social benefits." [1] This distribution of social benefits must, Rawls emphasizes, be done fairly, because only fair mechanisms can properly assign and distribute one's due. An unfair system is likely to give disproportionately, granting some people more than what they are due, and some people less than what they are do. Therefore, justice, at its core, is also an issue of fairness. In this way especially, justice is designed to protect the vulnerable from the powerful. Thus, I offer the Criterion of the Veil of Ignorance. Rawls observes that "the principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain," made behind the veil. [1] Rawls then posits two traits of justice, noting that "inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all." [1] From this, we can extrapolate two things: an act is just if, and only if, it is both advantageous for the vulnerable and it is equally applied. My Sole Contention is that attorney-client privilege is essential to protecting the vulnerable, i.e., those facing prosecution. Prof. Thomas Glynn writes, "full and frank communication is necessary for the provision of effective legal representation...attorneys otherwise would be deprived of information necessary for the preparation and anticipation of claims and defenses, which would harm both the client's interests and the adversarial process. The vindication of rights in, and overall efficacy of, our justice system often depends on sound and adequate legal advice and assistance." [2] Prof. Harry Subin furthers, arguing, "In order to paint a complete picture about the matter about which the client has sought legal representation, he or she may reveal incriminating information to the attorney. In such a situation, the feasibility of seeking legal representation is based on an implicit promise that the information revealed to the attorney by the client will not be disclosed to a tribunal. Without such assurances the potential client would find himself in a 'catch-22' situation." [3] The Harvard Law Review concludes: "privilege preserves the ability of laymen to defend themselves vigorously and thereby assures them that the law will be applied justly." Ultimately, this evidence illustrates that the vulnerable would be severely disadvantaged without attorney-client privilege. Without it, the vulnerable have no viable means of defense, and are at a severe and unfair disadvantage in the judicial process. The California Law Review furthers, asserting, "Active, partisan advocacy...is impossible when a defense attorney is expected to give evidence to the prosecution while he is supposed to defend his client. Without the attorney-client privilege, defense attorneys could routinely be subpoenaed to give evidence against their clients...active, partisan advocacy can only be achieved if the attorney cannot be required to divulge his client's confidences to the prosecution...To provide effective legal assistance, an attorney must investigate the facts of his client's case. A proper investigation can only be made if an attorney is able to communicate with his client and ascertain the client's version of the facts." [4] In conclusion, if you believe that attorney-client privilege is vital to ensuring the fair treatment of the vulnerable, then you must negate the resolution, as it is the only way to fully achieve Justice. PRO's CASE V: Justice - here we agree; the value for the round is Justice. Pro defines justice as "just behavior," but what does this actually mean? Just connotes fairness and impartiality. A judge who has decided that case before he has heard the facts is not a judge, but an executioner. Hence, the notions of fairness and impartiality inhere within our value. C: Understanding Truth - Pro asserts, incorrectly, that justice requires absolute truth. In fact, it does not. Let us return to the example of the judge: if the judge knows all there is to know about something, he is not actually judging anymore, he is sentencing. Black's Law adds that justice is the "fair administration of the laws." Is it fair to a criminal to deny her a defense? Is it fair for the judge to walk into the courtroom and declares: "I know all there is to know. There is no need for a trial--I sentence you to prison!" Truth is not an end in itself. Certainly, some truth is necessary, but it is not clear that it is important enough to supersede my right to justice. Therefore, my first point against Pro' criterion is that fundamentally misunderstand justice as fairness. Therefore, it cannot achieve the value because it ignores other components that go into justice, including rights, impartiality, etc. Secondly, "truth" is a highly subjective term. The police have a clear motive in eavesdropping, intercepting, or otherwise acquiring information: they want convictions and arrests. This could lead to creative interpretations of audio-recordings, selective editing, and so on. This is truth only from one side. Thirdly and lastly, I can understand what truth is without knowing it. My opponent's criterion, as argued, is more so "finding truth" which is a different matter entirely. I can certainly understand truth, and thus can link into this criterion, unless Pro would choose to revise his earlier criterion. C1: Truth as essential to justice - I have two rebuttals here. (1) Only a small group of innocents are actually convicted each year. Pro says 10,000 innocent people are convicted each year. Yet, 6,000 people are convicted of crimes each year in the state of Connecticut alone. [5] Connecticut is a relatively small state, and when considering how many people it locks away each year, we must assume the U.S. figures are astronomically high in comparison to Pro's drop in the bucket. So, is it better to violate the privileges of tens of thousands, or just the rights of ten thousand? Moreover, "Bureau of Justice Statistics doesn't track exonerations," [6] so all Pro's information is coming from outside sources that lack full, unimpaired access to the BJS's databases. (2) Attorney-Client Privilege is a Constitutional guarantee According to the California Law Review: "If a state denied a criminal defendant the attorney-client privilege, the client's sixth amendment rights would be violated because he would be deprived of an active, partisan advocate...Active, partisan advocacy, however, is impossible when a defense attorney is expected to give evidence to the prosecution while he is supposed to defend his client. Without the attorney-client privilege, defense attorneys could routinely be subpoenaed to give evidence against their clients...The denial of the attorney-client privilege would also violate the client's sixth amendment rights because it would damage the attorney's ability to investigate his client's case. To provide effective legal assistance, an attorney must investigate the facts...A proper investigation can only be made if an attorney is able to communicate with his client and ascertain the client's version of the facts. Without the attorney-client privilege, however, the client would be reluctant to confide in his attorney...When an action of the state prevents a defense attorney from discharging functions vital to effective representation of his client, a sixth amendment violation will be found." [4] C2: Truth as more important - here again, I have two points (1) Counter-syllogism P: Fairness is a prerequisite to justice P: ACP increases fairness C: ACP increases justice (2) Justice is about the fair acquisition of truth, not about truth itself. If it is unjust to act unfairly, then acquiring the truth via unfair means is still unjust. Justice wants truth, but not at all costs. To paraphrase Kant, justice is not the doctrine of how we can attain truth, but rather of how we can do so fairly. SOURCES 1 - http://www2.econ.iastate.edu... (my copy of the text is just slightly different from the online one) 2 - Glynn, Thomas P., 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 70 3 - Subin, Harry I., 1985, "The Lawyer as a Superego: Disclosure of Client Confidences to Prevent Harm," 70 Iowa L. Rev. 1091, p. 1132 4 - Dashjian, Michael B., 1982, "The Attorney-Client Privilege and the Criminal Defendant's Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1052-4 5 - http://www.cga.ct.gov... 6 - http://www.thenation.com...#