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

First off. However, it is not difficult for me to respond that I do not have to win that ï¿½€""objective truthï¿½€ï¿½ is possible to win that having more information improves decision-making ability. For a simplistic example, when choosing what to order for dinner between two options you have never tasted before, you might not be able to determine with flawless accuracy which dish you would prefer prior to tasting them, but knowing information such as what ingredients they contain will doubtlessly improve your chances of making a good choice. Similarly, the courts system will always be fallible, but increasing the quantity and quality of testimony reduces the chances of mistakes.51% of the population agrees with me. Here is what some people have to say.""This is a story about an innocent man who languished in prison for 26 years while two attorneys who knew he was innocent stayed silent. Alton Logan was convicted of killing a security guard at a McDonald's in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder. Now new evidence reveals that Logan did not commit that murder, something that was not new to those two attorneys, who knew it all along but say they couldn't speak out until now. Attorneys Dale Coventry and Jamie Kunz knew Logan was innocent. And they knew because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald's - the crime Logan was charged with. The problem was that the killer was their client. So, legally, they had to keep his secret even though an innocent man was about to be tried for murder."I know that I would hate it if one of my loved ones was put in jail for 26 years for something they did not do. This story illustrates how Attorney Client Privilege takes away our freedoms." "I think so The truth provides the only way to pure justice, and the most efficient route to justice would be the path with the most truth. That is why we need to prioritize the truth. In the resolution it says to "take precedence" which means that instead of changing the ways of truth-seeking we could change the attorney client privilege itself, and it is exactly that, a privilege, not a right. So the government could potentially regulate it so as to create exceptions so that we find the most efficient route to justice." "The social contract demands justice All societies are formed around the social contract. All social contract theories are based off of the idea that the people will give up certain rights, to an extent, in order for the government to protect the populace in some way. The mechanisms for a government to uphold its end of the social contract are its laws. However, for laws to mean anything, they must have authority, meaning that if someone breaks a law, they must be punished, otherwise it would be as if no laws existed at all. The mechanism is simple, but its implementation is difficult. Modern jurisprudence, including attorney client privilege, makes it substantially more difficult for the guilty to be convicted, causing a net decrease in the number of correct verdicts. In these circumstances, the law is not upheld, and the guilty go free, undermining the authority of the law in the process, and, by extension, the social contract itself is undermined." Read more of these @ http://www.debate.org... Melanie B. Leslie, Law Professor-Benjamin Cardozo School of Law, 2000, "The Costs of Confidentiality and the Purpose of Privilege," 2000 Wis. L. Rev. 31, p. 31 Consequently, the contents of attorney-client communications are extraordinarily relevant and reliable evidence. If the point of litigation is to deduce the truth, why exclude attorney-client communications? Most evidentiary rules further the search for truth. Hearsay is excluded as unreliable, character evidence as unduly prejudicial. The law of privileges is a stark exception because it conceals evidence that is highly reliable and probative. We tolerate attorney-client privilege because we suppose that without it, fear or ignorance would cause clients to omit, slant, or falsify information when consulting attorneys. Perhaps unwittingly, clients would forfeit the opportunity to obtain sound legal advice. The privilege, therefore, enables clients to function effectively in the legal system. The price is the exclusion of relevant and reliable evidence. The privilege even excludes evidence that is related to, but not necessarily a part of what is covered in by the privilege Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 67 The protection afforded by the attorney-client privilege and other unqualified evidentiary privileges is distinguishable from the protections afforded by other evidence rules that operate to exclude - e.g., hearsay, opinion evidence, and character evidence restrictions " in two respects. First, privileges not only prevent the use of protected communications at trial but also prohibit adverse parties from gaining access to such communications, even if they contain otherwise relevant information. Privileges protect communications by both parties and non-parties from discovery and other forms of compulsory disclosure. Thus, unlike other legal doctrines classified as evidentiary rules, privileges protect against discovery of relevant information. Of course, the attorney-client privilege does not protect underlying facts or information, which can be discovered through means other than disclosure of the attorney-client communication. Second, the testimonial privileges, including the attorney-client privilege, are unlike other exclusionary rules because they are not designed to assist in finding the truth by excluding evidence which is unreliable or likely to be unfairly prejudicial or misleading. To the contrary, privileges have the effect of inhibiting, rather than facilitating, the illumination of the truth. Privileges serve to protect other interests that are regarded as sufficiently important to warrant limiting access to relevant evidence. And truth seeking has always had a very high priority in the criminal justice system. Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice: Why Our Legal System Fails to Do What"s Right, p. 87-8 With this essentially immoral, albeit perfectly legal arrangement, we have surrounded ourselves with lies, and locked ourselves up within a system that perpetuates further lies. Our jails are filled with people who are incarcerated for all the wrong reasons, a miasmic haze of generalized guilt" unspecified and totally disconnected from the actual events themselves. They sit in jail, and the story of what happened sits with them. And no one seems to care, as long as jails have low vacancy rates. We have bargained away the sanctity of truth for the certainty of a jail sentence. Indeed, the official courthouse records of criminal dispositions are distorted, because they reflect false punishments. A rape is reduced to an assault. Something that is felonious suddenly, magically, becomes merely mischievous. A first-degree offense is lessened to a crime with a lower degree of culpability, stripped down to something less ominous"and less true. We are all ultimately the unwitting victims of a system that subordinates truths to its narrow vision of justice. But isn"t justice all about discovering the truth? Moral and historical justice can"t be accomplished without knowing what happened. This is what people assume courthouses are for: truth-telling, truth-seeking, justice embodied in the very nature, and in all the delicate nuances, of truth itself. In fact, it seems to be the central purposes of the judicial system. Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 10-1 With regard to the need for candour, it is hard to find a better judicial statement of the principle than that of Sir James Knight Bruce V-C in the early Victorian case of Pease v Pease. "The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not very channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination"Truth, like all other good things, may be loved unwisely"may be pursued too keenly " may cost too much. And surely the meanness and the mischief of prying into a man"s confidential communications with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself." And without it, the moral foundation of the law collapses. Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice: Why Our Legal System Fails to Do What"s Right, p. 103 Clearly, if justice has any moral legitimacy, it has to reveal truths, and there has to be an integrity to the way in which those truths are discovered. But when lying is tolerated and is seemingly permissible, then the legal systems shows itself to be unworthy and unjust. Nothing thwarts truth more than lying witnesses. It undermines any sense of justice, and shows the law to be a sham. Lying is worse than the mere risks associated with the adversarial process. It"s one thing to accept that the opposing side"s trial strategy was superior. It"s quite another to realize that the outcome would have been different had a witness simply told the truth. Public faith in the legal system will also collapse unless it remains committed to truth seeking. Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice: Why Our Legal System Fails to Do What"s Right, p. 17 The law is inured to these practical realities of providing justice. The public, however, finds this situation intolerable, and it contributes to a kind of moral revulsion toward the legal system for its complacency about discovering the truth. Two parties come before the law, each telling a different story. Which story is true, or is there yet another story that approximates the truth more accurately? The public needs to believe that the law can reveal the truth"that it even cares about the truth " as much as it needs to believe that the law can punish offenders and resolve conflicts. But on this treadmill toward resolution, the truth loses traction"the zeal for finality overrides the truth behind the story. This failure to distinguish facts from truths " what many believe ought to be the law"s central aim"is one source of hostility that artists have long directed at the legal system. How can the law be anything if it"s not about establishing the truth? And why should the public have faith in an institution that professes to be about truth but then delivers a brand of justice that ends up undermining and subverting the truth? Some proponents of the privilege argue that abandoning the privilege will discourage people from seeking legal advice, but this is not empirically proven. Edward J. Imwinkelried, Law Professor-U. Cal Davis, 2002, "The Historical Cycle in the Law of Evidentiary Privileges," 55 Ark. L. Rev. 241, p. 254-6 of Wigmore"s treatise, there have been a number of studies on the effect of the attorney-client and psychotherapist-patient privileges. It is certainly dangerous to extrapolate from the available data, because there have been only a few handfuls of studies. However, the findings in the studies are relatively uniform. The researchers have fairly consistently found that: Even absent a privilege, only a small minority of laypersons would be deterred from consulting the professional; without a privilege, perhaps a significant minority of the laypersons would be somewhat more guarded in their communications, particularly written communications, with the confidant; but the vast majority of laypersons would still consult and communicate with their confidants to roughly the same extent. On reflection, these findings should not come as a surprise. As Professor Paschal pointed out in the Senate hearings on the proposed Federal Rules of Evidence, most laypersons communicating with confidants are engaged in primary, pre-litigation activities. Typically, at the time of the communication they have little or no concern about subsequent litigation. Moreover, they often have strong, even impelling, reasons to communicate. For example, if a patient is in intense pain or fears that he or she is dying, the patient is likely to disclose any information requested by the physician regardless of the existence vel non of a medical privilege in that jurisdiction. And even if it is true that abandoning the privilege will discourage some from seeking legal advice, only those who are guilty would be discouraged from doing so. The innocent have nothing to hide. Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require Disclosure, p. 61 Bentham, along with some early common-law judges, complained about the immoral impact of the rule of privileged communications, in much the same language as modern conservatives who chide the criminal-justice system for being a game of chance more than a search for truth. If the guilty client is deterred from seeking legal advice (a false defense), the argument goes, there is no harm to justice; the innocent client has nothing to fear, so won"t be deterred. A related argument of privilege advocates is that the privilege is important for attorneys to provide effective representation, but there is no actual evidence to support this claim. It"s just asserted. Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require Disclosure, p. 64-5 Professor Imwinkelried"s exhaustive examination of the philosophical underpinnings of the attorney-client privilege concludes that the instrumental rationale, although the majoritarian view over time, was based on anecdotal, self-serving, and empirically unsupported proof. The relatively few recent (1960, 1980) studies on the causal relation between clients" disclosures to attorneys and the assurance of a later privilege are inadequate and exaggerated, and thus misplaced, Professor Imwinkelried concludes. That said, he does not question the overall wisdom of the rule, only the rationale for it. Others have questioned the rule"s wisdom, noting that criminal defense attorneys invariably do not want clients to be totally open with them, fearing that if they (the attorneys) know about guilty conduct, they may be prevented from pursuing avenues of defense. And given how inconsistently the privilege is applied to protect evidence, it is just not that critical to providing effective representation. Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 85-7 In order for privilege protections to be reasonably certain to a competent attorney looking forward from the time of the communication, the protections must satisfy at least three conditions. First, the scope of the protection that the privilege affords must be clear: confusing, ambiguous, or flexible privilege standards do not offer predictable protection. Second, reasonably certain protections must be generally " or at least predictably " applicable. The attorney must have confidence that protections will apply regardless of the forum " state, federal, or nonjudicial " and the nature of the proceeding or substantive claims that ultimately give rise to assertion of the protections. Finally, privilege protections remain wholly uncertain if they are qualified or otherwise subject to post hoc abandonment or revocation. The current privilege regime fails to satisfy each of these conditions in many circumstances. There is a substantial amount of confusion over a number of fundamental aspects of the attorney-client privilege. Indeed, there are numerous, lingering ambiguities and unresolved doctrinal issues within particular jurisdictions. In addition, there is no guarantee that the privilege protections afforded in one jurisdiction, forum, or type of proceeding will apply in another. To the contrary, there is no generally applicable set of privilege rules and, perhaps surprisingly, limited convergence on key aspects of attorney-client privilege doctrine. These significant inter-jurisdictional conflicts in the law, combined with varying and often unpredictable governing choice-of-law principles, result in uncertain protections. Moreover, modern business, litigation, and conflict resolution practices make it increasingly difficult for an attorney to predict, at the time of a communication, whether the allegedly privileged status of the communication will be challenged in a particular state or federal court, in a proceeding governed by state or federal privilege law, or in a nonjudicial forum, such as arbitral, regulatory, or congressional proceedings. Finally, in many circumstances, privilege protections are tentative or qualified: substantive privilege doctrine sometimes allows decision makers to override, abrogate, or ignore privilege protections, while at other times, attorneys or their clients waive the privilege permanently by involuntary disclosure or by stumbling into one of the traps for the unwary lurking below the surface of apparent protection. Thus, the protections that the modern privilege affords often are uncertain. The story of the uncertainty in today"s privilege most appropriately begins in the early 1970s, when Congress had a real opportunity to provide national leadership on privilege doctrine but chose not to act. Congress had its reasons for not taking the lead a quarter century ago, but, in hindsight, its inaction ultimately was a major cause for the current, intolerable state of privilege doctrine. Since then, continuing disagreements among state and federal jurisdictions, judicial inattention, flawed judicial policy making, and changing economic, litigation, and dispute resolution practices have contributed to the problem. The failure of the privilege to facilitate attorney client communications undermines the entire utilitarian rational for the privilege Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 73-4 The utilitarian justification for the attorney-client privilege is premised on the assumption that providing protection for attorney-client confidences will enhance client candor or, at a minimum, foster greater attorney-client communication. Although most courts, practitioners, and commentators accept this assumption outright, it is both disputed and empirically unverified. Skeptics therefore remain, even though most aspects of the modern privilege " including the corporate privilege " are almost certainly here to stay. Despite the lingering controversy, the privilege cannot enhance candor or communication if the protection it affords is uncertain. Thus, for society to reap benefits from the privilege, it must afford sufficiently certain protection for attorney-client communications. And since the privilege prevents attorneys from disclosing information, it potentially violates free speech. Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L. Rev. 351, p. 354 Moreover, it is whimsical to assume that strict rules can remain free from legal attack. Forbidding lawyers to disclose information they feel morally obligated to reveal implicates serious free speech interests. Since the Supreme Court explicitly recognized lawyers" first amendment rights in the early 1970s, attorneys have mounted prospective legal challenges to many speech-restrictive ethical rules that previously seemed immune. A challenge to strict confidentiality is likely to turn on the nature of the empirical evidence for and against a bar"s justifications for its rule. The availability of relevant data will prove important to proponents and opponents of confidentiality exceptions alike.