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

== Resolution == I agree with all of my opponent's definitions, save one. "Truth-seeking" does not take on a special meaning merely because it is hyphenated. It is hyphenated to make clear that truth is the object -- not the subject -- of the word "seeking." I accept my opponent's definition from Merriam-Webster's that "truth-seeking" means the "search for (something)" that is "real or genuine." Lastly, some resolutional analysis. For truth-seeking to "take precedence" over the attorney-client privilege, whenever the two come in conflict, my opponent has to argue that truth-seeking should prevail. Because in a court-room setting, we are *always* seeking the truth, in practice, there would be *no* attorney-client privilege because truth-seeking would *always* take precedence. Thus, my opponent has the burden to prove that the attorney-client privilege should be abolished. == My case == 1) Rights of the accused The Fifth and Sixth Amendments to the Constitution acknowledge a basic aspect of human dignity: it doesn't *just* matter *that* you convict people of crimes, but it matters *how* you do it. Beating a confession out of someone is not permitted. Breaking into someone's house to search for evidence while he is away is not permitted (without a warrant). Throwing someone in jail without a trial is not permitted. Likewise, forcing someone's lawyer to testify against him is *also* not permitted and is the subject matter of today's debate. The attorney-client privilege is an evidentiary privilege which holds that any conversation between an attorney and client is not admissible in court. Without it, a defendant's lawyer would always be called to testify and tell the jury *everything* that his client told him. There are two implications to this: First, without the attorney-client privilege, no one would trust their lawyers. The American Bar Association explains, "The relationship between lawyer and client is in many respects like that between priest and penitent. Both lawyer and priest are bound by the bond of silence . . . Proper representation of a client calls for full disclosure by the client to his lawyer of all possibly relevant facts, even though such facts may be the client's commission of prior crimes . . . To encourage full disclosure, the client must be assured confidentiality. Frequently, clients have a disposition to withhold information from lawyers. If the client suggests that his confidences will not be adequately protected or in some way be used against him, he will be far more likely to withhold information which he believes may be to his detriment or which he does not want generally known." [1] Without trust in lawyers, lawyers could not mount an effective defense. The court in People v. Belge explained, "Our system of criminal justice is an adversary system and the interests of the state are not absolute . . . A trial is in part a search for truth, but it is only partly a search for truth. [It is also about fairness to the accused, which includes a right to effective assistance of counsel]. The effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship. If the lawyer cannot get all the facts about the case, he can only give his client half a defense. This of necessity involves the client telling his attorney everything remotely connected with the crime." [2] Ultimately, in People v. Belge, the attorneys decided that their client should confess not only to the crime he was accused of, but also to other as-yet undiscovered crimes in order to plead the insanity defense. The insanity defense in particular requires that clients are able to be forthcoming about past crimes with their attorneys. Without an attorney-client privilege, people are effectively denied counsel because they cannot be forthcoming and truthful with their lawyers and are denied *effective* assistance of counsel, which is a core part of the right to counsel (as the Supreme Court explained in Strickland v. Washington). For the Sixth Amendment guarantee of the right to counsel to mean *anything*, it must include the right to speak candidly with counsel. The criminal justice system is undermined by forcing attorneys to testify against clients from the optics alone: it looks bad. It looks like the state coercing someone you trusted to testify against you. The right against self-incrimination [Fifth Amendment] is also implicated. If people tell their lawyers something in confidence and then the state compels their lawyer to testify against them, they are effectively compelled by the state to provide the very testimony that will convict them (through the conduit of the attorney). In addition, if the lawyer *does* testify against them, clients are *forced* to take the witness stand (even if they don't want to) to explain or contradict what the lawyer said. This compels testimony against yourself. 2) Not effective and counter-productive Abolishing the attorney-client privilege would do nothing because attorneys would simply advise their clients *not* to tell them anything because they can and likely will be compelled to testify at trial against their client. In fact, a failure to advise a client in this way would be *malpractice* if the attorney-client privilege were abolished. Lawyers will simply ensure that their clients tell them nothing. Thus, abolishing the privilege *does not* enhance truth-seeking, but merely denies fundamental rights to the accused. In addition, we *want* people to tell their lawyers everything. Lawyers are allowed under the new ABA rules [Rule 1.6] to warn people who are in imminent danger from their client. If a client tells a lawyer that he kidnapped someone and where the victim is (still alive), the lawyer can go tell the police. The ABA rules prioritize *safety* over *confidentiality.* The communication is still privileged (not admissible in court), but it is not "confidential" (meaning the ethics rules allow the lawyer to disclose it). If the privilege rules are abolished and lawyers are effectively required to instruct their client not to tell them *anything*, then in fact, no one *will* tell their lawyers anything, which means we lose out on opportunities to allow lawyers to protect people from their clients. == Rebuttal == My opponent never shows why truth-seeking should always take precedence over the attorney-client privilege. He offers a lot of definitions, but never gives a concrete example of when or why truth-seeking should trump the privilege. In addition, even with the privilege intact, truth-seeking is still possible. In the current criminal justice system, defendants are found guilty every day. The whole point of having a police state with broad investigative powers and prosecutors devoted to convicting criminals is to ensure that we can uphold the truth-seeking function of the criminal justice system. The state has *a lot* of power. The only thing that protects the lone defendant from the vast power of the state is the defense attorney. And with the defense attorney hamstrung by privilege rules, there is almost nothing protecting the defendant at all. The state has enough advantages and tools in its toolbox to ensure that it can put on its case in court. The state should not have to rely on back-doored self-incriminating testimony by forcing an attorney to testify against his client. The prosecution can already: run various forensic tests, compel other witnesses to testify against you, search your home, and subpoena your computer and any documents you possess. They don't also need to force your lawyer to testify against you. [1] Zitrin et al, Legal Ethics and the Practice of Law, page 123 [2] same source, pages 121-22