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In a court of law, finding the truth is more important than attorney-client privilege

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Voting Style: Open Point System: 7 Point
Started: 11/17/2013 Category: Philosophy
Updated: 2 years ago Status: Post Voting Period
Viewed: 1,501 times Debate No: 40721
Debate Rounds (5)
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This is based on the November/December Lincoln Douglass Topic, but will be conducted in a much more relaxed way. There is no need for a Value/Value Criterion, and definitions can be agreed upon beforehand. This is meant to argue content, not fret over definitions and observations. Evidence is optional.

The rounds will commence as follows:
Round 1: Acceptance
Round 2: Opening Speech/Questions for the opponent
Round 3 and 4: Rebuttals (no new content after round 2; you have plenty of time and space to get all ideas on the table in the beginning of the debate)
Round 5: Crystallization

I await acceptance, and wish my opponent good luck.


November/December"Sadie Elbert"Affirmative
Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.
For the sake of clarity within the round, I provide the following definitions:

"Criminal justice system is, according to the People"s Law Dictionary, "a generic term for the procedure by which criminal conduct is investigated, arrests made, evidence gathered, charges brought, defenses raised, trials conducted, sentences rendered, and punishment carried out."
"Justice is, according to Merriam-Webster, "conformity to truth, fact, or reason," and "the process or result of using laws to fairly judge and punish crimes and criminals."
"Attorney client privilege is, according to West"s Encyclopedia of American Law, "In the law of evidence, a client's privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications between the client and his or her attorney. Such privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. That privilege that permits an attorney to refuse to testify as to communications from the client. It belongs to the client, not the attorney, and hence only the client may waive it. In federal courts, state law is applied with respect to such privilege."
"Legitimate is, according to Merriam-Webster, "being exactly as purposed."

My value for the round is justice because all other values collapse back into justice.

There are two warrants to this.

1.All democratic governments seek to be just. The values of the US criminal justice system are embedded in a system of democracy, and the reason we value democracy is because it leads to justice.

2.Evaluations of good are questions of justice.

Moreover, we value justice even if we can't establish a perfect conception of justice. We can at least agree to minimize terrible injustices. People, as well as the United States" Criminal Justice System, inherently value justice.

Legal expert Alan M. Dershowitz explains.

Dershowitz states:

"What constitutes perfect justice remains debatable among decent and intelligent people today, but no such people would debate the injustice of the Holocaust. We have seen injustice and we now know it, even if some did not know it at the time it was being perpetrated. in seeking to prevent recurrence of grievous wrongs, we need not limit ourselves to combating perfect injustice. It is enough to recognize serious injustices that are down-to-earth, real, and generally produced by imperfect human beings. Moreover, the need to reduce it is practical and immediate. It is enough to agree on what constitutes the kinds of injustices that are sufficiently wrong to occasion a system of rights designed to prevent their recurrence. Seeking to achieve the perfect is the enemy of trying to prevent the very bad."

In order to achieve justice I offer the criterion of upholding a legitimate justice system. The criminal justice system needs to be seen as legitimate, for it to be upheld. The criminal justice system requires fairness because it derives practical value by generating societal perceptions of fair enforcement and adjudication. The perceptions of procedural fairness result in perceptions of the system"s "legitimacy."

There are three warrants to the value criterion.

1.A system must fulfill its function or purpose, otherwise it is not legitimate.
There is no point in any government or sect of government unless it does what it is purposed to do. Thus, as anything, the criminal justice system must have legitimacy.
2.The purpose of the criminal justice system is justice.
3.For justice to be fulfilled, there must be truth.
Without truth, there is no justice. Since criminal justice refers to penalties on those who have actually done wrong or broken the law, all non-truths are excluded from its function.

1. Attorney client privilege negates the purpose of the criminal justice system.
A.Attorney client privilege inhibits truth.

The foundation of justice is truth, as something cannot be just unless it is determined by the truth. It is not only the criminal justice system"s purpose but the believed purpose of the people as well. William Otis, Adjunct Professor of Law at George Mason University explains.
Mason states:
"The reason our system has been more or less successful is that people have been willing to trust it to bring them justice. But they will trust it less as they see the decay in its ability to produce, truth-based outcomes without which there is no justice."
There is undoubtedly decay, as Clinical Professor of Law at the University of Wisconsin, Keith A. Findley says.
Findley states:
"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. competing litigants, control everything from the investigation to presentation of the evidence, 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."
Since truth is required in order for there to be justice, both Otis and Findley show the inhibiting nature of attorney client privilege, Otis through backing the necessity of truth and Findley through showing the faultiness of the criminal justice system when mistakes are made due to the lack of truth.
B.Truth supersedes attorney client privilege.

Even now, as the resolution is discussed, attorney client privilege does not precede truth.

Adjoa Linzey, Associate of the DLA Piper"s International Trade Practice Group, explains.

Linzey states:

"The attorney client privilege is not absolute since it impedes full and free discovery of the truth. The Supreme Court notes that "testimonial exclusionary rules and privileges contravene the fundamental principle that "the public has a right to every man"s evidence." As such, the privilege must be strictly accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."""
While attorney client privilege is utilized, it is not prioritized. As the system itself sets its own standards for what is just and what its function is, it must be held to that standard. If attorney client privilege interferes, then truth supersedes it.
C.Attorney client privilege doesn"t allow for a fair procedure in court.

Only truth seeking can prevent these wrongful conviction. Truth is not revealed to provide effective representation in attorney client privileges. Attorney Ronald Goldfarb explains.

Goldfarb states:

" Imwinkelried's exhaustive examination of the philosophical underpinnings of the attorney-client privilege concludes that the instrumental rationale, was based on anecdotal, self-serving, and empirically unsupported proof. R39;The relatively few recent (1960, 1980) studies on the causal relation between clients' disclosures to attorneys and the assurance of a later privilege are R39;inadequate and exaggerated. R39;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 know about guilty conduct, they may be prevented from pursuing avenues of defense."

2.Truth-seeking will protect the innocent.

The primary goal of the US criminal justice system is to protect the innocent. In order to do so the procedure must include knowledge of true facts of the case to proceed. Former Dean of the School of Social Ecology at UCL C. Ronald Huff explains.

Huff states:

"Most of those who have addressed the problem of wrongful conviction have come away convinced that it is not a rare phenomenon. Radin (1964: 9) cites that there might be as many as 14,000 cases of false conviction in the United States in a given year. At the time this estimate was made, it would have represented a 5% error!"

This is unfair to the innocents. These wrongful convictions are a result of falsity. These wrongful convictions will cause the public to see the criminal justice system as illegitimate.

For these reasons, I strongly affirm.
Debate Round No. 1


In the spirit of a Lincoln-Douglass Debate, I shall first present my case before moving on to my opponent's case.

"Everything we hear is an opinion, not a fact. Everything we see is a perspective, not the truth." These are the wise words of Roman emperor and philosopher Marcus Aurelius. What we hear, when put in certain contexts, can make ideas completely different from the original. This is why the United States criminal justice system has been refined for the few hundred years it has existed. Attorney-client privilege, as i will soon explain, is a necessity.

Before moving on, I would like to state that I agree with the definitions presented by my opponent, and would like to bring an additional one to the table:
Utilitarianism (according to Merriam-Webster Dictionary) is the belief that a morally good action is the one that benefits the greatest number of people.

The value I will be using for this debate will be Justice. As my opponent stated, we all have different definitions of justice that have the same purpose (to prevent injustices), so I will set my case apart by using the value criterion of Utilitarianism to support said value. The purpose of justice as used by the US justice system is to ensure that all sides are fairly treated (i.e. the most people on both sides get the most good), thus it would be fair to see that improvements that have been made to the criminal justice system were in the name of utilitarianism.

The main point I have is that attorney-client privilege does not negate the truth or the action of truth seeking. The purpose of attorney client privilege is not to withhold truth altogether, but to delay the truth until the consent of the accused. Logically, by looking at the fact that all in court are sworn to tell the truth, the whole truth, and nothing but the truth, it stands to reason that the whole truth will get out at some point. Any competent lawyer will see to that. But in a court of law, just like in a debate, presentation is everything. The prosecutor and the attorney both give the court the truth. What each side presents is a perception of that truth (going back to Marcus Aurelius) that wins over the presentation of the other side (much like what will happen in this debate--both myself and my opponent speak the truth).

What does attorney-client privilege do then, you may ask, if it does not hinder the truth? It provides a fair playing field. The courtroom, as I have said before, is built on utilitarianism. We have refined it for hundreds of years, and this practice is one of the oldest in the book (dating back to the reign of Elizabeth I). The original purpose of the privilege was to prevent the attorney from testifying against the client (it negated the loyalty between lawyer and client), but has since been used to concern legal advice and what shady activities to tell about. When talking about a court that is only about one specific crime, then we can see attorney client privilege actually keeps the trial relevant and on topic. Thus, providing a fair playing field.

A quick side note I would like to insert is that this isn't the only improvement the criminal justice system has made in the name of utilitarianism. Justice has not been properly served if one side had a clear advantage over the other. Thus, after several Supreme Court cases, we have made a fair system (that may still be improved in the future). A big example of this is Gideon v Wainwright, in resulted in the state being required to provide an attorney for those who could not afford it (thus providing justice to more than just the upper class and those on the high end of the middle class).

With that, I negate this resolution. Now, I will move on to my opponents case and end with some questions for my opponent.

First, addressing her value of Justice and value criterion of legitimate criminal justice, I actually have a question of clarification: from what she has said, she seems to be using cyclical logic and basically saying she is supporting justice with justice. In the spirit of fairness, I would like clarification, particularly on the criterion, before attacking those two. Moving on...

Her sub-point A stated that there was no truth in attorney-client privilege, supporting it with logic that if the truth is withheld, there is no justice, because truth requires justice. However, as I have stated in my case, I disagree; the truth always comes out, therefore there is nothing being withheld, rather delayed. I would also like to point out that this contention infers she would rather we get rid of attorney-client privilege because of how information is withheld, even temporarily. This would lead to a slippery slope that leads to the criminal justice system being reduced to justice of the mob, or perhaps a witch hunt. I say this because if we were to get rid of attorney-client privilege, what would be next? The fifth amendment protects the accused from testifying against themselves, and thus can hinder us from finding the truth. Shall we get rid of that as well? There are several rules in the criminal justice system that level the playing field by providing the option of withholding information. If we get rid of those, what will we have left?

Her sub-point B stated that the truth supersedes attorney-client privilege. I ask for clarification for this as well, but based on her tag line I infer that she states the resolution is already true. However, just because it is true now, doesn't mean it has to be. Thus, she so far has not upheld any burden of proof. Again, I ask for clarification on this before continuing.

Her Contention 2 stated that truth-seeking protects the innocent, and she followed this up with a statistic of our criminal justice system's yearly rate of wrongful convictions. However, she stated that this was caused by falsity without stating how or why. I would like to point out that the outcome of a court case depends on the lawyers participating, thus wrongful convictions are actually caused by competent lawyers (or incompetent lawyers, depending on the situation).

A final parting question I would like to ask my opponent is this: if we were to rid ourselves of attorney-client privilege, what shall we do to ensure a fair court system?

And thus, I negate this resolution and wish you all good night, and good luck.


WriterSelbe forfeited this round.
Debate Round No. 2


Because my opponent has failed to respond, I shall hold off on any statements concerning any arguments. I hope my opponent will respond soon.


WriterSelbe forfeited this round.
Debate Round No. 3


scgates forfeited this round.


WriterSelbe forfeited this round.
Debate Round No. 4


scgates forfeited this round.


WriterSelbe forfeited this round.
Debate Round No. 5
4 comments have been posted on this debate. Showing 1 through 4 records.
Posted by scgates 2 years ago
Sounds good. Good luck.
Posted by WriterSelbe 2 years ago
Definitions are in case for mine. You can post opposing definitions if you feel the need. Sound good?
Posted by scgates 2 years ago
Sure, that sounds fair. Any definitions we should agree on beforehand or is everything pretty straightforward?
Posted by WriterSelbe 2 years ago
Do you want me to post my case first round so that it functions like a real LD debate?
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