The Instigator
Kaalee
Pro (for)
Losing
0 Points
The Contender
Jevinigh
Con (against)
Winning
5 Points

In the US Justice System, Truth-Seeking ought to take precedence over Attorney Client Privilege

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Post Voting Period
The voting period for this debate has ended.
after 2 votes the winner is...
Jevinigh
Voting Style: Open Point System: 7 Point
Started: 3/13/2014 Category: Politics
Updated: 3 years ago Status: Post Voting Period
Viewed: 602 times Debate No: 49027
Debate Rounds (5)
Comments (0)
Votes (2)

 

Kaalee

Pro

The con will be taking the stance that ACP must always come before Truth Seeking. Neither side can take a stance that includes the other side. The first round will be acceptance and the second round we will present our cases. Third round will be rebuttal with allowance of new arguments. Fourth round will be rebuttal without new arguments and fifth round will be our summery. Any source can be used as long as you can link it or source it properly.
Jevinigh

Con

Attorney-Client Privilege is among the oldest recognized legal protections and constitutes an important part of our legal systems ability to function. I look forward to having this debate with you.
Debate Round No. 1
Kaalee

Pro

I thank Con for the acceptance

Before I begin, I will offer the following definitions and analyses.
The Oxford Dictionary defines Criminal Justice as apprehending, prosecuting, defending, sentencing, and punishing those who are suspected or convicted of criminal offenses. The role of the criminal justice system is to convict those found guilty. If the system isn't convicting guilty people, then the Criminal Justice System is no longer fulfilling its duties.
First, The Criminal Justice is focused on society. The CJS was intended to protect society as whole rather than focus on individual rights. Focusing on individual rights takes the emphasis away from truth seeking and the protection of society in general.
Secondly, Truth is beneficial for society. According to International center for transitional Justice 2013 "Establishing the truth about what happened and who is responsible for serious crimes helps communities to understand the causes of past abuse and end it. Without accurate knowledge of past violations, it is difficult for a society to prevent them from happening again. The truth can assist in the healing process after traumatic events; restore personal dignity, often after years of stigmatization; and safeguard against impunity and public denial. Establishing truth can initiate a process of reconciliation, as denial and silence can increase mistrust and social polarization. A political order based on transparency and accountability is more likely to enjoy the trust and confidence of residents and citizens." Establishing truth benefits society as a whole because it prevents violations from happening in the future, and restores dignity of the victims.

Now that definitions on my part are out of the way I will move into my arguments

I. Attorney Client Privilege hides the guilty and therefore harms the integrity of our system. According to Melanie B.R39;Leslie, Law Professor-Benjamin Cardozo School of Law, 2000,R39;"The Costs of Confidentiality and the Purpose of Privilege," 2000 Wis. L. Rev. 31, p. 31, (http://www.davis.k12.ut.us...)
"The contents of attorney-client communications are extraordinarily relevant N11;and reliable evidence.R39;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 privilegesR39;is a stark exception because itR39;conceals evidence that is highly reliable and probative. R39;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.R39;The privilege, therefore, enables clients to function effectively in the legal system. The price is the exclusion of relevant and reliable evidence." What this is saying is that the point of the attorney is to do whatever it takes to make sure their client isn't prosecuted, no matter if they are innocent or not. This makes a mockery of our legal system because instead of allowing all legitimate evidence in we are possibly letting guilty people go, which is the exact opposite of the definition of our legal system. By removing ACP we are allowing sound evidence into court that will make sure every person gets their rightful due.

II. Further, this system of truth seeking actually does work in our Justice system. According to Micheal L. Seigal in 2008
( http://www.bc.edu... )
"Over the four-year period from 2002 to 2006, federal prosecutors brought charges against more then 200 chief executive officers, company presidents, and chief financial officers, and obtained over 1100 guilty pleas in white collar cases. These are staggering figures, particularly in light of the tremendous resources traditionally needed to investigate and prosecute complex fraud. DOJ's newfound success in this area, however, was not accidental."
What this means is that by instigating a Truth Seeking system in fraud cases within America, we charged more guilty people than without it. If we were to implement this within the entire Justice System it's safe to assume we'd be convicting more guilty people.

III. It will not convict innocent people. This is just pure logic, because if they are innocent it means they aren't confessing anything illegal therefore it doesn't harm innocent people, only convicts guilty people.

IV. It does not violate our right to attorney as you still have an attorney. No where within the fifth amendment does it state you have right to attorney-client privilege, only that you have the right to an attorney's council which truth seeking does not prohibit. It only makes sure that all the facts that are out there are presented in court and therefore the defendant is given a fair trial.

Our status quo system isn't convicting the right people and the only way to make sure that it does is by implementing a system of Truth Seeking.

I look forward to hearing from Con. To you Con
Jevinigh

Con


" 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. " - The Free Legal Dictionary

In this debate, we are not debating the existence of the legal protection in its entirety but rather the priority which it should take in our legal system. How ever in order to better appreciate the nature of the legal protection before arguing its priority in detail, I will first defend the law existentially. It is important to understand that Attorney Client Privilege sits at the Crux of two diametrically opposed functions of the Legal system. (Personal note: I refuse to call the modern United States courts "Justice system" For reasons we can get into another time. ) Two-Very important forces are at work in the courts. The accused and his/her legal representative and the prosecutor, which is better referred to as the State. Between these two forces is a set of protections for the accused intended to protect the accused from over zealous courts and finally over these two sits the jury. Among these legal protections is most notably the IV and V amendment and though Attorney Client privilege is not the first legal protection that comes to mind-it is no less important.

Picture if you would, A world where the prosecuting attorney could at any time, summon transcripts of the interactions between an Attorney and an accused. For a moment, assume that this Protection was erased all together. Every question you asked... every concern you expressed to an attorney could scrutinized in Court. In such a world where this legal protection did not exist a defense attorney cannot forfill, with any effectiveness one of their most basic functions which is to provide sound legal advise. Further, such is the case that with out these legal protections a Defending attorney would serve as a defacto agent of the prosectuor in terms of fact finding.

Understand first and foremost that Anything you say can and will be used against you in the court of law, You CANNOT talk to a cop as an accused and receive a positive outcome nothing you say to an aresting officer under any circumstances will be used to your benefit, EVER. This is important to understand in context because a police office is not an Impartial party in the legal system, both arresting officer and prosecuting attorney as well as the judge represent the state. A police officer is not an attorney, they are not able to render legal advice, this much while it is obvious is no less important to establish as they are an agent of the state- like the prosecutor they are always against you and while the judge is litterally supose to be impartial, they too represent the state and in the vast majority of cases their careers where built on being prosecutors themselves.

Once again returning academic, we are assuming that Attorney Client privilege was stripped away entirely. In this world, a defence attorney now has a similar burden, while they are tasked with not just proving innocence in court but also rendering sound legal advice, in criminal and civil court alike. With out attorney client privilege anything you say to your attorney maybe used against you in the court of law. This, is chief among the reasons why such a legal protection Exists.

In the law as it exists today, Attorney client privilege is not all encompassing, that is there are exemptions and situations to which the Attorney Client Privilege does not apply. The most common exemptions that are not protected are as follows:

Disclosure to prevent a crime, tort, or fraud

The crime-fraud exception can render the privilege moot when communications between an attorney and client are themselves used to further a crime, tort, or fraud. In Clark v. United States, SCOTUS writes that "A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told." The crime-fraud exception also does require that the crime or fraud discussed between client and attorney be carried out to be triggered. US Courts have not yet conclusively ruled how little knowledge an attorney can have of the underlying crime or fraud before the privilege detaches and the attorney's communications or requisite testimony become admissible.
(Sourced from Wikipedia)

Disclosure ostensibly to support lawyer's own interests

Lawyers may disclose confidential information relating to the retainer where they are reasonably seeking to collect payment for services rendered. This is justified on policy grounds. If lawyers were unable to disclose such information, many would undertake legal work only where payment is made in advance. This would arguably adversely affect the public access to justice.

Lawyers may also breach the duty where they are defending themselves against disciplinary or legal proceedings. A client who initiates proceedings against a lawyer effectively waives rights to confidentiality. This is justified on grounds of procedural fairness—a lawyer unable to reveal information relating to the retainer would be unable to defend themselves against such actions.
(Sourced from Wikipedia)

Disclosure of information that is not confidential

Clearly, information that is not confidential does not fall under the duty of confidentiality. Disclosure of information that is already in the public domain does not breach the duty. Further, information that was not public knowledge at the time of the retainer agreement is not subject to the duty if it subsequently enters the public domain. Therefore, the purpose served by maintaining the confidence—the protection of the client—is arguably extinguished.

Nonetheless, the lawyer still owes a duty of loyalty, and clients may feel betrayed if such information is disclosed, even if it had become public knowledge. Though there are no legal ramifications for disclosure, discretion on part of the lawyer may be in the long term interests of maintaining the propriety of the legal profession.
(Sourced from Wikipedia)

Disclosure for the purpose of probate

Another case is for the probate of a last will and testament. Previously confidential communications between the lawyer and testator are no longer secret for the purpose of proving the will is the intent of the now deceased decedent. In many instances, the will, codicil, or other parts of the estate plan require explanation or interpretation through other proof (extrinsic evidence), such as the attorney's file notes or correspondence from the client.

In certain cases, the client may desire or consent to revelation of personal or family secrets only after his or her death; for example, the will may leave a legacy to a paramour or a natural child.

Courts have occasionally revoked the privilege after the death of the client if it is deemed that doing so serves the client's intent, such as in the case of resolving testamentary disputes among heirs.
(Sourced from Wikipedia)



With these exemptions in mind, adequate balance already exists between the legal system's ability to function and the individual rights of an accused. It is critical first and foremost to understand that legal system is devoid by design of compassion as a concept. The state is never on your side as a defended and the prosecutor cannot ever be of assistance to an accused. I remind you further that in the court the state is represented in the prosecutor, The judge and the arresting officer(s). To counter this, the accused has only their legal protections and their representative to defend them.

The defence rests. ;)
Debate Round No. 2
Kaalee

Pro

Kaalee forfeited this round.
Jevinigh

Con

Pro has Forefeited this round.
Debate Round No. 3
Kaalee

Pro

Kaalee forfeited this round.
Jevinigh

Con

I am disappointed that Pro has forfeited this debate.
Debate Round No. 4
Kaalee

Pro

Kaalee forfeited this round.
Jevinigh

Con


Thank you for the one round debate.
Debate Round No. 5
No comments have been posted on this debate.
2 votes have been placed for this debate. Showing 1 through 2 records.
Vote Placed by cbcullen84 3 years ago
cbcullen84
KaaleeJevinighTied
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Total points awarded:04 
Reasons for voting decision: Disagree with the premise that the act of seeking truth should take precedence over a citizen's right to effective legal counsel. Tied in all areas but conduct and convincing arguments. Con provided sound logic (Although solidly established already) to support her arguments and upon study of the argument text there stands evidence to convince the reader of her position being legitimate beyond reasonable doubt. Convincing arguments to Con. Pro forfeited the debate without saying anything...something she's making a habit of as she already did this to me once before, bad form, conduct to Con.
Vote Placed by The_Scapegoat_bleats 3 years ago
The_Scapegoat_bleats
KaaleeJevinighTied
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Total points awarded:01 
Reasons for voting decision: Forfeiture. I would, however, have given points for arguments, too, but would consider it in vain for a forfeited debate.