The Instigator
debatability
Pro (for)
Losing
3 Points
The Contender
bsh1
Con (against)
Winning
11 Points

In the USCJS, 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 4 votes the winner is...
bsh1
Voting Style: Open Point System: 7 Point
Started: 5/5/2014 Category: Politics
Updated: 3 years ago Status: Post Voting Period
Viewed: 1,516 times Debate No: 54101
Debate Rounds (3)
Comments (10)
Votes (4)

 

debatability

Pro

This is for Lincoln Douglass debaters only!! Please don't accept if you're going to forfeit.
Round 1: Affirmative Constructive, Negative Constructive
Round 2: Affirmative Rebuttal, Negative Rebuttal
Round 3: Affirmative Voting Issues, Negative Voting Issues
Note: I realize that in a real Lincoln Douglass debate, the negative does not speak last, but since this is a written debate, the negative can present their voting issues and attack mine in the last speech.

Truth-Seeking Precedence over Attorney-Client Privilege- Affirmative Side

I agree with Elie Wiesel when he said, "There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest." Therefore I affirm the resolution which states resolved: In the United States Criminal Justice System, truth-seeking ought to take precedence over attorney-client privilege.

I offer the following definitions:
United States Criminal Justice System- system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing, and punishing those who are suspected of convicted of criminal offenses (Oxford)
Truth-Seeking- Trying to get or achieve the real facts about something. (Webster)
Ought- moral obligation (Webster)
Precedence- the conditions of being more important than someone or something else and therefore coming or being dealt with first (Webster)
Attorney-client Privilege- The attorney-client privilege secures the client from potential sensitive information being disclosed to other people. The law requires that the attorney does not reveal any communications or letters between him/her to his/her client or any third party. (The Law Dictionary)

Utilitarianism- a doctrine that the useful is the good and that the determining consideration of right conduct should be the usefulness of its consequences; specifically: a theory that the aim of action should be the largest possible balance of pleasure over pain or the greatest happiness of the greatest number (Webster)

My value for this round will be justice which is important because the United States Criminal Justice System"s goal (as the name implies) should be justice. According to dictionary.com, "Justice is the process or result of using laws to fairly punish crimes or criminals." When truth-seeking takes precedence over attorney-client privilege, justice is achieved. This is because truth is the key to justice. Without the truth, a large amount of evidence goes missing; evidence that could be used to provide a more accurate verdict goes away and criminals are not fairly punished.

My criterion for this round will be utilitarianism. This criterion is important because truth-seeking provides satisfaction to the majority of United States citizens. When truth-seeking is not put first in the justice system, a large amount of valuable evidence goes to waste; therefore various crimes and criminals cannot be fairly punished. On the other hand, with truth-seeking taking precedence over attorney- client privilege, the verdict is more accurate. The majority of United States citizens will be happy with just verdicts, thus achieving utilitarianism. This criterion achieves my value premise because when criminals are fairly punished, justice is achieved.

Contention One: The goals of the United States Criminal Justice System (USCJS) are upheld when truth-seeking is put above attorney-client privilege.
As shown in the Presidents Commission on Law and Enforcement, there are two goals: preventing and controlling crime, as well as protecting the innocent. Preventing and controlling crime becomes difficult when attorney-client privilege takes precedence over truth seeking. While a client may already be proven guilty, they could give there attorney information about not only their crimes, but other criminals they know of and have maybe even worked with. If the attorney has to keep this information in confidence, then crime certainly isn"t going to be prevented and controlled as it should. Truth-seeking keeps many criminals off the streets. Also, without seeking the truth, the innocent are not always protected. If an individual has not yet been convicted, attorney-client privilege hinders the criminal justice system because valuable evidence that could prove the right criminal guilty is kept in confidence. In C. Ronald Huff"s book, Convicted but Innocent, a study claims that over 10,000 innocent criminals are convicted each year in the United States. With truth-seeking taking precedence over attorney-client privilege, there is a greater chance that the verdict will be just. After all, you can only protect the innocent if the right person is convicted. Preventing and controlling crime, and protecting the innocent are goals that are upheld when truth-seeking takes precedence over attorney client privilege. When crime is prevented and controlled, and the innocent is protected, the criminal is fairly punished, thus achieving justice.

Contention Two: The criminal is the only person negatively affected by truth-seeking.
Some may claim that when truth-seeking takes precedence over attorney-client privilege, the client is being treated unfairly. This is not the case. Only the guilty will suffer when the truth is told. If the client is truly innocent, then what they tell their attorney does not need to be kept in confidence. Technically attorney-client privilege protects the guilty. Men who are innocent have no need to hide behind the law. If truth-seeking was held higher, many verdicts such as OJ Simpson"s would have been more accurate. Simpson"s ex-wife and her friend, Ron Goldman, were stabbed to death. Simpson was one of the main suspects. He hid behind attorney- client privilege, and came out as innocent. There was not enough evidence to prove him guilty, but if the communications between him and his attorney had been revealed, the verdict would be more precise, achieving justice. Utilitarianism would also have been achieved by providing satisfaction to citizens affected by the crime.

Contention Three: Attorney-client privilege provides exceptions for truth-seeking. Because these exceptions exist, the courts already hold truth seeking higher than attorney-client privilege.
According to The Law Dictionary, attorney-client privilege has exceptions that allow for truth-seeking. Death of the client, fiduciary duty (which is the obligation to act in the best interest of another party), and crime or fraud exception are some instances where truth-seeking must be held higher. This shows that the courts are holding truth-seeking higher, therefore preventing and controlling crime, protecting the innocent and achieving justice.
bsh1

Con

As this round is reserved for Constructive Only, I shall refrain from rebutting Pro at this time. Instead, I shall present my case in this round. I will, however, contest one of Aff's definitions--I believe this is permissible since such arguments are normally made at the onset of the NC. From this point forward, Attorney-Client Privilege may be referred to as ACP.

DEFINITIONS

Aff (Pro) defines ACP as "law requires that the attorney does not reveal any communications or letters between him/her to his/her client or any third party." Unfortunately, this is not strictly correct; there are a number of exceptions to the privilege which are already codified into law. In other words, the wording of Aff's definition makes it seem as if ACP is an absolute, but it isn't. Among the exceptions are [1]:

1.the communication was made in the presence of individuals who were neither attorney nor client, or was disclosed to such individuals,
2.the communication was made for the purpose of committing a crime or tort,
3.the client has waived the privilege (for example by publicly disclosing the communication).
4. Lawyers may disclose confidential information relating to the retainer where they are reasonably seeking to collect payment for services rendered.

I therefore defined ACP as "the client's right, within the boundaries of existing law and jurisprudence, to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

NEGATIVE CONSTRUCTIVE (NC)

Prof. R.A. Hill once wrote, “Government, as an institution formed and controlled by human beings, is subject to the moral injunction to treat human beings as entities accorded certain rights, and included among these rights is the right to just treatment.” Because I agree, I must negate.

Observation One: Renowned jurist, Prof. Ronald Dworkin, states that there are two types of rights: strong rights and weak rights. A strong right is one “that it would be wrong to interfere with…or at least that some special grounds are needed for justifying any interference.” An example of a strong right is free speech. It is something that we cannot be prevented from doing by any agent except for very rare, limited cases. A weak right might be my right to a drive down a street as a shortcut to work. Dworkin 1 argues, “Of course a responsible government must be ready to justify everything it does [from a general utility standpoint]...So, the New York City government needs a justification for forbidding motorists to drive up Lexington Avenue, it is sufficient justification if the proper officials believe...the gain will outweigh the inconvenience.” Yet, in the case of strong rights, “this sort of justification is not enough. Otherwise the claim would not argue that individuals have special protections against the law when their rights are in play, and that is just the point of the claim.”

I Value Governmental Legitimacy. A government is legitimate if it respects the rights of its people. Dworkin 2 states, government employees and law enforcement officials “must understand what rights are, and they must not cheat on the full implications of the doctrine. The government will not reestablish respect for the law without giving the law some claim to respect. It cannot do that if it neglects the one failure that distinguishes law from ordered brutality:” respect for rights.

As Prof. Jack Donnelly states, “To violate someone's right is not merely to fail to do what is right but also to commit an…important personal offense against the right-holder by failing to give him his due...To violate a right goes well beyond merely falling short of some high moral standard…Rights are not just one type of social or moral goal co-equal with others; rather, in ordinary circumstances, rights have prima facie priority over utilitarian calculations or considerations of social policy. In fact, one of the basic purposes of rights would seem to be to insulate right-holders from claims based on such principles.”

Therefore, the Criterion must be Distinguishing Between Strong and Weak Rights.

Contention One: Fundamental constitutional rights are strong rights.

Dworkin 3 observes, “United States citizens are supposed to have certain fundamental rights against their government, certain moral rights made into legal rights by the Constitution. If this idea is significant, and worth bragging about, then these rights must be rights in the strong sense…the claim that citizens have a right to free speech must imply that it would be wrong for the government to stop them from speaking, even when the government believes that what they say will cause more harm than good. The claim cannot mean…only that citizens do no wrong in speaking their minds, though the government reserves the right to prevent them from doing so…those constitutional rights that we call fundamental, like the right of free speech, are supposed to represent rights against the government in the strong sense...if citizens have a moral right of free speech, then governments would do wrong to repeal the first amendment…even if the majority would be better off without it.”

Contention Two: Attorney-client privilege is a fundamental constitutional right.

Sub-point A: Attorney-client privilege is protected by the Fifth Amendment.

According to the California Law Review [2], “denial of the attorney-client privilege is compulsion [to self-incriminate] because it penalizes the client's right of effective counsel if he wishes to avoid self-incrimination. Without the attorney-client privilege, an attorney could routinely be subpoenaed to produce his communications with his client. The only way the client could prevent self-incriminating statements from reaching the prosecution would be for him to limit his communications with his attorney. If this occurs, the attorney may not receive all the facts necessary for an adequate defense.” Prof. Harry Subin [3] furthers, arguing, a client “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.”

Sub-point B: Attorney-client privilege is protected by the Sixth Amendment.

California Law Review 2: “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...Thus, active, partisan advocacy can only be achieved if the attorney cannot be required to divulge his client's confidences to the prosecution. 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 [effectively] with his client...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.”

A strong right is a right that can only be violated in rare, highly exceptional cases. Because attorney-client privilege is a strong right, it must be respected in the vast majority of instances, and would therefore naturally take precedence over truth-seeking. In other words, because of what a strong right is, and because attorney-client privilege is such a right, we must negate.

SOURCES

1 - http://en.wikipedia.org...
2 - California Law Review, 1982, Dashjian, Michael B., "The Attorney-Client Privilege and the Criminal Defendant's Constitutional Rights," July, 70 Calif. L. Rev. 1048, p. 1064-5
3 - Subin, Harry I., Law Professor-NYU, 1985, "The Lawyer as a Superego: Disclosure of Client Confidences to Prevent Harm," 70 Iowa L. Rev. 1091, p. 1132

Thanks! I apologize for any formatting errors caused when I C/P'ed from Word. Over to Aff...
Debate Round No. 1
debatability

Pro

Thank you to Bsh1 for accepting this challenge!! Looking forward to a great debate.
Note: I will be referring to the United States Criminal Justice System as the USCJS.

Definition Argument
My opponent talked about how attorney-client privilege provides certain exceptions, proving my definition to be incorrect. For this argument, look to my third contention. All of these exceptions fit my definition of truth-seeking: "Trying to get or achieve the real facts about something." Essentially, these exceptions are examples where the United States Criminal Justice System lets truth-seeking take precedence over attorney-client privilege. The exceptions that my opponent listed should actually flow over to my side. Looking at strictly the definitions, it doesn't really matter what definition you look at because the exceptions of attorney-client privilege are separate from the concept of attorney-client privilege. In the affirmative world, attorney-client privilege can still exist, but the exceptions that allow for truth-seeking should always take precedence if need be.

Observation
Here my opponent explains strong rights and weak rights. I would agree with this concept of strong/weak rights. However, I aim to prove that attorney-client is a weak right because truth-seeking is more important. I'll into this more as I attack my opponent's case.

Value- Government Legitimacy
Firstly, based upon resolutionality, justice should be the paramount value in the resolution because this is the primary goal of the USCJS. I defined justice as "the process or result of using laws to fairly punish crimes or criminals." This is a debate about whether or not truth-seeking should take precedence in the United States Criminal Justice System. The best way to decide weather or not truth-seeking ought to take precedence is to see if the USCJS is achieving it's primary goal, justice. Attorney-client privilege being held higher than or equal to truth-seeking stops justice from being achieved. Also, Government Legitimacy is not achieved because the USCJS is not living up to it's full potential by going out of its way to preserve a right that focuses on protecting the guilty.

Criterion- Distinguishing Between Strong and Weak Rights
To decide whether attorney-client privilege is a strong or weak right, look at the goals of the USCJS.
1. Justice
2. Preventing and Controlling Crime
3. Protecting the Innocent
As I showed in my constructive, attorney-client privilege has the potential to hinder us from achieving such goals, proving that attorney-client privilege is a weak right.

Contention One: Fundamental constitutional rights are strong rights.
Attorney-client privilege actually is never directly mentioned once in the constitution. Through the affirmation of the resolution, attorney-client privilege does not completely disappear, making sure that all amendments are protected while seeking the truth.

Contention Two: Attorney-client privilege is a fundamental constitutional right.
A. ACP is protected by the fifth amendment.

The first thing to take into account with this argument is that through the affirmation of the resolution, attorney client privilege isn't always going to be denied. It will only be denied in cases where the things the client says are essential in finding the truth. In my third contention, I listed some exceptions that show how the court system already holds truth-seeking higher. Death of the client, fiduciary duty, and crime/fraud exception, as well as the exceptions my opponent listed are are instances where attorney-client privilege would be overridden. My opponent says in his evidence, "the only way the client could prevent self-incrimination from reaching prosecution would be for him to limit his communications with his attorney." This would only be the case if attorney-client privilege ceased to exist when truth-seeking took precedence. This is of course not the case. The exceptions are not part of attorney-client privilege. The exceptions are part of truth-seeking. Because the USCJS takes advantage of these exceptions, truth-seeking already has precedence, yet the fifth amendment is not violated because attorney-client privilege still exists.
B. ACP is protected by the sixth amendment.
Again, look to the fact that affirmation of the resolution does not result in the abolition of attorney-client privilege. Attorney-client privilege will still exist. My opponent talks about how the client won't disclose sensitive information that could prove them guilty if truth-seeking takes precedence. There is really no point in them sharing this information with their attorney if it will never be made known in court due to attorney-client privilege. Essentially, if attorney-client privilege is held higher than or equal to truth-seeking, the guilty is protected, not the innocent. My opponent never gave one actual example of a client who was hesitant to disclose necessary information because truth-seeking took precedence, so this point cannot be looked to.

In conclusion, I would like to provide a quote from Elizabeth G. Thornburg of Dedman School of Law. "Attorney-client privilege rejects both moral and utilitarian explanations and argues that, far from being beneficial or benign, the privilege actually does great harm to the truth-seeking function of litigation and imposes tremendous transaction costs on the litigants and on the judicial system as a whole." The USCJS has goals that they currently are not fulfilling. Preventing and controlling crime is made possible with truth-seeking due to crime/fraud exception. Protecting the innocent is made possible because the other exceptions that allow the truth to be told. Clearly the USCJS is not achieving their goals right now. 10,000 people are falsely convicted every year. The way to solve this problem is to let truth-seeking take precedence. My opponent stated that attorney-client privilege must take precedence. If it takes precedence, exceptions witch are vital to achieving justice will be overlooked.

bsh1

Con

I will now rebut Pro's case, and defend my own. Thanks, again, to Pro!

PRO's CASE

OVERVIEW: Prioritizing Truth-Seeking will not increase the amount of new evidence available

“In Fisher v. United States, the [Supreme] Court remarked that the attorney-client privilege is intended to ‘protect only those disclosures...which might not have been made absent the privilege.’ In the 1996 Jaffee opinion, Justice Stevens, writing for the majority, elaborated: The likely evidentiary benefit that would result from the denial of the privilege is modest…Without a privilege, much of the desirable evidence…is unlikely to come into being. This unspoken ‘evidence’ will therefore serve no greater truth-seeking function than if it had been spoken and privileged.” [1]

The Harvard Law review adds, “to the extent that the privilege induces a client to reveal information to his attorney, it keeps from the court only sources of information that would not exist without the privilege. As the Supreme Court has recognized: ‘Application of the attorney-client privilege…puts the adversary in no worse position than if the communications had never taken place.’” [2]

VALUE: According to Pro's definition, Justice is about fairly punishing criminals. However, this is a very narrow facet of Justice. Rather, Justice is about the fair application of laws in society, according to Black's Law Dictionary (9th Edition), a much more reliable source than dictionary.com. I will show how I link to this value throughout this debate. I will also attempt to show how Pro fails to link. Moreover, I would argue that Gov. Legitimacy and Justice are closely linked, in that without justice a government cannot be legitimate, and that without good government, justice is soon lost. Achieving one achieves the other.

Consider that fairness implies fairness for all. It is inherently unfair to make a system that gives the guilty no chance at a fair trial, which is the unfortunate side-effect of affirming this topic. “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.” [3] A lack of ACP hinders a person's ability to engage in full and frank communication because the client will always fear that their own attorney might turn them in if they say too much.

CRITERION: Firstly, This criterion inherently contradicts with Pro's value of Justice. For example, Person X has information on Person Y. The police arrest Person X--a pedophile--and, in exchange for his information, release him back into society. Person Y, a worse criminal, may now be behind bars, but not only is Person X still a menace to society, but he has escaped punishment. This is not a fair application of the law, and is thus unjust. Utility, by being a numbers game, inherently overlooks concerns of fairness when fairness is a hindrance to getting the best results.

Secondly, ACP links to utility, in that its benefits outweigh its harms. “The purpose behind the privilege is to promote full and open communication between the attorney and client. As a result of this communication, an attorney will be better able to represent his client in a competent manner. The attorney-client privilege also promotes ‘broader public interests in the observance of law and administration of justice’ by providing the attorney and client with a confidential forum in which to communicate and resolve the client's problem. While the privilege may suppress important evidence, it has been determined that the need to allow the attorney to provide sound legal advice generally outweighs any disadvantage of withholding evidence in a particular case.” [4]

Thirdly, ACP links to utility in that it cuts down on misconduct. "“By encouraging clients to communicate information they would otherwise withhold from their lawyers, confidentiality enhances the quality of legal representation and thus helps produce accurate legal verdicts…It can foster aspects of lawyer and client ‘dignity’…confidentiality helps lawyers discover improprieties that the client plans, advise against them, and ultimately stop the misconduct.” [5]

C1: Goals

1: Let's just cross-apply my overview here. If no new information will be obtained by truth-seeking, then what is the point? Pro has no offense here, then, because she cannot claim that she will promote more accurate verdicts, solve more cases, or help the innocent.

2: Consider that ACP is part of a broader understanding of privacy, and that by undermining ACP, one enables an invasion of individuals privacy. Consider that people are also less likely to seek legal advice if they believe their communications may not be kept confidential. In this way, undermining or abrogating ACP would be a harm to people, even innocent people.

C2: Who is harmed?

See the above.

Additionally, let's consider the following: Person A has been accused of murder. Person A admits to their attorney that they cheated on their wife (which is not a crime), and that their wife threatened to divorce them. The prosecutor subpoenas the defense attorney of Person A, and compels them to take the stand under the truth-seeking doctrine or to otherwise disclose this conversation. The prosecutor's logic is that the motive for the murder was the threat of divorce, and so that information is probative and worth disclosing. Even if Person A is innocent, he will forever be known as an adulterer. That is a clear harm to an innocent person, and so Pro's logic here just doesn't hold up.

C3: Exceptions

I will address this under my case, definitions.

CON's CASE

DEFINITIONS: Pro attempts to argue that these exception flow Pro. However, they are intrinsic to the definition of ACP. ACP is defined as "the client's right, within the boundaries of existing law and jurisprudence, to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney." These exceptions are considered by the courts to define what ACP is, and what it is not, and therefore, Pro must show that additional exceptions (other than those in the status quo) are warranted in order to show that truth-seeking should take precedence over ACP.

OBSERVATION: Conceded.

VALUE: This may be a debate regarding the USCJS, but it is taking place in the United States. we can look just as much to what the government ought to be doing (Gov Legit) as to justice.

CRITERION: Unfortunately, because rights exist and are formed outside of the USCJS, we cannot look solely to the goals of the USCJS to determine what is a strong or weak right. instead, our focus must be directed to the Constitution, because it describes those rights that the government has the most difficulty overcoming. Those are our "strong rights."

C1: Constitutional Rights

Notice here that Pro NEVER REBUTS that Constitutional rights are strong rights. This point is DROPPED. Therefore, if I can prove that ACP is a Constitutional right, I have shown it to be a strong right.

Moreover, ACP does not need to be mentioned verbatim in the Constitution, because the Supreme Court has interpreted the Constitution as requiring ACP. One example of this case law is Upjohn vs. U.S. [6]

C2: ACP as a Constitutional right

Con makes similar errors in both sub-points.

At the point where privilege can be denied when "finding the truth" makes the right worthless. Prof. Minh A. Luong observes: “Thus, if rights are to have a meaning, they must serve as a trump when they conflict with other social goods, like the protection of the national interest. This view of rights is upheld in other areas--just societies allow for freedom of speech, even if it might offend some people in the community." If I have a right to X, but that right can be infringed when it becomes inconvenient, then, functionally, I have no right to X.

My opponent has also misunderstood my argument here. When I said, "the only way the client could prevent self-incrimination...would be for him to limit his communications with his attorney," this was because if ACP does not exist, then clients will not be full and frank. It has nothing to do with the exceptions, because even under those, I could admit to my attorney, "I killed someone," and that information would still be confidential.

But, essentially, none of Pro's attacks actually have anything to do with the crux of this point, i.e. that the 5th amendment guarantees ACP. Not once does she deny this point. It is DROPPED. In fact, she seems to agree that the amendment guarantees it by saying she would not get rid of ACP altogether.

Constitutionally, ACP trumps truth-seeking. “The state's interest in truth-seeking cannot support the restriction of constitutional rights found in Meredith. The Fifth Amendment protection against self-incrimination is necessary to protect individual liberty from government abuse even though this necessarily restricts the state in its truth-seeking." [7]

SOURCES

1 - Imwinkelried, Edward J., Law Professor, U. Cal Davis, 2002, "The Historical Cycle," 55 Ark. L. Rev. 241, p. 254-6
2 - Harvard Law Review, 1985, "Privileged Communication: III. Attorney Client Privilege" 98 Harv. L. Rev. 1450, p. 1507-8
3 - Glynn, Thomas P., Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 69-70 4 - Northwestern University Law Review, 1992, "Attorney-Client Privilege and Procedural Safeguards" 86 Nw. U. L. Rev 368, p. 383-4
5 - Zacharias, Fred C., Law Professor, Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L. Rev. 351, p. 358-9
6 - http://www.ask.com...
8 - Cal Law Rev (previously cited)
Debate Round No. 2
debatability

Pro

This final round is mainly for voting issues, but I am going to go ahead and rebuild my own case because my opponent got the chance to rebuild his. I will then present my voting issues.

Overview

Con: Prioritizing truth-seeking will not increase the amount of evidence available.
One thing I want to make clear that the exceptions of ACP are not actually part of ACP. They are part of truth-seeking because they are (as my definition states) aiming to get or achieve the real facts about something. These exceptions are used today, showing that the USCJS does value truth-seeking. Because these exceptions do reveal more evidence, it can be concluded that the prioritization of truth-seeking is effective.

My Value

Definition Argument: If you, as a reader, do not buy my definition argument, look to the fact that my opponent's definition of justice (fair application of laws in society) is best met on my side because through truth-seeking, the goals of the USCJS are best achieved. I'll talk more about this as I defend my case.

Con: Government legitimacy and justice achieve each other.
This is partially true, but this debate is about justice in the USCJS, not the government. Thus, look to the value of justice as the most important.

Con: Without ACP, the guilty have no chance of a fair trial; constitution not upheld.
Attorney-client privilege is not being abolished, thus the constitution is upheld. A precedence of truth-seeking never forces a client to incriminate themselves, nor does it violate the sixth amendment.

Finally, con notes that "a lack of ACP hinders a person's ability to engage in full and frank communication because the client will always fear that their own attorney might turn them in if they say to much." An attorney's duty is to protect their client; that is what the client pays the attorney to do. Even when truth-seeking has the precedence, the attorney probably will not turn their client in for saying too much unless one of the exceptions is put into play. On the other hand, when ACP has the precedence and the exceptions are taken away, there is always a chance the attorney could actually lie for their client, to avoid letting the truth be known.

My Criterion

Con starts out by providing a hypothetical scenario where, due to truth-seeking, a pedophile is not punished and released into society because he/she turned in a worse criminal. According to my opponent, this is not utilitarianistic. Firstly, if a worse criminal was turned in, society would actually benefit. Secondly, generally the USCJS would not completely forgive a pedophile of all charges in exchange for information, so justice would be achieved.

Con brings up the full and frank communication argument again. I would like to cross apply my earlier argument on this subject. Like I said before, truth-seeking is the exceptions. There are instances when the attorney and client can engage in such communication under the privilege though truth-seeking is taking precedence.

Lastly, con brings up that ACP leads to more accurate verdicts. Here we have to look at what will happen if truth-seeking is not prioritized. I talked about the very well known example of OJ Simpson earlier on. He disclosed large amount of information to his attorney. Though he was guilty, he came out innocent. The bottom line is, in this situation utilitarianism is not achieved because society is not benefited when a guilty man is released. Moreover, justice is not achieved because the criminal is not fairly punished.

My First Contention

Goal 1: Preventing and controlling crime. Now, as I said earlier. The USCJS already prioritizes truth-seeking through its exceptions. If we stop prioritizing truth-seeking by getting rid of the exceptions to attorney-client privilege, the accuracy of verdicts will go down.

Goal 2: Protecting the innocent. For this goal, my opponent explains that the innocent are not being protected because truth-seeking is an invasion of their privacy. Truth-seeking is not going to force clients to disclose information unless it falls under one of the exceptions or it is vital to finding an accurate verdict; of course, an accurate verdict will protect the innocent.

My Second Contention

My opponent provides an example of a client being exposed as an adulterer because such information was deemed useful to finding an accurate verdict. In the end of my opponent's example the client was proved innocent, but also earned a bad reputation. Here with example, you must look to what would happen if the adultery was actually the client's motivation to murder. This information could actually be very helpful in providing an accurate verdict; thus, protecting other innocent suspects from being accused as guilty.

My Third Contention

Cross apply my first argument over my value. Exceptions to ACP fit the definition of truth-seeking, not attorney-client privilege.

Voting Issues

1. The goals of the USCJS are best upheld with truth-seeking.

  1. Preventing and controlling crime: Look at crime fraud exception. This exception allows the USCJS to let truth-seeking take precedence when the client gives information about a crime that is going to happen or is happening. If ACP is held equal to truth-seeking or takes precedence, this important exception could be overlooked, therefore not preventing and controlling crime.
  2. Protecting the innocent: Exceptions of ACP lead to accurate verdicts. Ignoring truth-seeking in the attempt to protect a client's privacy will not actually help the innocent person at all. A ruined reputation is better than an innocent person in jail, as I said earlier while attacking my opponents example of the adulterer.
  3. Justice: I'll cross apply what I said when defending my value. Justice is only achieved with truth-seeking.

2. I win the value/criterion debate.

  1. Value (Justice) Justice is the most important thing to achieve in this debate because it is the primary goal of the USCJS. Again, Justice and Government Legitimacy achieve each other to some extent, but this is not a debate about legitimacy in the government, it is a debate about what would best suit the USCJS, making justice the ultimate goal. I am achieving this value by respecting the exceptions to ACP thus, adequately punishing crimes and criminals, and also achieving my opponent's definition of justice.
  2. Criterion (Utilitarianism) Utilitarianism is the best way to achieve justice. Truth-seeking is the action that benefits the largest amount of people. When the majority benefits, justice is achieved through fair and reasonable treatment of the people.

3. The USCJS already lets truth-seeking take precedence.

Death of the Client
Fiduciary Duty
Crime/Fraud Exception
as well as the exceptions my opponent listed… thus, prioritizing ACP would result in these vital exceptions being overlooked

For these reasons, vote affirmative.

bsh1

Con

Since Pro has used this round to make arguments, I shall also be using it partially for that purpose. This will ensure we both have equal character space to lay out our arguments. I'll keep my arguments around the 4,750 Pro used. I will then provide voting issues for this debate.

GENERAL COMMENT

The Supreme Court has laid out explicitly what ACP does not cover. They have defined ACP through case law as NOT covering 4 key points that I mentioned. Therefore, this definition more accurately reflects case law: "the client's right, within the boundaries of existing law and jurisprudence, to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."

Simply put, ACP, what it is and what is not, is defined by case law. These exceptions are what it is not. Pro's BOP is therefore to show that additional exceptions other than those found in current case law should occur. Keep in mind the following: under the existing ACP laws, I could walk into my attorney's office and confess to 100 murders, and he would have to keep that confidential. Most of Pro's offense comes from forcing attorneys to reveal that information, so Pro is already advocating for changes to the status quo.

PRO's CASE

OV: Evidence

Pro fundamentally misunderstands my point. She discussions exceptions to ACP, but those exceptions are extremely limited. If I could not walk into my attorneys office and confess to a crime in confidence, then I would not confess at all. Never does she address this logic in my cards. She basically DROPS everything. Even under the current exceptions, I don't walk into my attorney's office and tell him I'm about to commit a tort because I know it's not privileged. Therefore, the exception to the privilege and truth-seeking in general don't increase the amount of evidence available. If ACP was trumped by truth-seeking, I just wouldn't tell my attorney anything, so Pro does not actually increase the amount of truth discovered. This takes out all of her utility offense, because without more truth, she cannot access any of her offense.

VALUE

Pro basically agrees to my definition. Moreover, this debate isn't about the USCJS alone, it is about what the government (prosecution's) role is in it. We have to look to how far government should be able to go, which brings us back to my value. Regardless, I will show how I achieve both values.

Pro erroneously claims that as long as ACP isn't abolished, the constitution is upheld. This is false. If ACP is unduly infringed by a policy, that policy is unconstitutional, even if it doesn't totally abolish ACP. Next, Pro brings up the exception argument, which I already addressed. Keep in mind, Pro argued that if people confess to crimes, that information should be turned over to the police. That alone is sufficient grounds to show how truth-seeking inhibits full and frank communication. By denying people full and frank communication you deny them fairness. By denying them fairness you deny them justice. Thus, Pro fails to achieve her own value. I achieve justice better, on the other hand, by allowing for more instances of full and frank communication than does Pro.

CRITERION

Again, Pro misunderstands what I wrote. I agree, putting a worse criminal behind bars is utilitarian. But, if we let a pedophile go free in order to that, we are not applying the laws equally and fairly. Therefore, utility doesn't link to justice, because it inherently overlooks concerns of fairness when fairness is a hindrance to getting the best results. Essentially, my example delinks her criterion from her value. Next, she says that the USCJS would not completely forgive the pedophile: (1) this has no relevance to the underlying point, that utility is willing to act unjustly in order to maximize pleasure, and (2) that society does let a lot of criminals go free in exchange for testimony. This happens all the time in our overburdened CJS.

Her cross-application doesn't apply. She's cross-applying an argument about how exceptions don't cause attorney's to turn their clients in (which they do, unless the attorney want's to face jail time) to an argument about how confidentiality promotes accuracy of results. She's cross applying a rebuttal that doesn't apply to my argument. We can basically extend my argument at this point. Pro then says: "There are instances when the attorney and client can engage in such communication under the privilege though truth-seeking is taking precedence." According to her, as she noted earlier in this debate, whenever a criminal confesses to a crime they should be turned in. So sure, ACP might exist, but it would only exist in name, not in fact. I would have to think about every word that came out of my mouth, I would have to hide facts and conceal information for fear that my own defense attorney would turn me in. That is NOT full and frank in any sense of those words. Extend my argument.

Frankly, the guilt or innocence of OJ is still up for debate. What Pro fails to do is actually address my warrant, that an attorney can stop a client committing improprieties. If I told him I wanted to do something illegal to hide evidence, he could advise against that, thus promoting fairness in the system.

C1:

Cross-apply earlier points here.

C2:

Insofar as Pro admits that an innocent person could be defamed by prioritizing truth-seeking, Pro admits that her C2 is invalid and that innocent people can be harmed.

C3:

Already addressed at length...

VOTING ISSUES

I will divide voting issues into those coming from my case and those coming from Pro's. Let's start with my own.

NC - Keep in mind Pro drops all of my defensive arguments on my NC. Instead, she prefers to have lengthy voting issues. Please extend all of my NC arguments.

1. RIGHTS AS TRUMPS

If I have a strong right to X, this right trumps utilitarian concerns. So, even if you accept that Pro is producing the most benefit, as long as you accept that ACP is a strong right, you can disregard all of Pro's impacts and must vote Con.

Furthermore, my observation, which was conceded, implies that strong rights take precedence over other concerns, echoing this logic.


2. CONSTITUTIONAL RIGHTS AS STRONG

Pro conceded this round 2 by failing to address the warrant I provided. So, as long as ACP is a constitutional right, we must buy that it is a strong right.


3. ACP PROTECTED BY THE 5TH AMENDMENT

According to the California Law Review, “denial of the attorney-client privilege is compulsion [to self-incriminate] because it penalizes the client's right of effective counsel if he wishes to avoid self-incrimination. Without the attorney-client privilege, an attorney could routinely be subpoenaed to produce his communications with his client. The only way the client could prevent self-incriminating statements from reaching the prosecution would be for him to limit his communications with his attorney. If this occurs, the attorney may not receive all the facts necessary for an adequate defense.”

Pro attempts to mitigate this in the final round, saying that truth-seeking does not force self-incrimination. In fact, what it does is force the client to choose between self-incrimination and full and frank communication. Pro seems to agree that full and frank communication is important when she tries to coopt this offense for her world. So, if we buy that full and frank communication is essential to justice and that clients should engage in full and frank communication, then we are, from a de facto perspective, forcing self-incrimination.


4. ACP PROTECTED BY THE 6TH AMENDMENT

California Law Review 2: “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." At no point in this debate has Pro ever rebutted this. In fact, in her last speech, she agreed that attorney's should be subpoenaed if they could provide probative evidence. She agrees, in other words, that we should violated the constitution.


CONCLUSION 1: As long as you buy either 3 or 4, then you buy that ACP is a strong right. Strong rights take precedence over other concerns, like truth-seeking. At this point, I have won the debate, but in case you don't buy that, let's look at Pro's case to see the offense I'm garnering off of that.

AC - I will show some issues with Pro's case at this time.

1. NO EXTRA TRUTH

Pro's world would result in no more truth than Con's world. The reason is simple: because if I know my attorney could testify against me, I won't tell him anything. So, what would've be kept secret by virtue of privilege is now kept secret by virtue of the fact I just never tell anyone. So, Pro can't link into her own framework of utility better than me, because she is not discovering any more truth or any more evidence than I am. This takes out all of her offense.


2. PRO CAN'T ACHIEVE JUSTICE, I CAN

If attorney's can be subpoenaed, full and frank communication disappears. By denying people full and frank communication you deny them fairness. By denying them fairness you deny them justice. Thus, Pro fails to achieve her own value. I achieve justice better, on the other hand, by allowing for more instances of full and frank communication than does Pro.


3. PRO CAN'T ACHIEVE UTILITY

There are a number of reasons for this: truth-seeking can harms innocents, she's not actually increasing the amount of truth discovered, and she is violating rights (which seems harmful.)


4. UTILITY CONFLICTS WITH JUSTICE

Utility is about results. Justice is about fairness. When fairness gets in the way of results, the utilitarian says "ignore fairness."


For these reasons, please VOTE CON! Thank you!
Debate Round No. 3
10 comments have been posted on this debate. Showing 1 through 10 records.
Posted by whiteflame 3 years ago
whiteflame
RFD:

Alright, there's a lot to cover, so I'll try to be brief on each point as I go through the debate.

The value and criterion debate:

Admittedly, much as I've judged a good deal of LD, these have rarely been important voting issues unless someone did a poor job of explaining one or both, or they simply didn't link well. It seems to me that there's a lot of overlap on the values between both debaters, and frankly you've both shown how you meet each other's anyway. I buy from Con that there's some issues with the link between Pro's criterion and value, but it doesn't do much to affect my decision.
Posted by whiteflame 3 years ago
whiteflame
Burdens:

I think this warranted more discussion, mainly because I end up scratching my head as to what the case is and what each side's burden is by the end of the debate. At the start, I was under the impression that Pro was arguing that truth-seeking ought to take precedence over the ACP in more instances. In R2 and R3, I'm told by Pro that she only needs to defend those instances currently in place where truth-seeking takes precedence over the ACP. This would make Pro's case status quo, and force Con to argue that these exceptions should be removed, and yet I'm not given a strong reason to prefer this view. It seems to me that the resolution implies an increased preference towards truth-seeking in some way, and that Pro is trying to have it both ways by saying that ACP won't change and yet more individuals will have more just outcomes.

But I'm not given the responses I need to take out Pro's case here from Con. This sort of vagueness and, from what I can tell, ground shifting might have been enough to sink her case, but the main burdens analysis I get from Con is that she must be increasing truth-seeking in some way. I do buy that that's her burden in the debate. As such, I can't give Pro the win just by showing that exceptions exist and should continue to exist. It's not enough for her to argue that status quo is good to win the debate. She must show that an increased number of instances in which truth-seeking is prioritized to the ACP is beneficial. Hence, I move into the arguments with this as the framework.
Posted by whiteflame 3 years ago
whiteflame
More on burdens:

There was some dancing around another burdens discussion that left me puzzled as well, and that is on the impacts analysis. Pro tells me repeatedly that the only impacts that matter are those that affect the USCJS's ability to pursue justice. Con tells me repeatedly that the impacts of this go well beyond the USCJS and to the government as a whole, and that I should care about those because they affect a broad number of people and various constitutional rights. I'll get into these more specifically as I go, but suffice it to say that I don't buy Pro's analysis that the only impacts that matter are those directly relating to the USCJS. The impacts of changing the ACP go well beyond them, and I think it is entirely reasonable for Con to utilize those within the debate.

Solvency:

I could vote on the solvency takeout by Con. I don't get any serious response to the argument that no one will divulge information to their attorneys, and thus there will be no increase in truth-seeking because there will simply be less truth available to be sought out. On a basic logical level, I recognize that this will still have some positive effect for truth-seeking with current cases where someone is already being tried and thus has already divulged this information, but without any mid or long term solvency, much of Pro's impacts just dwindle nearly to nothing.
Posted by whiteflame 3 years ago
whiteflame
Fair trial:

I buy that there's some harm to individuals who are guilty not being able to have a fair trial. Again, since Pro's case must require some further abridgment of the ACP, there is some harm coming to these individuals who would otherwise be able to let their attorneys know this valuable information. Without it, their trials will be far less fair. I do buy that there's a benefit in ensuring that more guilty people go to jail, but that's mitigated by this point. Their lack of a fair trial is a big problem.

Injuries to the innocent:

This really came in two pieces. Pro tells me first that more of the innocent will be convicted and sentenced in a world where the ACP is prioritized, but I didn't find this argument very persuasive. It's missing some of the links. She essentially states that truth-seeking will ensure that more information about their innocence will come to light as a result of getting more information from their communiques with their attorney. However, if the information was capable of ensuring an end to the trial that went in their favor, why wouldn't an attorney provide that information in the first place? I'm just lost on how innocence is somehow favored in this case, unless we're talking about multiple trials going on at the same time on the same case.

Con tells me that it will force the release of unsavory information. I do buy from Pro that, if she's right and the innocent are more likely to receive justice, then the loss to their reputations is undoubtedly smaller. However, without the full story on how the innocent are going to be treated more fairly, I'm left in doubt on whether this point outweighs. At best for Pro, I'm giving this a wash, but at worst, I'm saying that the loss to reputation is far more likely and therefore the bigger impact.
Posted by whiteflame 3 years ago
whiteflame
I'm honestly a little surprised that the issue didn't come up that some released information could imply guilt where there is none. Much as Pro kept on stating that more information is better for a trial outcome, I never got a solid warrant for why more information is ALWAYS better. It seems to me that there are a lot of details that an innocent person might give to their attorney that would implicate them. Sure, a guilty person might be more likely to do so, but that doesn't change the fact that an innocent person could also be convicted by this same release of information, which is a direct turn on the justice point. However, I don't see this argument elucidated, so I don't factor it into the debate.

Constitutionality:

This is where the strongest argument from Con comes through, and I think Pro just doesn't do enough here to push back on his points that the ACP is upheld by the 5th and 6th Amendments. Con tells me multiple times to remember that, if these applications of the Constitution apply, then the ACP is a strong right that can't and shouldn't be abridged just for a basic benefit. I never see response to that analysis " in fact, it's practically granted. Even if I buy Pro's responses on the 6th Amendment, he practically concedes Con's analysis on the 5th, and as such I'm forced to buy that, from the outset of this debate, Pro was doomed to lose it just by taking up this mantle. I didn't find this point particularly persuasive in R1 when it was first phrased, but it became stronger with each round, and as such becomes an easy voting issue.

So that's what I've got. I vote Con on mainly on the basis that the loss of a strong right, even to a marginal degree, is always going to trump the gaining of some small amount of truth-seeking. I am also giving Con sources, mainly because I didn't see any out of Pro aside from definitional analysis and I feel that Con's successfully bolstered his case.
Posted by whiteflame 3 years ago
whiteflame
I'll give this a read through over the next few days and vote on it.
Posted by bsh1 3 years ago
bsh1
@Scapegoat, what about the overview. If Pro fails to actually find truth, she has no impacts.
Posted by Kaneo 3 years ago
Kaneo
Truthseeking isn't necessarily good. It might be true that Bob possessed a certain illegal plant, that doesn't mean Bob should be locked up in a cage when they did nothing wrong. And that's another thing, truthseeking doesn't even take precedence in the court at all, law is the most important thing. If truthseeking took precedence, they would hold debates on science and philosophy.
Posted by Flipz 3 years ago
Flipz
I would like to accept this debate, but I am not an LD debater, do you mind? I will stick to your format. I also did policy debate some years ago.
Posted by aburk903 3 years ago
aburk903
Makes me miss the National Forensics League haha
4 votes have been placed for this debate. Showing 1 through 4 records.
Vote Placed by Oromagi 3 years ago
Oromagi
debatabilitybsh1Tied
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Total points awarded:03 
Reasons for voting decision: Conduct, Grammar, Sources were well above par on both sides of the argument, so no points to tip there. Good debate all around. Pro relied heavily on axiom without demonstration; more truth always equals more justice, truth can only harm the criminal, USCJS already values truth before constitutional rights. These are big claims that I simply don't accept. If Pro is going to make such pronouncements, we need to see way more expert backing. I don't think the evidence can support such claims. Con wisely sticks to our constitutional guarantees as the bedrock of govt. legitimacy, but arguing that the right was also a strong right seemed redundant. Pro wants to separate USCJS from govt. Pro confirms that truth only precedes rights in a few exceptional cases establishing that both sides recognize rights as the greater priority. Therefore I end up prefering Con's voting issues 1, 3, and 4 so I give Con the argument points.
Vote Placed by whiteflame 3 years ago
whiteflame
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Reasons for voting decision: Given in comments.
Vote Placed by The_Scapegoat_bleats 3 years ago
The_Scapegoat_bleats
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Reasons for voting decision: Pro has shown and Con conceded that ALREADY cases exist in which truth-seeking takes precedence over the attorney-client privilege. Con argues that innocents might be harmed, but if they did nothing wrong, there will be no unjust harm. The adulterer from Con's example committed adultery, so I see no injustice in that being exposed - it is true, after all. Con argues that in the example of a pedophile going free for delivering a murderer, "Person X ... has escaped punishment. This is not a fair application of the law, and is thus unjust." But if we make that law, it IS fair, since fairness is a matter of interpretation for the most part. This debate comes down to the decision what we consider justice. In a just system, ACP would be unnecessary, because people would not have to fear unjust punishment in the first place. With the truth revealed, everyone gets their due, ALL offenses are punished justly. Innocents go free, as do those who helped - as encouragement to others. Fair enough
Vote Placed by YYW 3 years ago
YYW
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Reasons for voting decision: Not a bad debate on both sides, and it's laudable that PRO took what (I think) is a much harder case to make. As LD rounds go on DDO, this certainly wasn't a bad one. CON wins this debate because if we're valuing justice and achieving it through maximizing utility, where truth seeking is shown to undermine utility and where utility is shown to be in conflict with justice PRO's value structure doesn't hold against CON's counters. That CON additionally showed that PRO doesn't achieve justice where justice requires attorney representation requires a CON ballot. But, once more, very good debate for both competitors and I look forward to reading future debates that PRO offers. She's got a bright future ahead of her in LD!