LD Debate: Attorney-Client Privilege
Debate Rounds (4)
Rules: (1) This debate must be in Lincoln-Douglas Debate format as laid out by the NFL and NCFL (don't accept if you are unaware of what this means), (2) no plans, "kritiks," counterplans, theory arguments, presumption arguments, or tautologies should be presented, (3) there is no burden of solvency, and no need for absolute proof.
Round 1: Pro will present his/her constructive case.
Round 2: I will offer my constructive case, and rebut Pro's case. Pro will rebut my case and defend his/her own.
Round 3: Rebuttals Continue
Round 4: I will offer my closing arguments. Pro will not make arguments--Pro's post will read exactly as follows: "The End."
Both sides may offer such definitions as they wish to clarify the round. Both sides may offer competing definitions, and there shall be no pre-debate presumption in favor of one side's definitions over the other.
I look forward to this debate--thanks in advance for accepting. After this debate, I will be taking a one week hiatus, so I truly hope this will be an excellent round before my DDO break!
For a better understanding of the debate, I will be offering the following definitions.
-Attorney-client privilege: At its most basic, the privilege ensures "that one who seeks advice or aid from a lawyer should be completely free of any fear that his secrets will be uncovered." http://www.sgrlaw.com...
-Ought: Used to indicate duty or correctness, typically when criticizing someone's actions. http://www.oxforddictionaries.com...
-Criminal justice system: The system of law enforcement that is directly involved in apprehending, prosecuting, defending, sentencing, and punishing those who are suspected or convicted of criminal offenses. http://www.oxforddictionaries.com...
-Precedence: The condition of being considered more important than someone or something else. http://www.oxforddictionaries.com...
My value will be Justice. Justice will be defined as according to the Oxford Dictionary as "Just behavior or treatment." This is highly relevant especially as we're talking about the criminal justice system. The system ought to deal the most accurate justice possible. I will make this argument further later in my case.
My value criterion will be understanding truth. Understanding truth is simply the state of knowing and comprehending what is factual. This specifically ties into justice, as justice cannot be given without an understanding of the facts. The highest degree of this will result in the best form of justice possible.
Now I will support my case with the following contentions: truth is essential to justice, truth is always to be morally considered more important.
Contention 1: Truth is essential to justice.
To accurately serve justice, one must know the truth. It only makes sense. If justice were served merely by presumption or half truths, we wouldn't be able to ensure either the safety of our people or the punishment of the right people.
"COLUMBUS, Ohio -- About 10,000 people in the United States may be wrongfully convicted of serious crimes each year, a new study suggests." http://researchnews.osu.edu...
Even if that number, in reality, is slightly more or slightly less, it is still a large enough number for this to be an issue. There is obviously no utopia in which a perfect system for justice exists. However, such a system ought to include absolute truth for trials, and although the system itself is impossible to create, it ought to be something for which we strive.
When all facts can be considered, the most proper judgment can be made about a person. The more information known the more informed the system is to create the best outcome. These are highly rational statements. While there are sentiments regarding the attorney-client privilege, we need to examine the truth in order to make the best judgement for this decision as well, for no one would justifiably vote on a debate without first hearing (or reading) the arguments presented.
Contention 2: truth is always to be considered morally more important.
When it comes down to justice, as stated above, whole truth is essential for justice. Seeing as this is a prerequisite for justice, and United States law is not, in principle truth seeking should be most important. It's the most rational explanation when concerning a principle debate (as Lincoln Douglas is).
The simple syllogism goes as follows:
P: Truth-seeking is a prerequisite to justice
P: Attorney-client privilege hinders truth-seeking
C: Attorney-client privilege hinders justice.
Seeing as the criminal justice system is what's under debate, justice ought to be upheld as most important.
Thank you for your time.
The goal of the criminal justice system is not to uncover the truth at all costs; rather, it is to search for the truth fairly. Thus, I strongly negate.
I will offer the following counter-definition: according to Black's Law Dictionary Ninth Addition, attorney-client privilege is "the client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney." Prefer this definition as it establishes that only confidential communications are protected by the privilege. Not all communications between a lawyer and a client are, in fact, confidential, and so should not be topical to this debate.
I also Value Justice. Aristotle defined justice as giving each their due--a notion John Rawls builds upon when he writes, "those who engage in social cooperation choose together the principles which are to assign basic rights and duties and to determine the division of social benefits."  This distribution of social benefits must, Rawls emphasizes, be done fairly, because only fair mechanisms can properly assign and distribute one's due. An unfair system is likely to give disproportionately, granting some people more than what they are due, and some people less than what they are do. Therefore, justice, at its core, is also an issue of fairness. In this way especially, justice is designed to protect the vulnerable from the powerful.
Thus, I offer the Criterion of the Veil of Ignorance. Rawls observes that "the principles of justice are chosen behind a veil of ignorance. This ensures that no one is advantaged or disadvantaged in the choice of principles by the outcome of natural chance or the contingency of social circumstances. Since all are similarly situated and no one is able to design principles to favor his particular condition, the principles of justice are the result of a fair agreement or bargain," made behind the veil.  Rawls then posits two traits of justice, noting that "inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone's advantage, and (b) attached to positions and offices open to all."  From this, we can extrapolate two things: an act is just if, and only if, it is both advantageous for the vulnerable and it is equally applied.
My Sole Contention is that attorney-client privilege is essential to protecting the vulnerable, i.e., those facing prosecution.
Prof. Thomas Glynn writes, "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."  Prof. Harry Subin furthers, arguing, "In order to paint a complete picture about the matter about which the client has sought legal representation, he or she 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."  The Harvard Law Review concludes: "privilege preserves the ability of laymen to defend themselves vigorously and thereby assures them that the law will be applied justly." Ultimately, this evidence illustrates that the vulnerable would be severely disadvantaged without attorney-client privilege. Without it, the vulnerable have no viable means of defense, and are at a severe and unfair disadvantage in the judicial process. The California Law Review furthers, asserting, "Active, partisan advocacy...is impossible when a defense attorney is expected to give evidence to the prosecution while he is supposed to defend his client. Without the attorney-client privilege, defense attorneys could routinely be subpoenaed to give evidence against their clients...active, partisan advocacy can only be achieved if the attorney cannot be required to divulge his client's confidences to the prosecution...To provide effective legal assistance, an attorney must investigate the facts of his client's case. A proper investigation can only be made if an attorney is able to communicate with his client and ascertain the client's version of the facts." 
In conclusion, if you believe that attorney-client privilege is vital to ensuring the fair treatment of the vulnerable, then you must negate the resolution, as it is the only way to fully achieve Justice.
V: Justice - here we agree; the value for the round is Justice. Pro defines justice as "just behavior," but what does this actually mean? Just connotes fairness and impartiality. A judge who has decided that case before he has heard the facts is not a judge, but an executioner. Hence, the notions of fairness and impartiality inhere within our value.
C: Understanding Truth - Pro asserts, incorrectly, that justice requires absolute truth. In fact, it does not. Let us return to the example of the judge: if the judge knows all there is to know about something, he is not actually judging anymore, he is sentencing. Black's Law adds that justice is the "fair administration of the laws." Is it fair to a criminal to deny her a defense? Is it fair for the judge to walk into the courtroom and declares: "I know all there is to know. There is no need for a trial--I sentence you to prison!" Truth is not an end in itself. Certainly, some truth is necessary, but it is not clear that it is important enough to supersede my right to justice. Therefore, my first point against Pro' criterion is that fundamentally misunderstand justice as fairness. Therefore, it cannot achieve the value because it ignores other components that go into justice, including rights, impartiality, etc. Secondly, "truth" is a highly subjective term. The police have a clear motive in eavesdropping, intercepting, or otherwise acquiring information: they want convictions and arrests. This could lead to creative interpretations of audio-recordings, selective editing, and so on. This is truth only from one side. Thirdly and lastly, I can understand what truth is without knowing it. My opponent's criterion, as argued, is more so "finding truth" which is a different matter entirely. I can certainly understand truth, and thus can link into this criterion, unless Pro would choose to revise his earlier criterion.
C1: Truth as essential to justice - I have two rebuttals here.
(1) Only a small group of innocents are actually convicted each year.
Pro says 10,000 innocent people are convicted each year. Yet, 6,000 people are convicted of crimes each year in the state of Connecticut alone.  Connecticut is a relatively small state, and when considering how many people it locks away each year, we must assume the U.S. figures are astronomically high in comparison to Pro's drop in the bucket. So, is it better to violate the privileges of tens of thousands, or just the rights of ten thousand? Moreover, "Bureau of Justice Statistics doesn't track exonerations,"  so all Pro's information is coming from outside sources that lack full, unimpaired access to the BJS's databases.
(2) Attorney-Client Privilege is a Constitutional guarantee
According to the California Law Review: "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. Without the attorney-client privilege, defense attorneys could routinely be subpoenaed to give evidence against their clients...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 with his client and ascertain the client's version of the facts. Without the attorney-client privilege, however, the client would be reluctant to confide in his attorney...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." 
C2: Truth as more important - here again, I have two points
P: Fairness is a prerequisite to justice
P: ACP increases fairness
C: ACP increases justice
(2) Justice is about the fair acquisition of truth, not about truth itself. If it is unjust to act unfairly, then acquiring the truth via unfair means is still unjust. Justice wants truth, but not at all costs. To paraphrase Kant, justice is not the doctrine of how we can attain truth, but rather of how we can do so fairly.
1 - http://www2.econ.iastate.edu... (my copy of the text is just slightly different from the online one)
2 - Glynn, Thomas P., 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 70
3 - Subin, Harry I., 1985, "The Lawyer as a Superego: Disclosure of Client Confidences to Prevent Harm," 70 Iowa L. Rev. 1091, p. 1132
4 - Dashjian, Michael B., 1982, "The Attorney-Client Privilege and the Criminal Defendant's Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1052-4
5 - http://www.cga.ct.gov...
6 - http://www.thenation.com...#
Concerning the value of Justice I would like to point out that John Rawls argues for distributive justice, not necessarily justice itself. According to http://plato.stanford.edu..., "Principles of distributive justice are therefore best thought of as providing moral guidance for the political processes and structures that affect the distribution of economic benefits and burdens in societies." I fail to see how this applies to the criminal justice system. Distributive justice and criminal justice are two different areas of justice.
Concerning the value criterion of veil of ignorance, again this applies to the fact that Rawls argued an economic philosophy that included primarily provision of welfare.
In your contention, you assert a disjunction between truth and justice. However, is a lack of truth inherent in justice? There seems to be a flaw in a system which works under that premise. Under the attorney-client privilege, the client could reveal incriminating evidence to his/her defense attorney, and the only way it will be found is if the attorney reveals that. Now this would most likely be considered confidential under the attorney-client privilege, and while it is a somewhat extreme example, it is necessary for out understanding nonetheless. I will continue my response to this in the defense of my case in the next paragraph.
The attack on my value is somewhat mislead. There seems to be a lack of principle involved in the argument. This is in fact a debate of principle, so let us examine it. Given the example of a judge who knows the facts (not that he merely thinks he knows the facts), it is impossible to be partial. A fact is true no matter the source. If all facts are known and nothing is excluded, then the proper judgement is even easier to make.
Concerning my criterion I have a similar response. However, I should add that I am arguing epistemologically which is the study of knowledge. I'm also arguing under the ideal situation (as Lincoln Douglas is designed for) that the whole truth be understood. This is important, since in order for one to have knowledge,they must understand the knowledge otherwise it's faulty. Therefore, understanding truth is vitally important, and it is how I achieve my value of justice.
Concerning the first attack under my first contention, I would like to point out that a matter of justice cannot be brushed off by a small statistic. The number falsely convicted may not be very large comparatively, but 10,000 situations of injustice is enough for there to be considerable injustice. It's nearly equivocal to saying the Boston Bombing wasn't worth worrying about because there were only a few casualties out of the hundreds that were in the vicinity.
Concerning the second attack, it's necessary to understand that we are currently questioning the Constitution. Asserting the Constitution is simply a reassertion of the con's side of the resolution. If anything it's begging the question. What we need to focus on is the principle of each idea and not the constitutionality.
Onto the attack of my second contention, the method of acquiring truth doesn't matter. What matters is that truth is known. If the method is what matters then truth can be lost or hidden by the processes of determining truth. So long as the truth sought is the whole truth, as the term "truth-seeking" would imply, the methods of finding that truth are irrelevant. Once truth is understood, fair judgments may be made. Half truths or partial truths do not lead to an accurate understanding of a criminal case, and therefore, justice cannot be made with these truths.
V: Justice - Pro is attempting to render my framework irrelevant by mistakenly labeling it as a distributive system. True, Rawls argued for distribution of resource, but he also held deontological views of rights. Rawls believed that, under a veil of ignorance, society would create rules that would benefit the disadvantaged, and that these rules would function as absolute protections. From this he surmises that societies would implement distribution of resources as ONE of MANY programs to protect the vulnerable. What this shows us is that distribution arises from Rawls's idea that justice = fairness; but, more importantly, distribution is only one very small facet of Rawls's argument.
My focus, throughout my case, has not been on "distribution," but rather on the reason that lead Rawls to support distribution; in other words, my focus has been on fairness. Justice, at its core, is fairness, and society, under the veil, would make rules that are fair, and that are designed to protect the vulnerable. Distribution is one of those rules, but so too is attorney-client privilege.
In this way, Pro FUNDAMENTALLY MISCONSTRUES my value premise for this round. Justice is fairness and equality, and, under the veil, it would only be fair to institute attorney-client privilege as an absolute right. Pro attempts to twist my value of Justice into one of distribution, but that is neither true to Rawls or true to my own presentation of my framework.
Even if you buy none of what I have said, distribution of rights still matters in this debate. We should be distributed what we are due, and we are due due process of law. If you buy that, you can vote Con, because I show in my contention that due process is a due owed to all persons arising from the fairness doctrine and the veil of ignorance.
C: Veil of Ignorance - cross-apply my defense of Rawls's theories here. In fact, Rawls is not an economic theory, it is a justice theory. Yes, justice has an economic component, but it also has a rights component, which is deontological in nature. As I said before, I am focusing not on Rawls's economic ideas, but rather his ideas concerning the nature of rights. Pro's own source even states, "Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only those liberties, are to be guaranteed their fair value. "  This quote directly supports the two criteria for justice I offered in my constructive: (1) rules must be equally applied/the same for all, and (2) advantageous to the vulnerable/fair. Pro's own source supports my earlier claims--extend these points. An action is just if, and only if, it can meet BOTH of these criteria. If I can show that Pro violates either one of these criteria, we must vote Con.
Extrapolation: Pro basically misinterprets my application of Rawls's philosophy within this round. He does not actually clash with the interpretation I am offering, so my points go unrebutted. Extend them all. At this point, there are no applicable attacks against my framework, and so we should default to my V and C to evaluate the round.
C1: Pro claims that I "assert a disjunction between truth and justice." In fact, I do not. My assertion is that rabid, at-all-costs truth-seeking is detrimental to fairness, and consequently is detrimental to justice. There is nothing wrong with the truth as such, and we should try to find the truth within the confines of respecting attorney-client privilege. Truth-seeking is good, except when it is placed above procedural checks designed to protect the vulnerable. Additionally, The Harvard Law review observes, "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.""  This evidence shows how there is, as a matter of course, no disjunction between truth and privilege; privilege is no a barrier to truth-seeking.
Moreover, Pro DROPS the ALL the following arguments: (1) attorney-client privilege is necessary to prevent a client from self-incriminating (catch 22), (2) attorney-client privilege is necessary to ensure the accused have an adequate defense, (3) truth-seeking at-all-costs undermines the system. Extend all points--they go unrebutted. They clearly illustrate how I am achieving my framework by promoting judicial fairness, and how Pro is failing to do so.
V: Justice - it seems that we agree on the name of our value, Justice, but not on what it means. If "just" indicates impartiality and fairness--an argument that is DROPPED by Pro--then it seems that my interpretation of the value should be preferred. Justice is not just giving each their due, it is giving each their due fairly. In fact, we are due fairness, because without it, any number of horrors could be subjected upon us in pursuit of some nebulous, subjective truth. Consider, a cop believes--based on no reasonable suspicion whatsoever--that there is incriminating evidence in my home. He ransacks my house and finds something, and arrests me. The cop's actions are justified under the truth-seeking doctrine; the ends are justifying the means. But the fact that the means were inherently unjust and wrong taint the ends, and render them unjust was well. There must be limits on truth-seeking, otherwise nearly anything could be justified in pursuing it. That is not justice--remember Black's Law saying that justice connotes "fair administration of the law."
C: Truth - Let me clarify something. LD is not designed to talk about the "ideal world," but rather the "philosophical world." Simply because Pro says he will seek truth does not mean he will necessarily find it--that is not automatically granted to him because LD is philosophical. Therefore, epistemologically, he may never obtain the truth, and thus never further that knowledge.
Furthermore, Pro DROPS the following points I made against his Criterion: (1) his interpretation of justice as understanding the truth ignores other components vital to justice, including respect for rights, impartiality, etc. (2) truth is inherently subjective; there is always interpretation involved.
(1) Pro concedes that very few innocent people are convicted. Cross-apply my Harvard evidence  which shows that attorney-client does not unduly harm truth-seeking. Finally, allow me to reiterate that if we buy that judicial fairness trumps truth-seeking, then, while those tragedies are certainly bad, on balance, attorney-client privilege still outweighs.
(2) Pro absolutely DROPS that attorney-client privilege is a Constitutional guarantee. Extend this point. This shows that fairness is an essential part of our justice system, and functions as a check against the rabid truth-seeking I've talked about. Pro's only quibble here is that we are questioning the Constitution. I disagree. The resolution says within "the U.S. criminal justice system" which implies a discussion of U.S. laws and customs. Pro could have argued that the Constitution only gives very limited privilege rights, but he did not. Instead he decided to dismiss the Constitution altogether. Pro wants to talk about principles, but does not the Constitution enumerate our core principles as a nation? Does the principle of following the Constitution itself not matter? Moreover, when we look at my analysis, the principles that everyone has a right against self-incrimination and a right to effective counsel necessitate attorney-client privilege.
C2: To paraphrase Kant, justice is not the doctrine of how we can attain truth, but rather of how we can do so fairly. Pro says erroneously that the means of acquisition is irrelevant, but is it really? If that cop ransacks my house, can we really say he did nothing wrong--especially if he had no reason to search it. That is arbitrary and random exercise of power, which is inconsistent with our social contract, but Pro would say that such acts are okay because they obtain truth. But again, truth is subjective, not always attained, and nebulous. So, we would be justifying horrendous acts for uncertain gains.
My ultimate point is best encapsulated by the syllogism I offered earlier:
P: Fairness is a prerequisite to justice
P: ACP increases fairness
C: ACP increases justice
1 - http://plato.stanford.edu...
2 - Dashjian, Michael B., 1982, "The Attorney-Client Privilege and the Criminal Defendant's Constitutional Rights," California Law Review, July, 70 Calif. L. Rev. 1048, p. 1052-4
Thanks for a great debate thus far!
Concerning my opponent's value of justice, I don't disagree that the definition provided and the way it's used through the case is cohesive. I do disagree that it comes from the right source. Fairness in justice as a directly disputable matter applies more directly to Rawls' concept of distributive justice, which if you read the Stanford article on it, the fact that its relation to the criminal justice system is obscure.
That sounds like an argument for fairness as justice. It has that concept written all over the article. It does not, however, sound like an argument concerning confidential information between an attorney and client. The link is minimal if existent at all.
Now to more specifically attack the veil of ignorance, it is not part of the principle of truth to have this in place. Truth requires there to be no veil. It requires that lookers be examining it for what it is. Any truth that is hidden skews the perception of any given topic. This is not a good thing when considering the criminal justice system.
Concerning my opponent's first contention, I'm confused by the statement at the end "privilege is no barrier to truth-seeking." On one hand it seems self-refuting to argue that as the argument logically follows that privilege assists in truth-seeking which means truth seeking is logically valued above privilege. On the other hand, it seems to be a contradiction in that privilege is for the purpose of restricting truth-seeking.
Concerning the dropped arguments, I believe my position on them has been skewed. Yes, attorney-client privilege stops self-incrimination. If you read through my arguments, I actually address that issue. If someone has some dirt they uncover and that's held as confidential, the justice is indeed being barred. Concerning the adequate defense argument, I believe my argument was somewhat unclear, but what I advocate is that the ultimate goal of justice is not that the defense attorney did his job but that a just ruling was made. Therefore, that's an irrelevant point. I do believe I addressed the argument of the system. The problem is that the goal of the pro is to alter the system since the argument is that the system is flawed.
Concerning the attack on my value, I feel it's necessary once again to bring up the nature of this debate. My job is to advocate for the best truth-seeking principle, and other ideas of truth-seeking don't bear relevance to my case as it's not part of my advocacy. I argue for actual truth-seeking, not police abuse of power.
Now concerning my value criterion, I believe we're coming from different styles of Lincoln Douglas debate (even under the NFL it changes based on state traditions). However, I merely need to prove that the ideal principle of truth-seeking is preferable to the ideal principle of attorney-client privilege.
Concerning the other attacks I believe I actually did state something along the lines of "one cannot be partial to facts." When the whole truth is known, which can only be solved through truth seeking, the full picture is created, and it's very difficult to see how the build up of truth to the whole truth skews a judgment in any direction. This also went along with the argument of subjectivity.
Concerning the two attacks under my first contention, there is a point where justice, fairness and truth are all in the same boat. It would almost seem the con is arguing that truth should not be included in this group while simultaneously stating it should. When we have the whole truth, fairness and justice follow. One would actually have to consciously try to use the whole truth to obscure justice and fairness and those people will commit the crime either way.
Concerning the constitution, the resolution does not specifically say "constitution" but like I said, we're debating the system. The con cannot use the system to prove itself. Like I said, that's begging the question. Saying the constitution is the reason our constitution ought to be followed is like me saying the attorney-client privilege is bad because it's bad.
Now, onto the last attack, I'm sorry, but I must disagree with Kant. Now Kant would be more in favor of saying the ends cannot justify actions. I'm arguing the other way around. The goal of truth-seeking is to squire the whole truth. The whole truth is necessary to justice, therefore justice does not act as a prerequisite to truth. Even firer, method is not a prerequisite to truth, only a restraint some feel it necessary to put on truth-seeking.
Ultimately, the principle of truth-seeking ought to be considered more important or better than the attorney-client privilege. The moral good should not be preceded by law or a method to the moral good. Whole truth is necessary to justice, and attorney-client privilege restricts the truth-seeking process to acquire the whole truth.
Thank you for a great debate, and now I leave it up to you and the voters to finish the process of this debate.
V: Justice - Pro agree with my definition and interpretation of justice. This is sufficient for the purposes of this debate, regardless of the source. Moreover, Pro drops my lengthy analysis of Rawls's argument, which can best be summed up in three succinct points: (1) justice requires us to help the vulnerable, (2) rights are deontological and absolute protections, (3) distribution helps the vulnerable, but so do many other things, including the right to life and attorney-client privilege. Rawls's theory is not defined by distribution, as Pro would have us believe. Rather, it is defined by an enduring belief that justice requires us to treat everyone fairly and equally, and that the vulnerable should be protected. This belief gives rise to the notion of distribution, but the belief itself is not characterized by what it begets. For example, libertarians believe that government should be limited, but this is not their only, or even their primary, belief. The same can be said of Rawls's notion of justice. Distribution is a component, but so too are the need to protect the vulnerable and the need to be fair.
Therefore, Rawls's ideas have direct relevance to the topic at hand. Those accused of crimes are vulnerable. This is something I have always contended, and my opponent has NEVER disputed. As I said in the tagline of my contention in my very first speech: attorney-client privilege is essential to protecting the vulnerable, i.e., those facing prosecution. Consequently, if we accept that attorney-client privilege has tangible benefits to the vulnerable, and that it is a right, we must also accept that it is an absolute, inviolate protection under Rawlsian Theory, and therefore trumps truth-seeking efforts.
C: VOI - Here I have shown how Pro's own source directly bolsters my own claims. Pro also NEVER addresses the fact that there are two criteria inherent within justice: rules must (1) be the same for all and (2) be advantageous for the vulnerable. If justice requires rules to be advantageous for the vulnerable, like those accused of crimes, then the only way to ensure justice is to equally attorney-client privilege, which protects the accused.
Pro makes a new argument here in the final round regarding the notion of a "veil." The veil serves a purpose in obtaining an objective, impartial view of justice. There is no actual "veil;" it is merely a thought experiment through which one can abstract oneself from the confines of society to think about moral norms in a different way. Thus, there is no actual loss of knowledge. Moreover, even if the veil where real, it is only a temporary occurrence that would soon restore truth after the creation of moral laws. It seems as if Pro does not understand Rawls's argument here. Behind the veil, truth is actually a bad thing because it allows us to be biased. If actors behind the veil knew that they would be rich in the real world, they would create rules that benefit the rich--this skewing of the system would be inherently unfair. Thus, truth in that case would actually be harmful. Finally, I am not saying that the criminal justice system should be under a veil, rather that rules from under the veil should be applied in the system. Thus, we are not hiding truth from the law enforcers as Pro seems to imply. Most importantly though, this argument of Pro's is new in the last round, and therefore illicit.
C1: Pro says he is confused by the notion that privilege is not a significant barrier to truth. Here is my explanation: attorney-client privilege encourages a client to reveal, in secret, incriminating information to his attorney. The attorney cannot reveal this information to the court due to the privilege. Conversely, in a world without attorney-client privilege, client's would not reveal incriminating information to their attorney. The attorney cannot reveal this information to the court because his client has not given him the information. In both scenarios, one with privilege, one without, the exact same information is withheld from the court, meaning that regardless of which scenario you choose, there is no tangible benefit to truth-seeking efforts. Logically then, privilege is not a significant impediment to truth. This analysis was laid out more succinctly in my Harvard evidence  and can be extended. Pro NEVER rebuts this evidence; this will become significant in the debate.
DROPS: Pro asserts that the arguments he dropped last round are not vital insomuch as those rights are unimportant in the face of truth-seeking. Sure--I'll grant that if you buy truth-seeking then you buy that these rights are so important. But, if you buy my fairness interpretation, which treats rights as things which cannot be violated, then you must accept that I am upholding my framework through these points.
V: Justice - Pro contends that he can argue the ideal--that is not what LD is about. LD is about philosophical clash, not ill-defined utopian societies in which police never abuse power. Philosophy recognizes the fact that the world is not perfect, and therefore both Pro and Con must confront that reality. My argument here is that truth-seeking NECESSARILY involves an abuse of power. To argue for truth-seeking, we must argue for the restriction or wanton dismissal of a right, in this particular case the right to attorney-client confidentiality. By trampling upon that right, authorities are NECESSARILY abusing their power. If you refer back to the cop example I offered, you can see relevant parallels. Just as the cop ransacked the house to discover incriminating evidence, so too will officials violate your private conversations to discover incriminating statements. Both are fundamental incursions into your rights sphere--one is a violation of the sanctity of your property, the other is a violation of the sanctity of your privacy. If Pro asserts that rights can be violated in one case in order to find the truth, I do not see how Pro can claim that other such violations would be preventable.
Pro tries to say that he doesn't have to defend the cop example because of the nature of LD. Yet, if he defends truth-seeking as a doctrine of the criminal justice system, which is his burden, he must also defend the cop ransacking the home for this reason: there is no non-arbitrary distinction between it and loss of privilege. Pro has never even TRIED to differentiate between these two cases. Therefore, if one is permissible, so too is the other. The ends do not justify the means, as Pro himself implies when he shuns the idea of the cop ransacking the home. This example, and Pro's reaction too it, destroy the idea that we can justify the search for the truth based on the results we achieve.
Let us apply this analysis to an example Pro has brought up in the course of this debate. Pro says it does not matter how the evidence was acquired as long as the verdict is correct. But, inasmuch as Pro agrees that the cop's actions were wrong, Pro defeats his own argument because it DOES MATTER how the evidence is collected. The process must be fair in order to legitimate the verdict. Therefore, if the judicial process is unfair--as my contention one proves--then we must VOTE CON.
C: I have already addressed what LD is. Cross-apply my evidence  here--privilege is not barrier to seeking the truth. Thus, I'm not precluding linkage into Pro's C. Moreover, truth is subjective. If this is so, we can never understand it absolutely. Therefore, epistemologically, Pro CANNOT achieve his own C of understanding truth--it's not comprehensible in that sense.
Pro states that we cannot be partial to the facts--yet, we can still interpret those facts partially. If you give two lawyers the same piece of evidence--the same fact--they can come up with alternative interpretations of what occurred. Thus, truth, what happened according to the fact, is indeed subjective.
(1) Again, Pro concedes that few innocents are harmed. Also, because privilege does not impede truth-finding, privilege won't actually cause innocents to die.
(2) I hardly think the Constitution is the system. It informs the system, but it is not the same thing as the system. There a hundreds of codified rules and law as well as judicial customs that make up the system. My argument is that there are certain fundamental rights expressed within the Constitution that must be upheld within that complex system. I am using Constitutional rights to prove a concept that has grown out of custom--that's not begging the question. Moreover, Pro drops that the Constitutionality is an important principle--earlier Pro argued that we should debate principles, and I have met that standard here.
C2: Cross-apply Harvard  and my rebuilt Cop example/clarification here.
1 - Pro concedes my interpretation of justice. Therefore, justice is fairness. It is not fair to further disadvantage the vulnerable, i.e. the accused
2 - Privilege does not impede truth-seeking. This takes out a lot of his offense against my case, because Pro claims that I am preventing the acquisition of the truth. In fact, I am doing no such thing.
3 - The Cop example goes Con. It shows that the process must be fair in order to legitimate the verdict. Therefore, if the judicial process is unfair--as my contention one proves--then a Con ballot is in order.
Ultimately, privilege provides due process protections for the vulnerable and increases judicial fairness while not actually impeding truth-seeking goals. Therefore, privilege is beneficial and fair, and ought to take precedence in this debate. Thank you, and VOTE CON!
1 - Dashjian, 1982, "The Attorney-Client Privilege...," CA Law Review, No. 70, p. 1052-4
1 votes has been placed for this debate.
Vote Placed by YYW 2 years ago
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Reasons for voting decision: This was an interesting debate. While there were a lot of things discussed which were precariously close to breeching beyond the scope of the resolution on both sides, CON takes a narrow victory because even though there was some general confusion about the implications of John Rawls' veil of ignorance, among other things, because the resolution requires that we evaluate justice in an American context, CON essentially argued that valuing attorney client privilege over truth seeking is foundational to the protection of the least advantaged (the accused) by protecting their rights. PRO seemed to miss what prioritizing "truth seeking" which, albeit, is an incredibly vague term, would mean for the criminal justice system while misunderstanding how it works and because of that his arguments -while moderately interesting- were not convincing. Both sides talked around themselves more than would be advisable in an LD debate, so both sides should tighten their arguments in the future. Cheers.
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