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

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Voting Style: Open Point System: 7 Point
Started: 10/8/2014 Category: Economics
Updated: 3 years ago Status: Post Voting Period
Viewed: 2,067 times Debate No: 62923
Debate Rounds (4)
Comments (13)
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First round is acceptance. National forensics league rules apply. Keep it clean and share resources for validation purposes.


I'm going to assume this is the Nov/Dec 2013 LD topic: "In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege."

I accept the negation position.
Debate Round No. 1


This resolution seems debatable, right? I mean, there is a balanced division between Aff and Neg, right? If you think there is, it may be better to skip this part of the analysis and go straight to the Aff and Neg positions.
Attorney-client privilege has been protected for around 400 years and is designed to enable a free and open communication between lawyers and their clients. Apparently this resolution is asking to consider that "truth-seeking" should come first. Maybe it is not so clear what that means. I confess, this particular resolution is difficult for me. Due to the way it is worded, there are alternate interpretations which can greatly alter the nature of the debate. At first brush, the topic seems understandable enough. It seems to be suggesting we should value truth-seeking over attorney-client privilege. From a legal and practical point of view given 400 years of legal precedence, this seems like a very difficult case for the Affirmative. However, in a philosophical universe, should we desire to live in a world in which truth takes precedence over privileged communication?

criminal justice system
There are lots of definitions for criminal justice system and they are all pretty similar. Therefore I have chosen a representative definition from the National Center for the Victims of Crime :
The criminal justice system is the set of agencies and processes established by governments to control crime and impose penalties on those who violate laws. There is no single criminal justice system in the United States but rather many similar, individual systems. How the criminal justice system works in each area depends on the jurisdiction that is in charge: city, county, state, federal or tribal government or military installation. Different jurisdictions have different laws, agencies, and ways of managing criminal justice processes.1 The main systems are:
State: State criminal justice systems handle crimes committed within their state boundaries.
Federal: The federal criminal justice system handles crimes committed on federal property or in more than one state.
I use this definition to make a point about the wording of this resolution. When we speak of the criminal justice system, is the intention we should consider within the boundaries of the United States, the criminal justice system, regardless of its jurisdiction, or should we interpret this to mean "the U.S. criminal justice system" meaning the system whose jurisdiction is U.S. federal law?
Here again we have a potentially ambiguous term. Without the hyphen we may be inclined to define the two words separately and thus, we have the idea of trying to find out the true facts. As a hyphenated term, the meaning can change to describe the process of understanding the truth about past crimes and atrocities so as to avoid repeating them:
ICTJ (undated):
"Repressive regimes deliberately rewrite history and deny atrocities to legitimize themselves. Truth-seeking contributes to the creation of a historical record that prevents this kind of manipulation. It can help victims find closure by learning more about the events they suffered, such as the fate of disappeared individuals, or why certain people were targeted for abuse."
The latter interpretation deals with the values centered around the right to truth. No matter how it is split up, putting an absolute definition on the work "truth" is notoriously difficult.
We could claim truth is a value, or at least knowledge of "what is true" is a value desired by humans and while we may never know absolute truth we may attain a certain confidence that what we know is true because all manner of investigation confirms it to be true.
Merriam Webster defines truth as the quality or state of being true and true is defined as agreeing with the facts; or the quality of being real or genuine. It defines seek(ing) as to search for (someone or something) : to try to find (someone or something); to ask for (help, advice, etc.); to try to get or achieve (something).
To take precedence over: Merriam-Webster defines precedence as "the condition of being more important than something or someone else and therefore coming or being dealt with first". It is an interesting that its meaning suggests a thing which is considered first in time order.
attorney-client privilege
For this definition, I refer to the American Bar Association :
"The classic definition of the attorney-client privilege was articulated by John Henry Wigmore as applying "[w]here legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection may be waived." While Wigmore's formulation specifically relates to communications made by the client to the lawyer, the modern approach in most U.S. jurisdictions protects communications from the lawyer as well. However, don't be surprised by the argument that the lawyer's answer to the client may only be protected if it, in turn, would reveal the client's question. In any event, the purpose of the privilege is usually stated as meant to ensure full and open communication, candor, and confidentiality between the lawyer and the client."
Interpreting the Resolution
For me there are dilemmas in the wording of this resolution. First, we can't really ascertain the jurisdiction of the criminal justice system in question. In some cases, if we assume it pertains to investigations at the federal level, we can limit the application to specific examples where knowing the truth can make the difference between a successful or thwarted terrorist attack. Of course, we can still use that example if the jurisdiction of criminal justice can be interpreted to mean any system of justice within the borders of the U.S. But if we allow it to mean any justice system, then because there are no other limitations, any confessions made to a lawyer during a legal investigation can be revealed even if the matter is not one of grave national interests. Without limitations, confessions made any in kind of misdemeanor or for that matter, non-criminal civil case could be revealed in the name of "truth-seeking". In my opinion, this places a very high value on knowing the truth (which of course, we cannot adequately define). If clients stop talking to attorneys because they know anything they say can be revealed, it will not necessarily make it more difficult to arrive at the "truth" but it will mean the client may not be properly defended since the legal counsel will not know the whole truth either.
So how do we interpret this resolution? Is the intent to limit the debate to generally specific high-impact examples or is it strictly a matter of pitting the need to know against privileged communication regardless of the real-world impacts? Perhaps, as one interpretation suggests, the intent is to limit the debate to fact-finding, truth-seeking commissions set up to investigate crimes against humanity. It is more appealing for me to limit the jurisdiction to the federal justice system (but believe me, that position is hardly ideal) as opposed to pitting truth against privileged communication in all its manifestations but based on the very open wording, it seems to be what the NFL is asking us to do. A very interesting case, in Massachusetts questions, does attorney-client privilege still apply if the client is deceased?
[John Rawls, moral & political philosopher and professor at Harvard, The Theory of Justice, 1974]
"Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust."
If we understand "truth" as accuracy and fairness in thought, then we can also understand "justice" as accuracy and fairness in law and social institutions. You can thus argue that truth-seeking is foundational to justice, and therefore the courts system as a whole. Of course, you must be prepared to have a debate about what constitutes accuracy and fairness!


== Resolution ==

I agree with all of my opponent's definitions, save one. "Truth-seeking" does not take on a special meaning merely because it is hyphenated. It is hyphenated to make clear that truth is the object -- not the subject -- of the word "seeking." I accept my opponent's definition from Merriam-Webster's that "truth-seeking" means the "search for (something)" that is "real or genuine."

Lastly, some resolutional analysis. For truth-seeking to "take precedence" over the attorney-client privilege, whenever the two come in conflict, my opponent has to argue that truth-seeking should prevail. Because in a court-room setting, we are *always* seeking the truth, in practice, there would be *no* attorney-client privilege because truth-seeking would *always* take precedence. Thus, my opponent has the burden to prove that the attorney-client privilege should be abolished.

== My case ==

1) Rights of the accused

The Fifth and Sixth Amendments to the Constitution acknowledge a basic aspect of human dignity: it doesn't *just* matter *that* you convict people of crimes, but it matters *how* you do it. Beating a confession out of someone is not permitted. Breaking into someone's house to search for evidence while he is away is not permitted (without a warrant). Throwing someone in jail without a trial is not permitted. Likewise, forcing someone's lawyer to testify against him is *also* not permitted and is the subject matter of today's debate.

The attorney-client privilege is an evidentiary privilege which holds that any conversation between an attorney and client is not admissible in court. Without it, a defendant's lawyer would always be called to testify and tell the jury *everything* that his client told him.

There are two implications to this:

First, without the attorney-client privilege, no one would trust their lawyers. The American Bar Association explains, "The relationship between lawyer and client is in many respects like that between priest and penitent. Both lawyer and priest are bound by the bond of silence . . . Proper representation of a client calls for full disclosure by the client to his lawyer of all possibly relevant facts, even though such facts may be the client's commission of prior crimes . . . To encourage full disclosure, the client must be assured confidentiality. Frequently, clients have a disposition to withhold information from lawyers. If the client suggests that his confidences will not be adequately protected or in some way be used against him, he will be far more likely to withhold information which he believes may be to his detriment or which he does not want generally known." [1]

Without trust in lawyers, lawyers could not mount an effective defense. The court in People v. Belge explained, "Our system of criminal justice is an adversary system and the interests of the state are not absolute . . . A trial is in part a search for truth, but it is only partly a search for truth. [It is also about fairness to the accused, which includes a right to effective assistance of counsel]. The effectiveness of counsel is only as great as the confidentiality of its client-attorney relationship. If the lawyer cannot get all the facts about the case, he can only give his client half a defense. This of necessity involves the client telling his attorney everything remotely connected with the crime." [2] Ultimately, in People v. Belge, the attorneys decided that their client should confess not only to the crime he was accused of, but also to other as-yet undiscovered crimes in order to plead the insanity defense. The insanity defense in particular requires that clients are able to be forthcoming about past crimes with their attorneys.

Without an attorney-client privilege, people are effectively denied counsel because they cannot be forthcoming and truthful with their lawyers and are denied *effective* assistance of counsel, which is a core part of the right to counsel (as the Supreme Court explained in Strickland v. Washington). For the Sixth Amendment guarantee of the right to counsel to mean *anything*, it must include the right to speak candidly with counsel.

The criminal justice system is undermined by forcing attorneys to testify against clients from the optics alone: it looks bad. It looks like the state coercing someone you trusted to testify against you.

The right against self-incrimination [Fifth Amendment] is also implicated. If people tell their lawyers something in confidence and then the state compels their lawyer to testify against them, they are effectively compelled by the state to provide the very testimony that will convict them (through the conduit of the attorney). In addition, if the lawyer *does* testify against them, clients are *forced* to take the witness stand (even if they don't want to) to explain or contradict what the lawyer said. This compels testimony against yourself.

2) Not effective and counter-productive

Abolishing the attorney-client privilege would do nothing because attorneys would simply advise their clients *not* to tell them anything because they can and likely will be compelled to testify at trial against their client. In fact, a failure to advise a client in this way would be *malpractice* if the attorney-client privilege were abolished. Lawyers will simply ensure that their clients tell them nothing. Thus, abolishing the privilege *does not* enhance truth-seeking, but merely denies fundamental rights to the accused.

In addition, we *want* people to tell their lawyers everything. Lawyers are allowed under the new ABA rules [Rule 1.6] to warn people who are in imminent danger from their client. If a client tells a lawyer that he kidnapped someone and where the victim is (still alive), the lawyer can go tell the police. The ABA rules prioritize *safety* over *confidentiality.* The communication is still privileged (not admissible in court), but it is not "confidential" (meaning the ethics rules allow the lawyer to disclose it). If the privilege rules are abolished and lawyers are effectively required to instruct their client not to tell them *anything*, then in fact, no one *will* tell their lawyers anything, which means we lose out on opportunities to allow lawyers to protect people from their clients.

== Rebuttal ==

My opponent never shows why truth-seeking should always take precedence over the attorney-client privilege. He offers a lot of definitions, but never gives a concrete example of when or why truth-seeking should trump the privilege.

In addition, even with the privilege intact, truth-seeking is still possible. In the current criminal justice system, defendants are found guilty every day. The whole point of having a police state with broad investigative powers and prosecutors devoted to convicting criminals is to ensure that we can uphold the truth-seeking function of the criminal justice system. The state has *a lot* of power. The only thing that protects the lone defendant from the vast power of the state is the defense attorney. And with the defense attorney hamstrung by privilege rules, there is almost nothing protecting the defendant at all. The state has enough advantages and tools in its toolbox to ensure that it can put on its case in court. The state should not have to rely on back-doored self-incriminating testimony by forcing an attorney to testify against his client. The prosecution can already: run various forensic tests, compel other witnesses to testify against you, search your home, and subpoena your computer and any documents you possess. They don't also need to force your lawyer to testify against you.

[1] Zitrin et al, Legal Ethics and the Practice of Law, page 123
[2] same source, pages 121-22
Debate Round No. 2


First off. However, it is not difficult for me to respond that I do not have to win that �€""objective truth�€� is possible to win that having more information improves decision-making ability. For a simplistic example, when choosing what to order for dinner between two options you have never tasted before, you might not be able to determine with flawless accuracy which dish you would prefer prior to tasting them, but knowing information such as what ingredients they contain will doubtlessly improve your chances of making a good choice. Similarly, the courts system will always be fallible, but increasing the quantity and quality of testimony reduces the chances of mistakes.
51% of the population agrees with me. Here is what some people have to say.
""This is a story about an innocent man who languished in prison for 26 years while two attorneys who knew he was innocent stayed silent. Alton Logan was convicted of killing a security guard at a McDonald's in Chicago in 1982. Police arrested him after a tip and got three eyewitnesses to identify him. Logan, his mother and brother all testified he was at home asleep when the murder occurred. But a jury found him guilty of first degree murder.

Now new evidence reveals that Logan did not commit that murder, something that was not new to those two attorneys, who knew it all along but say they couldn't speak out until now.
Attorneys Dale Coventry and Jamie Kunz knew Logan was innocent. And they knew because their client, Andrew Wilson, who they were defending for killing two policemen, confessed to them that he had also killed the security guard at McDonald's - the crime Logan was charged with.
The problem was that the killer was their client. So, legally, they had to keep his secret even though an innocent man was about to be tried for murder."
I know that I would hate it if one of my loved ones was put in jail for 26 years for something they did not do. This story illustrates how Attorney Client Privilege takes away our freedoms."
"I think so The truth provides the only way to pure justice, and the most efficient route to justice would be the path with the most truth. That is why we need to prioritize the truth. In the resolution it says to "take precedence" which means that instead of changing the ways of truth-seeking we could change the attorney client privilege itself, and it is exactly that, a privilege, not a right. So the government could potentially regulate it so as to create exceptions so that we find the most efficient route to justice."
"The social contract demands justice All societies are formed around the social contract. All social contract theories are based off of the idea that the people will give up certain rights, to an extent, in order for the government to protect the populace in some way. The mechanisms for a government to uphold its end of the social contract are its laws. However, for laws to mean anything, they must have authority, meaning that if someone breaks a law, they must be punished, otherwise it would be as if no laws existed at all. The mechanism is simple, but its implementation is difficult. Modern jurisprudence, including attorney client privilege, makes it substantially more difficult for the guilty to be convicted, causing a net decrease in the number of correct verdicts. In these circumstances, the law is not upheld, and the guilty go free, undermining the authority of the law in the process, and, by extension, the social contract itself is undermined."
Read more of these @

Melanie B. Leslie, Law Professor-Benjamin Cardozo School of Law, 2000, "The Costs of Confidentiality and the Purpose of Privilege," 2000 Wis. L. Rev. 31, p. 31

Consequently, the contents of attorney-client communications are extraordinarily relevant and reliable evidence. If the point of litigation is to deduce the truth, why exclude attorney-client communications? Most evidentiary rules further the search for truth. Hearsay is excluded as unreliable, character evidence as unduly prejudicial. The law of privileges is a stark exception because it conceals evidence that is highly reliable and probative. We tolerate attorney-client privilege because we suppose that without it, fear or ignorance would cause clients to omit, slant, or falsify information when consulting attorneys. Perhaps unwittingly, clients would forfeit the opportunity to obtain sound legal advice. The privilege, therefore, enables clients to function effectively in the legal system. The price is the exclusion of relevant and reliable evidence.
The privilege even excludes evidence that is related to, but not necessarily a part of what is covered in by the privilege

Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 67

The protection afforded by the attorney-client privilege and other unqualified evidentiary privileges is distinguishable from the protections afforded by other evidence rules that operate to exclude - e.g., hearsay, opinion evidence, and character evidence restrictions " in two respects. First, privileges not only prevent the use of protected communications at trial but also prohibit adverse parties from gaining access to such communications, even if they contain otherwise relevant information. Privileges protect communications by both parties and non-parties from discovery and other forms of compulsory disclosure. Thus, unlike other legal doctrines classified as evidentiary rules, privileges protect against discovery of relevant information. Of course, the attorney-client privilege does not protect underlying facts or information, which can be discovered through means other than disclosure of the attorney-client communication.

Second, the testimonial privileges, including the attorney-client privilege, are unlike other exclusionary rules because they are not designed to assist in finding the truth by excluding evidence which is unreliable or likely to be unfairly prejudicial or misleading. To the contrary, privileges have the effect of inhibiting, rather than facilitating, the illumination of the truth. Privileges serve to protect other interests that are regarded as sufficiently important to warrant limiting access to relevant evidence.
And truth seeking has always had a very high priority in the criminal justice system.

Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice: Why Our Legal System Fails to Do What"s Right, p. 87-8

With this essentially immoral, albeit perfectly legal arrangement, we have surrounded ourselves with lies, and locked ourselves up within a system that perpetuates further lies. Our jails are filled with people who are incarcerated for all the wrong reasons, a miasmic haze of generalized guilt" unspecified and totally disconnected from the actual events themselves. They sit in jail, and the story of what happened sits with them. And no one seems to care, as long as jails have low vacancy rates. We have bargained away the sanctity of truth for the certainty of a jail sentence. Indeed, the official courthouse records of criminal dispositions are distorted, because they reflect false punishments. A rape is reduced to an assault. Something that is felonious suddenly, magically, becomes merely mischievous. A first-degree offense is lessened to a crime with a lower degree of culpability, stripped down to something less ominous"and less true. We are all ultimately the unwitting victims of a system that subordinates truths to its narrow vision of justice. But isn"t justice all about discovering the truth? Moral and historical justice can"t be accomplished without knowing what happened. This is what people assume courthouses are for: truth-telling, truth-seeking, justice embodied in the very nature, and in all the delicate nuances, of truth itself.
In fact, it seems to be the central purposes of the judicial system.

Bankim Thanki, Queens Counsel, 2011, The Law of Privilege, Second Edition, p. 10-1

With regard to the need for candour, it is hard to find a better judicial statement of the principle than that of Sir James Knight Bruce V-C in the early Victorian case of Pease v Pease.

"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not very channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination"Truth, like all other good things, may be loved unwisely"may be pursued too keenly " may cost too much. And surely the meanness and the mischief of prying into a man"s confidential communications with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness, and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself."
And without it, the moral foundation of the law collapses.

Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice: Why Our Legal System Fails to Do What"s Right, p. 103

Clearly, if justice has any moral legitimacy, it has to reveal truths, and there has to be an integrity to the way in which those truths are discovered. But when lying is tolerated and is seemingly permissible, then the legal systems shows itself to be unworthy and unjust. Nothing thwarts truth more than lying witnesses. It undermines any sense of justice, and shows the law to be a sham. Lying is worse than the mere risks associated with the adversarial process. It"s one thing to accept that the opposing side"s trial strategy was superior. It"s quite another to realize that the outcome would have been different had a witness simply told the truth.
Public faith in the legal system will also collapse unless it remains committed to truth seeking.

Thane Rosenbaum, Law Professor Fordham University & Novelist, 2004, The Myth of Moral Justice: Why Our Legal System Fails to Do What"s Right, p. 17

The law is inured to these practical realities of providing justice. The public, however, finds this situation intolerable, and it contributes to a kind of moral revulsion toward the legal system for its complacency about discovering the truth. Two parties come before the law, each telling a different story. Which story is true, or is there yet another story that approximates the truth more accurately? The public needs to believe that the law can reveal the truth"that it even cares about the truth " as much as it needs to believe that the law can punish offenders and resolve conflicts. But on this treadmill toward resolution, the truth loses traction"the zeal for finality overrides the truth behind the story.

This failure to distinguish facts from truths " what many believe ought to be the law"s central aim"is one source of hostility that artists have long directed at the legal system. How can the law be anything if it"s not about establishing the truth? And why should the public have faith in an institution that professes to be about truth but then delivers a brand of justice that ends up undermining and subverting the truth?
Some proponents of the privilege argue that abandoning the privilege will discourage people from seeking legal advice, but this is not empirically proven.

Edward J. Imwinkelried, Law Professor-U. Cal Davis, 2002, "The Historical Cycle in the Law of Evidentiary Privileges," 55 Ark. L. Rev. 241, p. 254-6

of Wigmore"s treatise, there have been a number of studies on the effect of the attorney-client and psychotherapist-patient privileges. It is certainly dangerous to extrapolate from the available data, because there have been only a few handfuls of studies. However, the findings in the studies are relatively uniform. The researchers have fairly consistently found that: Even absent a privilege, only a small minority of laypersons would be deterred from consulting the professional; without a privilege, perhaps a significant minority of the laypersons would be somewhat more guarded in their communications, particularly written communications, with the confidant; but the vast majority of laypersons would still consult and communicate with their confidants to roughly the same extent. On reflection, these findings should not come as a surprise. As Professor Paschal pointed out in the Senate hearings on the proposed Federal Rules of Evidence, most laypersons communicating with confidants are engaged in primary, pre-litigation activities. Typically, at the time of the communication they have little or no concern about subsequent litigation. Moreover, they often have strong, even impelling, reasons to communicate. For example, if a patient is in intense pain or fears that he or she is dying, the patient is likely to disclose any information requested by the physician regardless of the existence vel non of a medical privilege in that jurisdiction.
And even if it is true that abandoning the privilege will discourage some from seeking legal advice, only those who are guilty would be discouraged from doing so. The innocent have nothing to hide.

Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require Disclosure, p. 61

Bentham, along with some early common-law judges, complained about the immoral impact of the rule of privileged communications, in much the same language as modern conservatives who chide the criminal-justice system for being a game of chance more than a search for truth. If the guilty client is deterred from seeking legal advice (a false defense), the argument goes, there is no harm to justice; the innocent client has nothing to fear, so won"t be deterred.
A related argument of privilege advocates is that the privilege is important for attorneys to provide effective representation, but there is no actual evidence to support this claim. It"s just asserted.

Ronald Goldfarb, Attorney, 2009, In Confidence: When to Protect Secrecy and When to Require Disclosure, p. 64-5

Professor Imwinkelried"s exhaustive examination of the philosophical underpinnings of the attorney-client privilege concludes that the instrumental rationale, although the majoritarian view over time, was based on anecdotal, self-serving, and empirically unsupported proof. The relatively few recent (1960, 1980) studies on the causal relation between clients" disclosures to attorneys and the assurance of a later privilege are inadequate and exaggerated, and thus misplaced, Professor Imwinkelried concludes. That said, he does not question the overall wisdom of the rule, only the rationale for it. Others have questioned the rule"s wisdom, noting that criminal defense attorneys invariably do not want clients to be totally open with them, fearing that if they (the attorneys) know about guilty conduct, they may be prevented from pursuing avenues of defense.
And given how inconsistently the privilege is applied to protect evidence, it is just not that critical to providing effective representation.

Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 85-7

In order for privilege protections to be reasonably certain to a competent attorney looking forward from the time of the communication, the protections must satisfy at least three conditions. First, the scope of the protection that the privilege affords must be clear: confusing, ambiguous, or flexible privilege standards do not offer predictable protection. Second, reasonably certain protections must be generally " or at least predictably " applicable. The attorney must have confidence that protections will apply regardless of the forum " state, federal, or nonjudicial " and the nature of the proceeding or substantive claims that ultimately give rise to assertion of the protections. Finally, privilege protections remain wholly uncertain if they are qualified or otherwise subject to post hoc abandonment or revocation. The current privilege regime fails to satisfy each of these conditions in many circumstances. There is a substantial amount of confusion over a number of fundamental aspects of the attorney-client privilege. Indeed, there are numerous, lingering ambiguities and unresolved doctrinal issues within particular jurisdictions. In addition, there is no guarantee that the privilege protections afforded in one jurisdiction, forum, or type of proceeding will apply in another. To the contrary, there is no generally applicable set of privilege rules and, perhaps surprisingly, limited convergence on key aspects of attorney-client privilege doctrine. These significant inter-jurisdictional conflicts in the law, combined with varying and often unpredictable governing choice-of-law principles, result in uncertain protections. Moreover, modern business, litigation, and conflict resolution practices make it increasingly difficult for an attorney to predict, at the time of a communication, whether the allegedly privileged status of the communication will be challenged in a particular state or federal court, in a proceeding governed by state or federal privilege law, or in a nonjudicial forum, such as arbitral, regulatory, or congressional proceedings. Finally, in many circumstances, privilege protections are tentative or qualified: substantive privilege doctrine sometimes allows decision makers to override, abrogate, or ignore privilege protections, while at other times, attorneys or their clients waive the privilege permanently by involuntary disclosure or by stumbling into one of the traps for the unwary lurking below the surface of apparent protection.

Thus, the protections that the modern privilege affords often are uncertain. The story of the uncertainty in today"s privilege most appropriately begins in the early 1970s, when Congress had a real opportunity to provide national leadership on privilege doctrine but chose not to act. Congress had its reasons for not taking the lead a quarter century ago, but, in hindsight, its inaction ultimately was a major cause for the current, intolerable state of privilege doctrine. Since then, continuing disagreements among state and federal jurisdictions, judicial inattention, flawed judicial policy making, and changing economic, litigation, and dispute resolution practices have contributed to the problem.
The failure of the privilege to facilitate attorney client communications undermines the entire utilitarian rational for the privilege

Thomas P. Glynn, Law Professor, Seton Hall, 2002, "Federalizing Privilege", 52 Am. U.L. Rev. 59, p. 73-4

The utilitarian justification for the attorney-client privilege is premised on the assumption that providing protection for attorney-client confidences will enhance client candor or, at a minimum, foster greater attorney-client communication. Although most courts, practitioners, and commentators accept this assumption outright, it is both disputed and empirically unverified. Skeptics therefore remain, even though most aspects of the modern privilege " including the corporate privilege " are almost certainly here to stay. Despite the lingering controversy, the privilege cannot enhance candor or communication if the protection it affords is uncertain. Thus, for society to reap benefits from the privilege, it must afford sufficiently certain protection for attorney-client communications.
And since the privilege prevents attorneys from disclosing information, it potentially violates free speech.

Fred C. Zacharias, Law Professor Cornell Law School, 1989 "Rethinking Confidentiality," 74 Iowa L. Rev. 351, p. 354

Moreover, it is whimsical to assume that strict rules can remain free from legal attack. Forbidding lawyers to disclose information they feel morally obligated to reveal implicates serious free speech interests. Since the Supreme Court explicitly recognized lawyers" first amendment rights in the early 1970s, attorneys have mounted prospective legal challenges to many speech-restrictive ethical rules that previously seemed immune. A challenge to strict confidentiality is likely to turn on the nature of the empirical evidence for and against a bar"s justifications for its rule. The availability of relevant data will prove important to proponents and opponents of confidentiality exceptions alike.


First of all, **my opponent is cheating**. He loses. This debate has a character limit of 8,000. His Round 3 argument was 30,534 characters. I checked because I was curious why his argument seemed to be dragging *on and on* when my argument seemed so much shorter. It's because my argument was below the character limit and his is almost *three times* longer than what the character limit allows. He should automatically lose the debate for cheating. There are various ways to accomplish this cheat, which I won't describe for you because I don't want to facilitate cheating. But just be aware that methods exist, and my opponent undoubtedly used one of them. He should lose the debate because (1) his conduct was egregious and he needs to be taught a lesson, and (2) there's no way I can respond to 4 rounds worth of arguments in one round, so it's an otherwise unremediable infraction.

Second, even if instead you simply limit his Round 3 to the first 8,000 characters he posted, he still loses. With only 8,000 characters, his argument would have ended right before the "Bankim Thanki" piece of evidence, so I'll respond just to those arguments.

R1) Lawyers sometimes have evidence that could exonerate someone

My opponent gives an example of how two lawyers knew that an innocent man was in prison for a crime he didn't commit because their client told them that *he* had murdered the McDonald's security guard. However, my opponent is confusing "attorney-client privilege" with "the duty of confidentiality." "Attorney-client privilege" is an evidentiary rule that nothing a client says to an attorney can be admitted in court. "Confidentiality" is an ethical duty (imposed on every lawyer by state bar rules), which requires the attorney not to disclose anything his or her client says to *anyone.* Confidentiality and privilege are not the same thing. If a lawyer breaches his duty of confidentiality and tells the government that his client said he was guilty, the lawyer can be disciplined by the state bar for breaching confidentiality, but the lawyer's admission would still not be *admissible* in court because the privilege still applies to protect the client.

The reason the two lawyers in the McDonald's murder did not reveal the information they knew until their client died was because they owed a duty of *confidentiality* to their client. Privilege had nothing do with it. Just because truth-seeking takes precedence over privilege in the world of the Affirmative does not mean that the duty of *confidentiality* seeks to exist. The same thing that happened in the McDonald's murder case would still happen in the word of the Affirmative because lawyers will still owe *ethical* duties to their clients (which have nothing to do with the rules of evidence).

R2) Line-by-line rebuttal of cards

My opponent does what is known in Policy and LD debate as a "card dump," meaning he just reads a bunch of "cards" one right after the other, without really analyzing or explaining any of them. A "card" is a citation followed by a long, full paragraph quote from the source. I'll refute each of these cards in turn.

The Melanie Leslie evidence and Thomas Gylnn evidence state the obvious: that attorney-client privilege is in conflict with the value of truth-seeking. However, neither card takes the position that truth-seeking should win out over privilege. In fact, if you read an ethics textbook for lawyers, the book will be quite frank that the privilege and confidentiality rules are deeply troubling, but will ultimately take the position that they are a necessary evil in order to have a civilized system of criminal justice.

The Thane Rosenbaum evidence is irrelevant. It is criticizing plea bargaining, and the fact that people sometimes plead down to a lesser offense that they did not actually commit (e.g. someone charged with rape pleads down to "assault"). I agree with Rosenbaum's very general point that truth-seeking is "important," but the focus of this debate is whether truth-seeking is *so* important (and is so incapable of being achieved through other means) that we must destroy the attorney-client relationship by forcing attorney's to testify against their own clients.

Now we arrive at the Bankim Thanki evidence. My opponent already ran out of characters before introducing this evidence, but I'd like to allow it because it's actually a Neg card. I'll clean up the quote a bit, but it said, "Truth, like all other good things, may be loved unwisely; may be pursued too keenly; may cost too much. And surely the meanness and the mischief of prying into a man's confidential communications with his legal adviser . . . are too great a price to pay for truth itself." Basically, the Thanki evidence is reiterating my point from last round: that the price for truth can be too high. We don't torture people to reach the truth. We don't break into their houses whenever we feel like it to see if they are up to no good. There are *other* values besides truth, including that a civilized society must have rights for the accused (even if he is guilty) and that the "optics" of a government that tortured, violated the sanctity of people's homes, and forced people's lawyers to testify against them is just *too bad*, to the point that we are afraid doing these things would make people lose confidence in the criminal justice system and feel like they are living in a police state.

Furthermore, my opponent drops the argument that abolishing the privilege will do *no good* because lawyers will be required (at the pain of facing a malpractice suit) to tell their clients *not* to tell them anything. Abolishing the privilege simply makes it really hard for lawyers to do their jobs, but has no other truth-seeking benefits. A lawyer would have a hard time arguing insanity or self-defense without the client admitting to the crime, so client's legal defenses are severely curtailed in the Affirmative world, thus denying Americans the Sixth Amendment guarantee of *effective* assistance of counsel (not the *neutered* assistance of counsel that would exist in a regime where clients could not talk openly and honestly with their lawyers).

My opponent also drops the argument that the government already has *plenty* of other ways to find out the truth. Another one of my opponent's cards (introduced after the character limit was reached) makes a similar point by explaining that the *facts* underlying an attorney-client communication are discoverable, but the conversation itself is not.

Furthermore, the attorney-client privilege actually increases truth because it allows lawyers to prevent their clients from perjuring themselves on the witness stand. There is an ethical rule saying that lawyers cannot suborn perjury. If a client says, "I did it," the lawyer then cannot later put the client on the stand and have the client say, "no, I didn't do it. I have an alibi." Instead, the lawyer would advise the client to exercise his constitutional right not to testify. Thus, the privilege -- by encouraging people to tell their lawyers things -- actually enhances truth-seeking because it prevents self-interested clients from perjuring themselves to try to win the case.

In conclusion, privilege rules are sometimes an "evil" -- in that they trade off with the value of truth-seeking -- but they are a *necessary* evil because you cannot have a fair criminal justice system without them.
Debate Round No. 3


1: I am not cheating. The website will not allow me to exceed the 8,000 character rule. Therefore I can't be cheating.

2: If we don't hold truth above all else the wrong people will get jailed and some people will get away with crime.

3: please side with me on this debate.


(1) No, my opponent still cheated. My opponent is incorrect that the website will not let you post more than 8,000 characters. I have verified with Airmax that there are at least *two methods* of doing this. In addition, the fact that my opponent *did* in fact post over 20,000 characters is proof enough that such methods exist. If it's not possible, how did my opponent do so *not only* in my debate, but in his debate against Zaradi as well. Furthermore, if he didn't cheat, why is he "giving up" as soon as he is caught? Why has he posted no additional arguments? Vote him down for cheating *and* continuing to lie about it when caught. He didn't say, "my bad, you got me; just look to the first 8K characters of my argument." He is claiming that my Microsoft Word "character count" is wrong and that the 20,534 characters from his previous round is actually only 8K characters. He's being absurd, and his doubling down on his cheating, rather than admitting it, means he knows full well what he did.

In addition, note that my opponent's *entire argument* was plagiarized word from word from this website: Perhaps that is why my opponent has not engaged in any rebuttals. He doesn't know how to respond to arguments, absent copy and pasting.

(2) My opponent loses because he has dropped every argument I have made. Extend my argument the duty of *confidentiality* is different from *privilege.* Confidentiality is what is problematic in my opponent's case. Extend my argument that the *optics* of the government forcing an attorney to testify against his own client is just more than the Constitution can bear. Extend my argument that the government has *more than enough* other tools to maximize truth-seeking, without invading the sanctity of the attorney-client relationship. Extend my arguments that my opponent's position is unconstitutional because it denies defendants *effective* assistance of counsel and indirectly forces them to self-incriminate.

Vote Con.
Debate Round No. 4
13 comments have been posted on this debate. Showing 1 through 10 records.
Posted by Zanomi3 3 years ago
Everyone come back and vote for Con when this debate ends. Tmdog has literally (like Con stated) copied from He's done this in every debate he argues, and it ruins the legitimacy of
Posted by Malacoda 3 years ago
Wow. Tmdog plagiarized all of this. No wonder he went over the word limit.
Posted by kbub 3 years ago
Cool. I really wish I knew how. I mean terrible, yeah; and cheating, definitely.... but still, I wonder how the exploit occurred....
Posted by 9spaceking 3 years ago
it's actually 20,000 characters, but yeah....
Posted by 9spaceking 3 years ago
my god..... o.0
Posted by PotBelliedGeek 3 years ago
hmm... no references to pumpkin consumption?
Posted by Tmdog3758 3 years ago
Sorry, ran out of room.
The current resolution, Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege, invites debaters to tackle a number of significant questions about the justice system as well as ethics more broadly.
Posted by Zaradi 3 years ago
It's over attorney-client priveledge. It's an old LD topic.
Posted by UchihaMadara 3 years ago
So you're not gonna tell us what you think it should take precedence over...?
Posted by wiro 3 years ago
the suspense is killing me to find what it takes precedence over
3 votes have been placed for this debate. Showing 1 through 3 records.
Vote Placed by Malacoda 3 years ago
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Total points awarded:04 
Reasons for voting decision: I cannot tolerate plagiarism. Tmdog, you should leave DDO.
Vote Placed by Zanomi3 3 years ago
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Total points awarded:07 
Reasons for voting decision: Full points to Con. Conduct for breaking the character count rules, spelling and grammar because, technically, Pro didn't spell anything himself. Arguments because Con was the only one to post any of his/her own arguments. Sources because Con used them correctly. Not completely fair, I guess, so if anyone has an issue with my vote let me know and I can change it. I only explained to give people a sense of why I voted like that; would have given all 7 points solely because of the cheating.
Vote Placed by lannan13 3 years ago
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Total points awarded:04 
Reasons for voting decision: Conduct to Con for Pro breaking character limit. Arguments to Con as most Con's arguments were dropped.