Free Card Friday: Attorney-Client Privilege!

We’re hard at work on our topic analysis of the new Lincoln-Douglas topic, Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege. Today, we’ve got a sneak-peek card to help jump-start your research while you’re waiting!

Attorney-client privilege is critical to the ethical and complete functioning of the lawyer as an advocate — without it, effective representation is impossible.

Cole, 2003 [“Revoking our Privileges: Federal Law Enforcement’s Multi-Front Assault on the Attorney-Client Privilege,” Lance, Assistant Professor of Law, The Dickinson School of Law of The Pennsylvania State University, 48 Vill. L. Rev. 469]

The discussion above of federal law enforcement policies and practices over the past two decades demonstrates that the protections provided by the attorney-client privilege and the work product doctrine have been significantly diminished in recent years. Commentators have recognized this trend toward diminished privilege protections, n515 and have analyzed its impact on particular areas of law. n516 This Article has examined the areas in which the privilege has been under attack at the federal level, with the objective of highlighting the cumulative effect of these attacks. While it is not possible to quantify, or even to measure with precision, this cumulative effect, the extent of the erosion of privilege protections and the level of concern about that erosion suggest that the system may be nearing a  [*587]  turning point – a point at which the continued viability of the privilege is at risk.  Most commentators, and certainly most practicing lawyers, agree that the attorney-client privilege is an integral element of our legal system. n517 In 1978 Professor Geoffrey C. Hazard, Jr. offered a compelling articulation of the modern rationale for the attorney-client privilege:     The attorney-client privilege may well be the pivotal element of the modern American lawyer’s professional functions. It is considered indispensable to the lawyer’s function as an advocate on the theory that the advocate can adequately prepare a case only if the client is free to disclose everything, bad as well as good. The privilege is also considered necessary to the lawyer’s function as confidential counselor in law on the similar theory that the legal counselor can properly advise the client what to do only if the client is free to make full disclosure. n518     A review of the Supreme Court’s attorney-client privilege cases over the past two decades demonstrates that Professor Hazard’s assessment of the importance of the privilege remains valid today. n519 A review of federal law enforcement actions over the past two decades, however, demonstrates that the privilege is increasingly under attack and at risk. n520 If one agrees that the attorney-client privilege and, perhaps to a lesser extent, the attorney work product doctrine are central to our adversarial system of justice  [*588]  and therefore worth preserving, then the recent developments that are discussed in this Article beg the question of what should be done to stop unnecessary attacks on the privilege and prevent further erosion of the protections that the privilege provides. Some suggested changes in the policies and practices of federal law enforcement officials are described below.

What do you think of the new LD Topic? Let us know in the comments or submit your case for a free critique!

About Lauren Sabino

Lauren Sabino is the Director of Youth Programs at the National Center for Policy Analysis. She currently administrates Debate Central, the largest free online debate resource.
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14 Responses to Free Card Friday: Attorney-Client Privilege!

  1. damani says:

    I feel that LD topics should be based off on controversial topics that kids can relate to or that kids know about. for Example, government shutdown, war, Syria, etc.

    • Janani says:

      I completely agree…. this topic has very little to do with me at the moment.. I wish the topics they chose would have more to do with the teenager age group.

    • Emily says:

      As I agree with your point, the idea of Lincoln-Douglas is to not be an easy topic to interpret. This topic requires further research, which turns out to be a more interesting debate with different ideas.

    • Aleksandar says:

      LD debate is philosophical debate, not PF therefore having topics about government shutdown and syria would not be a legit topic.

  2. Jack says:

    I affirm the resolved: “In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege”. To debate on equal grounds I offer the following definitions.
    Truth-seeking:to go in search for the body of true statements and propositions
    Attorney-client privilege:the right of a lawyer to refuse to divulge confidential information from his client
    Criminal Justice System:the process by which people who are accused of crimes are judged in court.
    Precedence:a more important position or status
    Perjury: incomplete testimony under oath.

    The value of the round is justice. This is the right value of the round because the purpose of the criminal justice system is to determine justice by finding the truth. The standard for the round shall be legitimate criminal justice system. My thesis and sole contention is that a legitimate criminal justice system would make truth and justice its sole purpose.
    Burden – The negative has the burden to prove the attorney client privilege provides a good to the criminal justice system and the United States. It is not enough to prove it is helpful to a defendant. A defendant may be guilty, and the purpose of the criminal justice system is to determine guilt. Hiding guilt from society is counter the function and purpose of the criminal justice system. Acting contrary to the purpose, violates justice.

    Contention 1: The truth is always more important. So we need truth seeking.
    Sub. A: Truth and fairness should be pursued in line with each other to achieve justice.
    Gary Goodpaster( Acting Dean and Professor of Law, University of California, Davis), “On the Theory of American Adversary Criminal Trial,” THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY, 1987

    The United States Supreme Court said that “the system assumes that adversarial trial testing will advance the public interest is in truth and fairness”. Truth and fairness are not separate interests to be pursued, but that they are closely connected. If the truth is discovered in trial and illegal methods were not used to obtain the truth, the trial could not have been unfair. Thus, there are two reasons to join truth and fairness as twin purposes of adversary criminal trials. First, an unfair decisional procedure may lead to incorrect fact-finding. Second, there is a need to account for the truth dysfunctionality of trials. If criminal trials are not good truth-finding mechanisms, then we must offer some other value that trials are structured to protect. This means that ensuring a system that is both fair and prioritizes truth-seeking is more likely to achieve justice because it means we are more likely to achieve an accurate verdict than attorney-client privilege which obscures many facts and thus giving a first reason to affirm.

    Sub. B: Search for truth ought to be the central to our justice system.
    Samuel D. Thurman(distinguished professor of law, University of Utah College of Law), “Limits to the Adversary System: Interests that Outweigh Confidentiality,” The Journal of the Legal Profession, 1980

    Although many additional public responsibilities of the lawyer necessitate in-roads on the strict adversary theory, efforts to arrive at truth and at least to approximate truth when controversies develop should be central to a system of justice in our society. For too long, deception has been rationalized as necessary adjunct to the adversary system. No assurances that lawyers do maintain confidences can compensate for loss of reputation as truth tellers. The duty to tell the truth and to assist otherwise in its ascertainment that should be a bedrock principle in the adversary system. This means there is a logical support for truth-seeking taking precedence because subversion of truth-seeking means the public will begin to lose confidence in the legal system, something we have seen recently with the Justice for Trayvon movement and polls showing declining support for the Supreme Court. To avoid public support collapse for the criminal justice system is a second reason to affirm.

    Contention 2: Innocent people will be convicted without truth-seeking
    Sub. A: To insure justice technicalities that prevent truth finding must be abolished.
    James A. Gardner (Harvard, 1948; LL.M., Columbia, 1958; member of the Bar of California and the Bar of Illinois; Assistant Professor, Chicago-Kent College of Law, 1956-57; Harlan F. Stone Fellow, Columbia University Law School, 1957-58), “A Re-Evaluation of the Attorney-Client Privilege,” Villanova Law Review, Spring 1963

    Discovery procedures were improved and extended so as to cover all relevant and unprivileged materials in the possession of the parties, and under special circumstances in the possession of third parties. To insure justice to all it is necessary that technicalities which prevent the production of all truth findings should be abolished. This means that as attorney-client is a technicality that prevents the truth from being discovered which a legitimate criminal justice would not do. So you can affirm because attorney client-privilege subverts justice. Truth seeking would assure that justice is achieved.
    Sub. B: No truth is being found in attorney-client privilege.
    Frankel, Marvin E. “Review.” University of Pennsylvania Law Review Vol. 123, No. 5. May 1975. Print

    “We should question the premise that adversariness is ultimately and invariably good. Because under attorney-client privilege lawyers must (a) try to destroy a witness “who you know to be telling the truth,” (b) “put a witness on the stand when you know he will commit perjury,” and (c) “give your client legal advice when you have reason to believe that the knowledge you give him will tempt him to commit perjury.” The “policies” found to justify these views, included, as the first and most fundamental, the maintenance of “an adversary system based upon the assumption that the most effective means of determining truth is to present to a judge and jury a clash between proponents of conflicting views.” This means that attorney client privilege will not find the truth because lawyers will lie and break the rules just to win the case. So no real truth is being found. Which defines a legitimate criminal justice system. Thus, giving another reason you can affirm.

    Contention 3: The attorney-client privilege distorts the truth.
    Sub. A: The attorney-client privilege is an outdated concept.
    James A. Garnder (Harvard, 1948; LL.M., Columbia, 1958; member of the Bar of California and the Bar of Illinois; Assistant Professor, Chicago-Kent College of
    Law, 1956-57; Harlan F. Stone Fellow, Columbia University Law School, 1957-58), “A Re-Evaluation of the Attorney-Client Privilege,” Villanova Law Review, Spring 1963

    In one area of the law of evidence, namely, the area of the personal privileges, much criticism has been made of the rules as being conducive to injustice by reason of their prevention of full disclosure of all relevant facts, thereby tending to cause inaccuracies in the trial of lawsuits. Among the factors which have affected recent developments in procedure have been the following: new emphasis upon and an enlarged conception of the nature and scope of human rights; new complexities in the detection of criminal activities and in prosecution of persons charged with crime; the rise of the modern business corporation and complex business methods and activities . These developments have made it necessary to apply rules and principles of law formulated for use in our earlier society to the situations arising in our present day world. This in turn has made it necessary to revise the old rules to meet the needs of the new age and to create new rules when the old ones could not be adapted to the changed conditions. The result has been a somewhat ad hoc extension of the rules of privilege, often without adequate attention to and understanding of the philosophy of privilege. Giving another one of many reasons to affirm today.

    Sub. B: Almost 90 percent of cases have plea bargaining involved in them. The public is being lied too with the attorney-client privilege.
    Abraham L. Goldstein. “Reflections on Two Models: Inquisitorial themes in American Criminal Procedure.” Stanford Law Review, Vol. 26. 1974. Web. 7 Oct 2013.

    More than 90 percent of criminal case are never tried; they are concluded by plea-bargaining. Plea bargaining leads to an illegitimate criminal justice system by letting people who have committed a crime get off easy. While the public is being assured that the criminals are paying for their actions, they are really getting deals to get out early and not be fully punished. Thus why we have so many reoffenders. In alaska plea-bargaining was expelled out of the system, and they have a 7 percent drop in reoffenders. This means that while attorney-client privilege system is lying to the people; but with a truth seeking system no deals would be tolerated making for a legitimate criminal justice system thus giving another out of many reason to affirm today. I am now ready for the cross examination.

    what do you think of my case?

  3. Celeste says:

    I hate this resolution! It is very difficult in my opinion to argue the Negation and almost every term in the resolution is ambiguous leaving room for terrible cases to arise…I am not pleased with the NFL’s choice this month…

    • Maria says:

      It is the least liked topic of the year, even for the LD topic makers. That’s why they chose it for Nov/Dec. I’m betting that the Jan/Feb topic will be really good.

  4. Malcolm says:

    I agree, voting and criminal justice are nice but the majority of young people are inexperienced in those areas. It would be much more interesting and real if debaters got topics they had at least a little bit of knowledge on, before hand.

  5. Josey says:

    I feel that this topic isn’t the best topic, because you cannot really argue the affirmative side. I am in debate at my former school now, and when we go to the tournaments I feel that there is no way that I could possible win this by just saying that we ought to do that, because anyone and everyone basically are so use to the norm that they don’t even think for themselves anymore, so they automatically think the 5th amendment should be the same and leave no room for change, and with the way American is right now, let’s all face it, we need a lot of change.

  6. carly says:

    As my first LD topic, I’m pretty excited about It. There’s so many different directions this topic could take, it’s hard to prepare for everything! I do think the negative side may have the upper hand though.. considering it’s the way that has, more or less, been working for over the past 400 years. Any well-prepared negative case should win in debating this topic.

    • Maria says:

      In fact, the resolution is skewed toward the affirmative unless you can prove that ACPs can work with truth-seeking.

  7. lily says:

    i dont like this resolution at all i would much rather prefer a more relatable topic im having quite a bot of trouble arguing for the aff

  8. Andrew says:

    Relatability should not be an issue in determining the applicability of a resolution. That assertion is PF’s domain and one that LD should stay far away from. Experience or prior knowledge of the criminal justice system is not a prerequisite to being able to successfully debate this topic; if it is then you are doing it incorrectly…

  9. Morgan says:

    I agree that this is difficult topic but I enjoy the challenge and it brings a little more challenge. Also it takes greater sill to argue something that is not as familiar to you it makes you a greater debater and it can potentially help prepare you for the research needed in college. I totally think that it would be more fun though if they were more teenage oriented topics:)

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