NationStates

So there is a new Lincoln Douglas topic that came out around a week ago, and it was asking if in the U.S. criminal justice system, Truth seeking ought to take precedence over Attorney Client Privilege. Personally, I think it should. I mean people, especially people charged with a crime ought to give up some of their rights for the benefit of the community. Granted, not all people charged are always guilty, but it can certainly make the community a safer place. Attorney Client Privilege are not really needed since if guilty, they are jailed anyways. So, what does everyone else think?

Are Attorney Client Privilege really necessary?
or is Truth Seeking the answer?
or even better, is there any middle floor between the two?

International Audiences welcomed to join.

No, being accused of a crime is not sufficient reason to take someone's rights away.

But it isn't taking all of their rights away, it is only whatever is necessary to obtain the truth.

Soy lor n wrote:No, being accused of a crime is not sufficient reason to take someone's rights away.

Is Attorney Client Privilege a misnomer, or are you mistaken here?

Condunum wrote:

Soy lor n wrote:No, being accused of a crime is not sufficient reason to take someone's rights away.

Is Attorney Client Privilege a misnomer, or are you mistaken here?

You mean because the name suggests it's a privilege, but I'm referring to it as a right?

Soy lor n wrote:

Condunum wrote:Is Attorney Client Privilege a misnomer, or are you mistaken here?

You mean because the name suggests it's a privilege, but I'm referring to it as a right?

Yes. If it's name is not incorrect, it's not a right.

Atra Mors wrote:But it isn't taking all of their rights away, it is only whatever is necessary to obtain the truth.

Well why not attack the 5th amendment in total - particularly the right to not testify against oneself? (oh right, we already do that)

My father taught me that an attorney is a servant of the court, and should take whatever action justice demands, including telling the judge if the client had confessed. That was the law when I started practice in PA in 1974.

Then the American Bar Association passed a new code of Ethics, which enshrined client confidentiality above all else. My father was ashamed. He said it was self serving, a way to attract criminals without putting the attorney at risk.

I am inclined to agree. We need to put the public good back into the Code of Ethics.

On the rights VS privilege thing, is it as simple as the fact that an attorney who breaks privilege isn't criminally liable, but may be civilly liable?

There is no conflict between seeking the truth and Attorney Client Privilege.

Attorney Client Privilege is necessary to protect people from harm and from illegal or unjust actions by the state and to ensure a more fair (or accurate) sentence.

There is absolutely NOTHING about Attorney Client Privilege which prevents the truth from being discovered and justice from being done.

There are certainly problems with the Justice system in the United States and there are aspects of it that lead to innocent people going to jail and the guilty going free but Attorney Client Privilege is not one of them.

Absolutely not. The truth is for the jury to decide. If you cannot trust your lawyer to tell him/her every detail of your case because of a fear that your legal representative might rat you out, how can a lawyer effectively do the job in that sort of situation?

Besides, how many more rights should we give up for the good of the community? Taft Hartley Act, Patriot Act, seat belt laws, cell phone laws, emanate domain, gun control laws, etc..

Let's go for a worst case scenario here.

And it isn't
"A lawyer knows his client did it, but still argues for his innocence." because that shits par for the course. The lawyer is there specifically to give every person the best arguments they have. Think of the lawyer as a computer script, specifically told by their client what the desired outcome is.
The lawyer tells them if thats reasonable, but if pressed, they go for it anyway. A lawyer is, in essence, pretending to argue for themselves when they argue for their client.

Everything the lawyer is saying is something the client could be saying, if they knew what the law is. So it isn't a problem.


What the REAL worst case scenario is, is if their client confesses to them
"Oh, that guy on death row on the news? Totally didn't do it. It was me. Lol."

Now, in that situation, I have no idea what we should advocate.


Now, in that situation, the lawyer isn't just speaking instead of the client.
The client couldn't (Or wouldn't) come forward and say "Btw, it was me."

In the former situation, the lawyer is saying things that the client would LIKE to say, but doesn't know how to.
In the latter, it's entirely different. The lawyer is saying nothing, which the client is also capable of doing.

I still don't think a client can say to their attorney "Yes I killed him, I hated his guts, I planned it out, ambushed him and killed him" to his attorney and not have the attorney be obligated as an officer of the court to ask for recusel.

Condunum wrote:

Soy lor n wrote:You mean because the name suggests it's a privilege, but I'm referring to it as a right?

Yes. If it's name is not incorrect, it's not a right.

I think it may be a specific legal definition referring to privileged communications (so it's the communication that's privileged, not the accused person)
So basically, an accused person has the right to privileged communication with his attorney.

I don't think it's a misnomer, I just don't think it means what it sounds like it means. But I'm in no way a lawyer.

Shouldn't the truth be worth more than attorney client confidentiality though? since technically what if the conversation held crucial evidence, like how the discussion earlier was saying. util calculus can be applied, "the end justifies the means" If the case is resolved, and the defendent found not guilty, he can go back to his normal life, however, if he is found guilty he can be arrested. looking from a extremem perspective, lets say it is a terrorist case, i don't think the Miranda rights of the terrorist does not outweigh the importance of the safety of a country.

Atra Mors wrote:Shouldn't the truth be worth more than attorney client confidentiality though? since technically what if the conversation held crucial evidence, like how the discussion earlier was saying. util calculus can be applied, "the end justifies the means" If the case is resolved, and the defendent found not guilty, he can go back to his normal life, however, if he is found guilty he can be arrested. looking from a extremem perspective, lets say it is a terrorist case, i don't think the Miranda rights of the terrorist does not outweigh the importance of the safety of a country.

The issue becomes, if privilege is no longer privileged, we will see a chilling effect whereby many people, some of whom may even be innocent, will begin to refuse to talk to their lawyers.

Again going for a worst case scenario, if privilege were removed, we may see someone leaving out a crucial piece of evidence

"I was high on heroin at the time with my drug dealer." (Since this is a crime) when talking to their lawyer, which could absolutely cripple their case when the person is on trial for say, murder.

The answer is doubly no as long as we still have the death penalty.
And attorney client privilege is not always about hiding a confession. It's often about keeping discussions about motives/alibis/etc... private. Privileged information can often be misleading. It's definitely not worth violating that privacy if a (potentially innocent) person's life is on the line.

Ostroeuropa wrote:Let's go for a worst case scenario here.

And it isn't
"A lawyer knows his client did it, but still argues for his innocence." because that shits par for the course. The lawyer is there specifically to give every person the best arguments they have. Think of the lawyer as a computer script, specifically told by their client what the desired outcome is.
The lawyer tells them if thats reasonable, but if pressed, they go for it anyway. A lawyer is, in essence, pretending to argue for themselves when they argue for their client.

Everything the lawyer is saying is something the client could be saying, if they knew what the law is. So it isn't a problem.


What the REAL worst case scenario is, is if their client confesses to them
"Oh, that guy on death row on the news? Totally didn't do it. It was me. Lol."

Now, in that situation, I have no idea what we should advocate.


Now, in that situation, the lawyer isn't just speaking instead of the client.
The client couldn't (Or wouldn't) come forward and say "Btw, it was me."

In the former situation, the lawyer is saying things that the client would LIKE to say, but doesn't know how to.
In the latter, it's entirely different. The lawyer is saying nothing, which the client is also capable of doing.

I agree although a confession should not be enough to determine guilt. Any confession needs to be compared with evidence for several reasons.

A popular one is, every time a famous murder is up on the news several people confess (I know it seems weird but it's true).

The classic example is the Lindbergh kidnapping case where more than 200 people confessed to the crime.

A less popular one is the following situation:
a) Person A commits crime.
b) Person B is coerced, tricked, or paid to confess to crime by person A.

The most popular reason people confess to crimes they did not commit is when police interrogation techniques break them down to the point they simply confess because they can't take the interrogation anymore ( http://abcnews.go.com/2020/story?id=123938&page=1 )

Any proper justice system would never take a confession at face value or as the basis upon which to convict.

Natapoc wrote:

Ostroeuropa wrote:Let's go for a worst case scenario here.

And it isn't
"A lawyer knows his client did it, but still argues for his innocence." because that shits par for the course. The lawyer is there specifically to give every person the best arguments they have. Think of the lawyer as a computer script, specifically told by their client what the desired outcome is.
The lawyer tells them if thats reasonable, but if pressed, they go for it anyway. A lawyer is, in essence, pretending to argue for themselves when they argue for their client.

Everything the lawyer is saying is something the client could be saying, if they knew what the law is. So it isn't a problem.


What the REAL worst case scenario is, is if their client confesses to them
"Oh, that guy on death row on the news? Totally didn't do it. It was me. Lol."

Now, in that situation, I have no idea what we should advocate.


Now, in that situation, the lawyer isn't just speaking instead of the client.
The client couldn't (Or wouldn't) come forward and say "Btw, it was me."

In the former situation, the lawyer is saying things that the client would LIKE to say, but doesn't know how to.
In the latter, it's entirely different. The lawyer is saying nothing, which the client is also capable of doing.

I agree although a confession should not be enough to determine guilt. Any confession needs to be compared with evidence for several reasons.

A popular one is, every time a famous murder is up on the news several people confess (I know it seems weird but it's true).

The classic example is the Lindbergh kidnapping case where more than 200 people confessed to the crime.

A less popular one is the following situation:
a) Person A commits crime.
b) Person B is coerced, tricked, or paid to confess to crime by person A.

The most popular reason people confess to crimes they did not commit is when police interrogation techniques break them down to the point they simply confess because they can't take the interrogation anymore ( http://abcnews.go.com/2020/story?id=123938&page=1 )

Any proper justice system would never take a confession at face value or as the basis upon which to convict.

True enough.
I suppose a better example would be a panicked phonecall to the lawyer exclaiming that they just murdered someone, the lawyer telling them "omgwtf turn yourself in", then the next day some random guy gets arrested for that murder and ends up on the news for it.
That way, the confession to the lawyer would carry significantly more weight and believability.
In that situation, should the lawyer violate privilege?
I'm inclined to say no. The circumstance is bizarre and so out there that I find it preferable to simply make privilege unassailable to strengthen the other times when it's actually useful (Except in the case of harm ABOUT to happen to others.)
Harm thats already occured? No deal.

Atra Mors wrote:Shouldn't the truth be worth more than attorney client confidentiality though? since technically what if the conversation held crucial evidence, like how the discussion earlier was saying. util calculus can be applied, "the end justifies the means" If the case is resolved, and the defendent found not guilty, he can go back to his normal life, however, if he is found guilty he can be arrested. looking from a extremem perspective, lets say it is a terrorist case, i don't think the Miranda rights of the terrorist does not outweigh the importance of the safety of a country.

I don't believe information regarding future crimes is subject to privilege.

The truth is not nearly as black and white as you seem to think. People confess to crimes they didn't commit. Alibis can be misleading. How can an attorney represent an innocent client properly if the client is afraid to be honest with his attorney?

Attorney client privilege is critical. The american system is created to deliver verdicts. The contest is between two evaluations of the facts, and the judge or jury makes the determination. Once you erode att clt privilege then the accused or any party doesnt have a champion who is just there to protect them.

Atra Mors wrote:So there is a new Lincoln Douglas topic that came out around a week ago, and it was asking if in the U.S. criminal justice system, Truth seeking ought to take precedence over Attorney Client Privilege. Personally, I think it should. I mean people, especially people charged with a crime ought to give up some of their rights for the benefit of the community. Granted, not all people charged are always guilty, but it can certainly make the community a safer place. Attorney Client Privilege are not really needed since if guilty, they are jailed anyways. So, what does everyone else think?

Are Attorney Client Privilege really necessary?
or is Truth Seeking the answer?
or even better, is there any middle floor between the two?

International Audiences welcomed to join.

Fifth amendment. That pretty much sums up and justifies every type of privelege out there on a philosophical level. The idea is even if you are guilty you still have the right to not bear witness against yourself and as an extension of that, religious, legal and medical counsel are likewise protected from disclosure against your will. Other wise clients would likely withold or lie about key evenets or evidence to there own attornies and that would just create more problems than it solves. And no people charged with crimes shouldn't give up any rights beyond perhaps being held in confinement until the conclusion of a trial. It's innocent until proven guilty not the other way around. Additionally people are wrongfully accused all the time, why should innocent people suffer a deprivation of their rights (beyond again what is deemed a minimum to preserve there appearance in court or protect the public)? If youre convicted hell yeah you lose rights but not until then.
Also I'm guessing you prioritize public safety over indidgual rights too much, that's a more and more common problem in America these days especially post 9/11

Attorney client privilege is critical. The american system is created to deliver verdicts. The contest is between two evaluations of the facts, and the judge or jury makes the determination. Once you erode att clt privilege then the accused or any party doesnt have a champion who is just there to protect them.

Condunum wrote:

Soy lor n wrote:You mean because the name suggests it's a privilege, but I'm referring to it as a right?

Yes. If it's name is not incorrect, it's not a right.

I think it's because the term privelege is actually an adjective describing the communication. It's the communication between attorney and client which is "privileged" other wise we'd end up saying something like the "communication is righted" or something, I think the naming convention is just to preserve paralellism between the two. But yeah, attorney client right would likely be more acceptable english, not that I'm a grammar or syntax expert.

The United States uses an adversarial justice system. We have decided that the best way to find the truth — and to preserve freedoms, liberties, and rights — is to have two equally dedicated opponents competing against each other, and that — to any extent these goals may conflict — we should err on the side of preservation of freedoms, liberties, and rights. It is the prosecutor's role to attempt to prove that a defendant committed a crime; it is the defendant's role — generally performed via legal counsel — to introduce doubt. It would be contradictory to the idea of competition for the defendant to assist the prosecutor; it would, therefore, be contradictory to our adversarial system; it would, still further, be contradictory to our ideal balance of truth-finding and the protection of freedoms, liberties, and rights.

The concern that an attorney could be given information that, though exculpatory to a convicted criminal, is inculpatory to their own client is quite valid. Certainly, it would be a great miscarriage of justice for an officer of the court to fail to disclose exculpatory evidence; on the other hand, an attorney has a great duty of care to their client, and to violate this duty by introducing inculpatory evidence against their client is its own miscarriage of justice. However, the problem is quite easily avoidable. The court can simply grant use immunity to allow the client to confess without personal risk, while still allowing the information to be use to contradict the claim that the person convicted committed the crime.