November/December 2013Table of Contents
Foundation Briefs
Advanced Level November/December Lincoln-Douglas Brief
Resolved: In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.
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November/December 2013Table of Contents
Table of Contents
Table of Contents 1
Defend Your Source 11
Authors 11
Organizations 21
Definitions 22
Definition of the Criminal Justice System. BPG. 22
Definition of Prosecutorial Misconduct. ABB 22
The Work-Product Doctrine is not part of Attorney-Client Privilege DC 23
Attorney-Client Privilege does not protect facts, only attorney-client communications 23
The attorney-client privilege requires only the content of the communication stay confidential, not necessarily the facts. CFS 24
Explanation Of When and How The Attorney-Client Privilege Comes to Exist. BPG 24
Definition of Attorney-Client Privilege DC 25
Definition of Attorney-Client Privilege. BPG 25
Definition of Attorney-Client Privilege. PNG 26
Attorney-Client Privilege rests on the assumption that it is not used to break the law DC 26
Attorney-Client Privilege does not permit lying DC 27
Exceptions to The Attorney-Client Privilege. BPG. 27
Truth-seeking spans a range of activities. TF. 28
Attorney-client privilege includes relationship and communication. TF. 28
Attorney-client privilege isn’t clearly defined in the status quo. TF. 29
Attorney-client privilege is based on utilitarian calculations – not absolute. TF. 30
Technology complicates the attorney-client privilege. Most communications via technology will not be protected. CFS 30
United States v. Kovel. TF. 31
The attorney-client privilege is important and functions as a property right. CFS 31
Topic Analysis 32
Pro Evidence 34
Truth-Finding is at center of court system 35
Truth-finding increases confidence in court system 35
Defendant still maintains individual rights with a truth-seeking focus. PNG 35
The truth is crucial to ending cyclical crime. PNG 36
Not valuing truth leads to false convictions. BPG 36
Truth is Extremely Important. BPG 36
Truth-seeking inherently restores justice. TF. 37
Truth-seeking upholds values of democracy. TF. 37
Truth comes a priori. TF. 38
Attorney-Client Privilege is Unnecessary 39
Prosecutors can Prevent wrongful Convictions and Unfair Trials ABB 39
Many lower management employees are unaware of the privilege and do not use it. CFS 40
Corporations are more concerned with strategic business decisions than following the rules. Attorneys have little leverage on corporate conduct rendering the privilege irrelevant. CFS 40
Attorney-Client Privilege is not the only reason for full disclosure from client. PNG 41
Limited attorney-client privilege would not reduce client honesty. PNG 41
The attorney-client privilege only serves to benefit the attorneys and falsely increases the value of the profession. CFS 42
The privilege only adds additional costs for clients and interferes with communicating the truth. CFS 42
The attorney-client privilege in the adversarial system gives an unfair advantage to the defendant. AC. 43
Recent trends in the criminal justice system demonstrate the increasing importance put on truth-seeking at the expense of the attorney-client privilege. AC. 44
Justice must take precedence over attorney-client privilege. PNG 45
Alternatives to Attorney-Client Privilege 46
The work-product doctrine acts as a viable alternative to attorney-client privilege. TF. 46
Client confidentiality is an ethical check on attorney-client privilege. TF. 46
Ridding attorney-client privilege opens path for computer-based evidence discovery. TF. 47
Knowledge of intrusion provides a check to attorney-client violations. TF. 48
Without the privilege, clients would have more control and can give information at their own risk. CFS 48
Attorney Client Privilege May Harm the Innocent 49
Example of Attorney Client Privilege Covering Up a Wrongful Conviction ABB 49
Attorney-Client Privilege not favored by the Supreme Court. PNG 49
Attorney-Client Privilege May Cause False Convictions ABB 50
The Attorney-Client Privilege Must Be Overridden In Malpractice Lawsuit. BPG 51
Example where Attorney-Client Privilege Could Conceal Child Abuse. ABB 52
Conflicts Exist Between Attorney-Client Privilege and Abuse Reporting Requirements. ABB 53
Attorney-client privilege makes it more difficult for innocents to convince jury they have nothing to hide DC 54
Bentham’s argument against attorney-client privilege does not go far enough DC 54
Wrong convictions are too common. PNG 55
Focus on Protecting Attorney-Client Privilege Prevents Abuse Reporting in Most States. ABB 55
Attorney-Client privilege hurts protection of the innocent accused by complicating legal process. TF. 56
Focusing Solely on Attorney-Client Privilege Insufficient 57
Man Wrongfully Convicted of Murder Due to Prosecutor Withholding Info. ABB 57
Potential for Wrongful Convictions due to Prosecutorial Misconduct. ABB 58
Stricter Checks on Attorneys Necessary to Prevent Wrongful Convictions. ABB 59
Example of Negligent Attorney Causing Wrongful Conviction. ABB 59
Attorney-Client Privilege May Exonerate the Guilty 60
Example Of Attorney-Client Privelege Protecting a Confessed Murderer ABB 60
The attorney-client only helps guilty clients. This makes trials more difficult and immoral. CFS 60
Protection of Innocents Vital to Criminal Justice 61
Truth-Seeking Protects Innocents. PNG 61
Truth-defeating devices lead to the conviction of innocents. PNG 61
Criminal Justice should respect individual human rights. PNG 62
Truth Seeking would Clarify Duty of Prosecutors to Stop Wrongful Convictions ABB 62
Inquisitorial Systems Serve as Truth-Seeking Models 63
French Truth-Seeking system more likely to protect innocent. PNG 63
National courts around the world have set the precedent for “the right to truth”. PNG 63
U.S. Government has challenged attorney-client privilege. TF. 64
Attorney-Client Privilege Allows Abuse By Large Corporations 65
The Attorney-Client Privilege Applies to Corporations. BPG 65
The Government is eroding attorney-client privilege in cases involving large corporations. BPG 66
Lawyers will give worse legal advice to corporations if the government continues to erode attorney-client privilege. BPG 67
Changing From Our Current System to Truth-Seeking Will Solve The Problem With Attorney-Corporate relationships. BPG 67
Explanation of How Enron Collapsed. BPG 69
Ways In Which Enron Abused The Attorney-Client Privilege. Lawyers feel no obligation to tell the truth and reveal to others corruption within the corporation they work for. BPG 70
More Ways In Which Enron Abused The Attorney-Client Privilege. Lawyers feel they have no obligation to tell the truth (especially in-house counsel). BPG 72
Enron’s In-House Counsel felt justified in shredding documents and concealing information even though it disrupted seeking truth. BPG 73
Legal Institutions Have Solidified The Power of Corporations in Society And Allowed for the Rise of Capitalism in America. BPG 74
Lawyers Assist Corporations in Having Control Over Truth, Technology, and Information. BPG 75
Capitalism is Responsible For Our Current Ecological Crisis. BPG 77
The calculative nature of capitalism reduces entire populations to human recourses and negates the value of human life. BPG 78
Democracy mediated by capital is nothing more than the underside of totalitarianism, it justifies violence and exclusion in the name of people who form its basis. BPG 79
We Must Resist Any Manifestation of Capitalism. BPG 80
Good and evil are relative to what is being described good or evil. Thus, values and criterion on this topic must relate specifically to what makes up a good Criminal Justice System, not what is good in an abstract sense. BPG 83
The Criminal Justice System must be defined by what it is meant to do; any framework without a description of the function of the criminal justice system fails to prescribe a meaningful ought. BPG 84
Attorney-client exclusivity is on the decline – corporations prove. TF. 85
Conceptual challenge to the privilege in the modern context of corporate attorneys based on third-party involvement in corporations. AC. 86
Attorney-Client Privilege Hinders Truth-Seeking 87
Attorney-client privilege hinders truth seeking. TF. 87
The attorney-client privilege, if protected for the purpose of establishing trust between the attorney and the client, promotes injurious legal practices and perspectives. AC. 87
Attorney-client privilege hinders truth-seeking. TF. 88
The Attorney-Client Privilege hurts executive-congressional negotiation. TF. 89
Attorney-client privilege discourages truthful legal proceedings. TF. 90
Con Evidence 91
Attorney-Client Privilege Necessary in US Courts 92
The Incentive of Prosecutors to Act in a Biased Manner. ABB 92
Prosecutorial Misconduct Currently Causes Wrongful Convictions ABB 93
Attorney-Client Privilege lets attorneys fully fulfill their role DC 93
Attorney-Client Privilege necessary for client honesty. PNG 94
Attorney-Client Privilege Serves both the Accused and Society as a Whole ABB 94
The Attorney –Client Privilege Allows Lawyers to Better Fulfill Their Responsibilities to Their Client. BPG 94
Attorneys Can Help to Compensate for Prosecutorial Immunity ABB 95
Attorney-client privilege is a fundamental aspect of the justice system. TF. 96
Attorney-client privilege protects legal communication. TF. 96
The privilege is essential to the existence of the legal profession. AC. 97
Attorney-Client privilege and the communication it promotes is important for adversarial system. AC. 97
The attorney-client privilege is an important part of checks and balances within the legal system. AC. 98
The necessity of the attorney-client privilege is demonstrated by the enormous power—and its potential for abuse—yielded by the prosecutor and the grand jury. AC. 98
The attorney-client privilege ensures faith in the attorney as well as faith in the legal system as a whole. AC. 99
The nature of the cases in the criminal justice system necessitates the privilege. AC. 100
The attorney-client privilege supports the rule of law. CFS 101
The crime-fraud exception in the attorney-client privilege is good for maintaining the rule of law. CFS 102
Ensuring the legal use of the privilege is very important. CFS 102
Insurance lawyers should take advantage of the attorney-client privilege. CFS 103
Insurance lawyers can help maintain the privilege. CFS 103
Upjohn CO. v. United States. CFS 104
Attorney-client privilege is necessary for truthful communication experts. PNG 104
Lawyers have an ethical duty to maintain attorney-client privilege. PNG 105
Lawyers in the adversary system are more faithful to their client. PNG 105
Some Values in Legal System Override Truth 106
Examples of parts of our legal system we keep even though they can impede truth-seeking 106
Truth-seeking doesn’t guarantee legal justice. TF. 106
Historical Example of Prioritizing Protecting the Innocent over Punishing the Guilty. ABB 107
Refutation of Attempt to Equate Significance of Punishing Innocents and Releasing Criminals. ABB 107
Justification for Focusing System on Preventing Wrongful Convictions, Even if More Criminals Go Free. ABB 108
Innocent Until Proven Guilty Overrides Pure Justice Seeking. ABB 109
Refutation of Consequentialist Argument for Accepting Punishment of Innocents. ABB 109
Current Tendency to Err on Side of Convicting Guilty in US Courts. ABB 110
Statistical Analysis of Wrongful Convictions in US. ABB 111
Bias Toward Conviction Built into US Death Penalty System. ABB 111
Right to Equality Under the Law often Denied to Those Accused of Capital Crimes. ABB 112
Presumption of Innocence Preempts Truth Seeking. ABB 113
Client Privilege comes a priori. TF. 113
Attorney-Client Privilege Gets Truth Best 114
By letting defendants use honest, nuanced defenses instead of untruthful, outright denials, Attorney-client privilege decreases perjury DC 114
The US Adversarial Criminal Justice System Minimizes Error ABB 115
Full disclosure encourages accurate legal advice and representation. AC. 116
The attorney-client privilege produces reliable results . AC. 117
The privilege is the basis of law and has legal importance. CFS 117
The attorney-client privilege encourages clients to make more moral decisions. CFS 118
Lawyers have a large influence on the moral decisions of their clients. CFS 118
Lawyers will better guide their client’s decisions if the privilege protects more. CFS 119
The truth can still come out despite attorney-client privilege. PNG 119
Attorney-Client Privilege is vital for effective representation. PNG 120
Attorney-Client Privilege Protects the Accused 121
Attorney-Client Privilege Lets Lawyers Effectively Advise their Clients ABB 121
Revoking Attorney-Client Privilege Removes Protection from Self-Incrimination ABB 121
Attorney-client privilege is not to blame for wrongful convictions. PNG 122
Abolition of Confidentiality Requirement 123
The confidentiality requirement should be abandoned because it is does not suppress relevant information and is unnecessary. CFS 123
Abolition of the confidentiality requirement would be beneficial for the attorney-client privilege and not hinder communication between the parties. CFS 123
The abolition of the confidentiality requirement is not correlated to more fraudulent use of the privilege. CFS 124
Inquisitorial System Not Better 125
Adoption of an Inquisitorial System will not lead to more truth. PNG 125
The inquisitorial system's benefits are overplayed. PNG 125
Judges make rushed judgments in the inquisitorial system. PNG 126
The inquisitorial system claims lower costs, but this only happens at expense of justice. PNG 126
The inquisitorial system does not make better use of experts than the adversarial system. PNG 127
Attorney-Client Privilege Not Ultimately Confidential 128
Attorney-Client Privilege is not as extremely limiting as it is commonly perceived to be. PNG 128
Promises generate special moral obligations that operate on a prior level to all other rights and duties. BPG 129
There Is A Violation Of the Sixth Amendment if an Attorney Cannot Provide Adequate Representation. BPG 129
The attorney-client privilege does not mean the lawyer cannot stand witness: example of representing clients with competency issues. AC. 130
Privacy rationale justifies attorney-client privilege. TF. 131
No legal body considers attorney-client privilege absolute. PNG 131
Attorney-client privilege is often too narrowly construed; it is in fact often loosely applied. PNG 132
Protecting Attorney-Client Privilege Preserves Government Legitimacy 133
Disregarding attorney-client privilege is a form of government coercion. TF. 133
Terrorism exception to attorney-client privilege undermines justice and may spread. TF. 133
Procedural justice trumps decision-making in courts – attorney-client privilege upholds. TF. 134
Procedural justice builds public trust and court legitimacy – attorney-client privilege upholds. TF. 134
Supreme Court recognized the despotism of the law in the absence of the attorney-client privilege. AC. 135
Attorney-Client Privilege Protects Communication 136
Communication is core to preserving relevant legal information – attorney-client privilege preserves communication. TF. 136
The way business and the legal profession operates today provides more justifications for the type of communication promoted by the attorney-client privilege. AC. 136