Resolved: On balance, the benefits of genetically modified foods outweigh the harms.The November/December LD topic:
Resolved: The "right to be forgotten" from Internet searches ought to be a civil right.Both should be fun to debate. Let's get to work!
... a criminal defendant's rights to the effective assistance of counsel and a fair trial. Courts have also recognized that government invasions of the attorney-client privilege can deprive an individual of due process under the Fifth and Fourteenth Amendments. In short, if any evidentiary privilege is to be afforded the protection of the Fourth Amendment, none presents a more compelling case than the attorney-client privilege.McArthur distinguishes several different objections to the privilege, demolishing each in turn. First up is the notion that ACP is a mere evidentiary privilege--in other words, the prosecution could be able to view ACP communications, provided they were not introduced at trial.
On this account, the government is allowed to search and seize privileged communications as to which there is probable cause and use the information thus obtained in preparing its case, so long as the privileged communications, and possibly their fruits, are not introduced at trial.One of the most common responses to McArthur's argument is to claim that the, under this scheme, clients would still feel their information was protected, as it wouldn't be admissable at trial, mitigating the "chilling effect." McArthur dispenses with that counterargument:
There are at least two problems with this theory. First, it misconceives the nature of the privilege. It is simply not the case that the attorney-client privilege applies only to the introduction of evidence at trial. For example, privileged communications are not subject to discovery, and this rule is absolute in the sense that it applies even when the party seeking access to the privileged communications can show substantial need. Similarly, a grand jury cannot compel an individual to produce privileged communications, even when there is probable cause to believe that the communications contain evidence of crime. It would be anomalous if the government, prohibited from gaining access to privileged attorney-client communications by way of discovery or subpoena, could make an end run around these procedures by searching and seizing the communications.
Second, to refuse to extend the protections of the attorney-client privilege to the investigatory stage preceding trial would be profoundly at odds with the policies behind the privilege. If the government could search and seize privileged communications, attorney-client communications would be severely chilled and lawyers' ability to represent their clients effectively would be undermined. Conscientious attorneys would advise their clients that the government could lawfully intercept their communications. Faced with such a possibility, few clients would feel free to communicate openly with their attorneys.
This chilling effect is unlikely to be eliminated by explaining to clients that their intercepted communications cannot be introduced into evidence at trial. One suspects that such a distinction would be lost on many clients, whose candor is likely to be undermined by the bare threat of government intrusion into the attorney-client relationship and is unlikely to be rehabilitated by a lecture on the permissible uses of intercepted communications. In any event, any such lecture would also include the fact that evidence derived from intercepted communications-as opposed to the communications themselves-may well be admissible,44 a fact that can only be expected to confirm to clients that they communicate openly at their peril.This is a point that I haven't seen developed very well in the initial rounds I've judged. ACP covers strategic communications as well, and in our adversarial system, that gives far too much leverage to the prosecution, who have no such obligation to disclose their plans to the defense counsel.
Attorney-client communications would be chilled by the search and seizure of privileged communications even if the use of derivative evidence were prohibited. If the government could access privileged information, it would be difficult for anyone, least of all the client, to be confident that no derivative evidence would be introduced at trial. Prosecutors and investigators would almost certainly be able to use privileged information in ways that neither the client nor the judge could detect. That possibility would cause individuals to think twice before disclosing potentially damaging information to their attorneys.
Moreover, attorney-client communications would be chilled even if courts were somehow able to detect and suppress all the fruits of the breach of the privilege. This is because the privilege extends not only to clients' disclosures of factual information about the case that would be damaging if introduced at trial or that would lead investigators to additional evidence, but also to other communications, including, for example, discussions of trial strategy. A party whose trial strategy had been disclosed would be at a substantial disadvantage and an exclusionary remedy would not be responsive.
[It] is not accurate to say that the privilege operates in derogation of the search for truth, because without the privilege, many of the statements that it shields would not be made in the first place. On this view, the attorney-client privilege simply serves to restore the status quo ante and is therefore truth-neutral.In other words, ACP is a critical element to ensuring at least a modicum of truth in the proceedings.
First the law is complex and in order for members of the society to comply with it in the management of their affairs and the settlement of their disputes they require the assistance of expert lawyers. Second, lawyers are unable to discharge this function without the fullest possible knowledge of the facts of the client's situation. And last, the client cannot be expected to place the lawyer in full possession of the facts without the assurance that the lawyer cannot be compelled, over the client's objection, to reveal the confidences in court.Though this is the principal rationale for the privilege, it is bolstered by other theories. McCormick states that "[a]t the present time it seems most realistic to portray the attorney-client privilege as supported in part by its traditional utilitarian justification, and in part by the integral role it is perceived to play in the adversary system itself." The Supreme Court endorsed this rationale for the attorney-client privilege in Upjohn Co. v. United States:
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.
Under principles of federal common law, the attorney-client privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his or her capacity as a legal adviser and the advice given by the lawyer in the course of representing the client. SeeUnited States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980); In re Benun, 339 Bankr. 115, 126 (Bankr. D.N.J. 2006); In re Universal Service Fund Telephone Billing Practices Litigation, 2005 WL 3725615 at *5 (D. Kan. July 26, 2005):What are its essential elements?
Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection be waived.
Privilege is a response to a request by the opposing counsel. It's similar to--but not the same as-- confidentiality, which is an ethical obligation on the attorney to keep interactions with her client "close to the vest."
Only the communications pertaining to advice, and not the underlying facts, are protected by the privilege. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Williams v. Sprint/United Management Co., 2006 WL 1867478 at *5 (D. Kan. July 1, 2006) ("The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing."); United States v. Keystone Sanitation Co., 885 F. Supp. 672, 675 (M.D. Pa. 1994) ("attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed."); Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962). As the Supreme Court explained in Upjohn: "The client cannot be compelled to answer the questions, ‘What did you say or write to the attorney?', but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney." 449 U.S. at 396.
• Democracy is government in which power and civic responsibility are exercised by all citizens, directly or through their freely elected representatives.
• Democracy is a set of principles and practices that protect human freedom; it is the institutionalization of freedom.
• Democracy rests upon the principles of majority rule, coupled with individual and minority rights. All democracies, while respecting the will of the majority, zealously protect the fundamental rights of individuals and minority groups.
• Democracies guard against all-powerful central governments and decentralize government to regional and local levels, understanding that local government must be as accessible and responsive to the people as possible.
• Democracies understand that one of their prime functions is to protect such basic human rights as freedom of speech and religion; the right to equal protection under law; and the opportunity to organize and participate fully in the political, economic, and cultural life of society.
• Democracies conduct regular free and fair elections open to all citizens. Elections in a democracy cannot be facades that dictators or a single party hide behind, but authentic competitions for the support of the people.
• Democracy subjects governments to the rule of law and ensures that all citizens receive equal protection under the law and that their rights are protected by the legal system.
• Democracies are diverse, reflecting each nation's unique political, social, and cultural life. Democracies rest upon fundamental principles, not uniform practices.
• Citizens in a democracy not only have rights, they have the responsibility to participate in the political system that, in turn, protects their rights and freedoms.
• Democratic societies are committed to the values of tolerance, cooperation, and compromise. Democracies recognize that reaching consensus requires compromise and that it may not always be attainable. In the words of Mahatma Gandhi, “intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit.”
At a recent tournament, I made my opponent cry because I crushed the criterion of utilitarianism with the slavery argument--saying that it leads to a tyranny of the majority, which would justify slavery. I was wondering if that was a bad thing, because my coach says, "Always be polite while debating, and if you are able to destroy your opponent's argument, destroy it politely." I attempted to be polite, yet the tears still came and my judge docked points because I was "rude." Any tips on how to "destroy" my opponent's arguments politely?That's a tough call--without being there, it's impossible to know what your tone of voice was, precisely what words you used, etc. And sometimes it's just not your fault. I had a competitor one time who, frustrated because she had never heard of a particular philosophy before, broke down during the round and ran out crying. Her opponent hadn't done anything wrong--he was unfailingly polite in his presentation.
