“If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” –Cardinal Richelieu
So you want to know how to respond to somebody that claims that “In the United States criminal justice system, truth-seeking ought to take precedence over attorney-client privilege.” You want to do this because clearly lots of truth about criminals is hiding under a nefarious layer of attorney-client privilege. And I may be able to help you with this, but first we need to talk about your rights: You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney. If you cannot afford one, one may be provided for you. Are you with me so far? Because we need to step back and revisit those preconceived notions.
The resolution is predicated on the notion that the country is full of criminals, committing crimes, confessing them to their lawyers, and then not being convicted of their crimes. This is wrong. First, the FBI reports that less than half of violent crimes — and only 19% of property crimes — in 2012 have resulted in an arrest and subsequent prosecution. Second, at the federal level, when a subsequent prosecution happens, 86% of defendants plead guilty. In cases where a public defender is assigned to the case, this shouldn’t be surprising — in New Orleans, public defenders spend an average of 7 minutes per case: how else can they advise their client to plead? But the real kicker is that 25% of the people who have been released from prison (having been exonerated by DNA-based evidence) actually confessed to crimes that they didn’t commit because they were under pressure from the police and district attorney and were assured that they’d have an easier time if they confessed their guilt instead of seeming unrepentant… for something they didn’t do. If we value truth and justice, then we need to prove it by improving the core of our criminal justice system to better protect the people who are simply victims of circumstantial evidence from people who want to be right — not by shredding the one protection they’ve got when the police pick them up for an extended “interview.”
Let’s get specific: on April 19, 1989, the NYPD arrested several kids for sexual assault and attempted murder of a jogger in central park. Over the next 14 to 30 hours, the police convinced most of the kids to write and then videotape confessions that were conflicting, inaccurate in the details, wildly wrong in the facts, and also complete fabrications because the perpetrator was actually just one serial offender that the police hadn’t caught. But with the confessions, and in spite of mismatched DNA evidence, the prosecutor convinced the jury to convict the kids. The convictions against the “Central Park Five” were vacated 13 years later when the actual perpetrator — who was serving time for other offenses — confessed to the crime with details that nobody else had, and also with DNA that nobody else had. “But [district attorney] Morgenthau’s decision was angrily denounced by the police officers who had been involved in the original investigation, who refused to believe that the boys were innocent. After all, they had confessed.” (Tavris & Aronson, 2008, Mistakes Were Made (But Not By Me))
Ken Burns put together a documentary on the Central Part Five. As Craig Wilder, historian, says of the Central Park Five “Once we were on the path to identifying these young men as the culprits — it’s hard to get off that path. And race, power, and politics make it extremely difficult.” Saul Kassin explains that “The problem is once you form a strong belief that somebody is guilty of a crime, the contradictory details are just that: they’re details, but they don’t fundamentally change our belief in their guilt.” Lynell Hancock, journalist, adds “Linda Fairstein made a huge name for herself in part because of this case. It was extremely important to her profession and her reputation. So she’s got a lot to lose by saying ‘I got everything wrong and I railroaded these kids into jail.'”
So how did the truth-seeking prosecutor go astray?
“By the time prosecutors go to trial, they often find themselves in the real-world equivalent of a justification-of-effort experiment. They have selected this case out of many because they they are convinced the suspect is guilty and that they have the evidence to convict. They have invested many months on a case. They have worked intensely with police, witnesses, and the victim’s shattered, often vengeful family. In the case of crimes that have roused public emotions, they are under enormous pressure to get a conviction quickly. Any doubts they might have are drowned in the satisfaction of feeling that they are representing the forces of good against a vile criminal.” (MWM)
So we can see that the focus on truth-seeking goes by the wayside as the prosecutor advocates the state’s case against the defendant. And this is why the defendant needs an advocate and not just some law-person, and in order to have an effective advocate the defendant needs to be able to confide in their advocate. As Cole explained
“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.” (2003, “Revoking Our Privileges”)
But if the defendant isn’t guilty of the crime, then they’ve got nothing to hide behind attorney-client privilege, right? Wrong. Justice Briar, on the U.S. Supreme Court explained in 1998:
“The complexity of modern federal criminal law, codified in several thousand sections of the United States Code, and virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know in advance just when a particular set of statements might later appear to a prosecutor to be relevant to some investigation.”
This is because:
“Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. And these laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are nearly 10,000.” (Paul Rosenweig, 2003, “The Over-Criminalization of Social and Economic Conduct“)
And even in a best case scenario when a defendant has told the police things that will exonerate them, the police won’t repeat it in court because — under the rules of evidence 801(d)(2)(a) — it’s hearsay and objectionable. That’s what “may be used against you in a court of law” means: it means not used for you. And this adversarial conflict is exactly why a defendant needs an advocate that they are safe confiding in.
So in our criminal justice system, attorney-client privilege must not be abridged on the truth-seeking whim of the state. The state is deeply invested in prosecuting the defendants, just like we want them to be: they really need to not have any doubt about what they’re doing when they’re trying to have people incarcerated for decades. But our police and prosecutors need to dispel their doubts by following leads, finding evidence, and verifying it with multiple sources if possible, and not just taking a fishing expedition into what the defendant might happen to say they could be guilty of in a moment of duress once the poor soul is already being subjected to the ordeal of our law enforcement system.