Criminal Procedure should value truth-seeking over individual privacy.
Part 3 will be focused on some basic case positions and central areas of clash for the Affirmative and Negative which you’ll likely face in the upcoming season.
The resolution is predicated on injustice being undertaken on both sides of the debate. It’s your job to compare and weigh which of the two philosophies governing criminal procedure is preferable or more just, through your value & value criterion weighing mechanism.
- Aristotelian Justice – The fundamental purpose of the criminal procedure is to facilitate just means to achieve a just outcome for an accused criminal. Valuing individual privacy over truth-seeking creates scenarios (e.g. the application of the exclusionary rule) where true justice is withheld from the accused; that person is not given what they are due. In the Negative world, the obligation of the government to mete out criminal justice is not upheld.
- Protecting the Innocent – The negative creates a scenario in which the inability to acquire evidence to facilitate true justice results in the conviction of the innocent. Such an outcome would occur to a far greater extent in the negative world as opposed to the affirmative world. The fundamental pillar of justice of the presumption of innocence and the necessity to protect the innocence would undergird this position. Negatives could argue that violations of individual privacy harm the innocent, which is where weighing will come into play.
- Societal Welfare – Consequences exist when individuals fail to receive just conviction, judgment, and punishment due to prioritizing individual privacy via attorney-client privilege. Affirmatives could argue that the ends of letting guilty individuals go free (which would occur more often in the Negative world) lead to loss of life and direct harm to society which outweigh violations of individual privacy in acquiring evidence for a just trial. Potential applications could focus on searches near the borders (where there is a 100-mile suspension of the Fourth Amendment), police stops, and attorney-client privilege.
- Standard of Dignity – If violating individual privacy via searches without probable cause or through acquiring evidence via illegal methods is justifiable because it upholds the end of a just outcome, does that justify any unjust means to achieve the just end of truth-seeking? Individual privacy, a fundamental right to be let alone, forms the basis for countless other rights and protects the dignity of the individual from government and outside action. The affirmative world, in its pursuit of truth as the ultimate end and ability to override individual privacy at whim, lacks any standard (e.g. due process or individual privacy) which prevents government application of criminal procedure from going too far. (Can trials force plaintiffs to answer questions by violating their individual privacy in thought or speech?)
- Treating Others as Ends – The affirmative system of prioritizing truth-seeking over individual privacy allows for unwarranted searching and violation of rights, which treat individuals as mere means to an end of “true justice.” Negatives could utilize a Kantian system of ethics arguing that individuals must be treated as ends and not as mere means to an end through valuing individual privacy over truth seeking.
- Due Process/Protection of Rights – This variety of arguments will require a tremendous amount of weighing and justification, but it is a powerful one. Negatives can argue that violations of rights absent due process are unjust. Keys to this argument will be upholding a deontological system of ethics establishing why the fundamental obligation of government is the protection of rights and upholding of due process. You’ll have to bite the argument concerning harms of potentially unjust sentencing, but can utilize both an obligation-based and an ends-based argument to show why unjust violations of due process are a greater affront to justice and a government’s duty through criminal procedure. This article is an excellent start!
Stay tuned for Part 4 later this week. This final section will tackle key applications and critical strategy Affirmatives and Negatives must take into account to succeed!