Jan 11 Feedback

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What is guilt?

I would just like to reconsider an assumption that I felt was running through the discussion of attorney-client privilege in the criminal context. Much of the discussion focused on the difference between protecting an innocent person and protecting a guilty person. But I have to ask, is there such a thing as guilt or innocence before the law lord as processed the case?

Yes, a shooting is a fact, a killing is a fact, but "murder" and "manslaughter" are legal constructs. So how is there such a thing as guilt before we see if the known facts fit into one of our recognized legal constructs?

When people speak of pre-trial guilt or "true" guilt, I think they might defend the concept as "the conclusion that would be reached when a perfect fact-finder with perfect information perfectly applied the law." There's alot of assumptions there. I can't imagine such a thing.

So I posit the idea that guilt is a legal construct and therefore the word "guilt" can only be used meaningfully after the law lord has accepted one of the competing narratives.

--kstalter

nesson here: you make a good point, but how does it bear on the argument bentham makes?

kstalter responds: Bentham's argument assumes that there is such a thing as guilt even in the absence of legal resolution of the case. Once this assumption is undermined, his distinction between the innocent who have nothing to worry about and the guilty who are rightfully disadvantaged loses much of its force.

jorlando-- The rationale that guilt has no meaning before the law lord’s machinery has produced an output has some rather stark implications. Say 2 couples, vacationing together, get stranded on an island. There is no immediate shortage of food or other supplies. Husband 1, however, has long coveted Wife 2, and the feeling is mutual. So he kills his own wife as well as Husband 2, with no fear of judgment by the system, because there is none. Would you say he’s not guilty, that he should live the rest of his life with a clear conscience? I know this example is contrived, and I agree that the law is full of often arbitrary legal constructs—such as the murder/ manslaughter distinction. But isn’t there also a background notion of guilt as well? A notion that may comes for some from their religion, and from others from their moral construct?

kstalter: There are many different meanings of guilt. I, for one, am not ready to conflate moral guilt and legal guilt. Moral guilt, based on religion or some secular moral theory, has immutable and eternal characteristics and arguably flows from the divine. Certainly, I would agree with you that Husband 1 is morally guilty. However, the legal system is a function of a human government and is far more limited.

jorlando: I agree that we shouldn't conflate moral and legal guilt. In that sense maybe I wasn't really addressing your point. I'm not sure about the concept of legal guilt without the legal system's conclusion as to that guilt. Think of a defendant who gets aquitted on the basis of what the public sees as a "technicality," and someone lamenting that a "guilty man went free." I'm not sure if that's just a judgment about his moral guilt, and a condemnation of the law machine finding legal innocence; or something else, a judgment that the person is legally guilty despite the contrary result by the machine; and would the latter possibility even be coherent in our system.

kstalter: I think I see what you are saying. I do have to ask, what definition of "legal guilt" are you working with? An aside, to paraphrase something I once heard somewhere, the difference between a "technicality" and a "fundamental right" is often the difference between whose side you're one.

Possible Justifcation for Civil, Corporate, Attorney-Client Privilege:

A lawyer is necessary to talk effectively to the Law Lord. (As a priest is necessary, in some faiths, to talk to Religion Lord.) If we recognize a right to speak to these Lords, we must recognize the right to talk to the necessary intermediaries without giving up the rights we’d normally hold in our own thoughts. Since you couldn’t have your own strategic thoughts subpoenaed (regarding trial preparation or religious devotion), you shouldn’t loose the rights to the thoughts you share with your intermediary in order to exercise the right to talk to the Lords.

I can’t see why this rationale wouldn’t extend to civil cases, and assuming we wish to extend a corporation the rights of a person to talk to the Law Lord, I can’t see why this rationale wouldn’t extend to corporations.

Any suggestions?

Thanks,

Mike Redmond

A Related Thought on This Subject:

In corporate, civil proceedings, attorney-client privilege is perhaps appropriate because self-editing is still a concern: If corporate leaders know that their lawyers would be forced to disclose what was told to them, they would not run their plans in front of the lawyers for fear that competitive information may eventually be disclosed -- let us even assume that the information they fear will emerge implicates no illegality, but simply discloses trade secrets. They might then execute the plans anyway, and violate the law more times than they would if they could have otherwise been induced to run the plans by lawyers.

If we think it is important for lawyers to review and restrain corporate decisions as much as possible, we need to remove disincentives for corporations to go to their lawyers. While legal proceedings might attempt to get information directly from the corporate leaders themselves, in a self-editing universe they might be in a practical position to attempt concealment of information they want to conceal, while they might percieve their corporate counsel to be less willing or able to engage in that behavior.

-N.Katz

A thought about something someone just said about the balance of power between the government and the criminal defendant. People often state the government has "near unlimited resources" to throw at the "lone defendant." This is gross hyperbole. Certainly a prosecuting attorney has more resources, but District Attorney's offices have limited (and low) budgets. The federal government is never going to pull money out of the Department of Defense and Department of Education to lend weight to a state level murder prosecution in Suffolk County, Massachusetts, for example. The commonwealth itself won't even pull money from other things to prosecute a criminal. So the idea that the balance of power is infinity versus one is a little ridiculous. --kstalter

Nevermind the fact that knowledge of what actually happened is both a resource and a form of power. JP