What is the role of truth in our judicial process? How does the legal system determine the truth, and why does it matter? And, at bottom, what do we mean when we say we are seeking the truth? What, after all, is the truth?
To state the question makes the answer seem obvious, but it only seems so. We tend to think of the legal system as an engine for determining the truth, for finding out what the facts are. But truth is often the first casualty of the litigation process. This is because we, as a society, often place a higher value on procedural protections that are designed to assist in the search for truth in the long term than we do on finding out the facts in every individual case. Because of those procedural impediments, the search for truth in particular cases often founders. This is quite remarkable-we actually sometimes say that the "system" is better off if the truth is not disclosed.
Why is that and how does it work? In its search for truth, our judicial system utilizes two fundamentally competing paradigms: the structure of testimonial privileges serving system-based values that we erect to permit witnesses to refuse to testify truthfully, and the competing obligation to testify truthfully in the absence of a privilege under pain of criminal prosecution for perjury if one fails to do so.1 These two strands of the law are in tension-not, typically, in an individual case but as competing expressions of the goals of our judicial structure. Do we seek truth at any cost, or do we seek it only when other, more significant values are not served? And why make the choices we make in our legal system?
A testimonial privilege is an individual's right to refuse a command to testify truthfully. Many such privileges exist in our system. Wives cannot be compelled to testify against their IMAGE FORMULA9
husbands;2 priests cannot be compelled to disclose what they learn in confessional.3 These testimonial privileges obviously obstruct the search for truth. Simply put, if a witness with relevant information is empowered to refuse to testify, that diminishes the quantum of information available to the prosecutor; the jury; the courts; and ultimately, the public. As a general matter, our legal system is founded on the premise that it serves to determine the truth of historical events. We litigate cases and have trials in order to find out what has happened-- what the facts are.
Yet even as we construct a truth-seeking system, we erect obstacles to its operation. The law of privilege consciously obscures the truth. It is as though we say we can seek the truth but we choose not to. What would motivate such a choice? To examine this broad question in a relatively discrete way, I confine the inquiry in this essay to the law of attorney-client privilege with a brief detour into the closely related question of the law of executive privilege.
A. The Attorney-Client Privilege Generally
The attorney-client privilege has its historical origin in England as early as the 1500s.4 It stems not from any professional obligation, but from a broader "code of the gentleman."5 All gentlemen, including attorneys, were obliged not to disclose anything told to them in confidence.6 This rule was also congenial with the law, which prevailed in England well into the IMAGE FORMULA14
19th century, that parties to the litigation themselves were incompetent to testify, either on their own behalf or if examined by their adversaries.7 It was thought that as an interested party the potential for untruthful testimony was too great.8 And if so for the party, then so too for all of his confidants, whether attorneys or mere close friends.
In the United States, however, the attorney-client privilege has never been the product of social convention. As early as the Revolution our courts repudiated the "code of the gentleman," reasoning, as McCormick (one of the original crafters of our evidentiary rules) has said, "that the need for the ascertainment of truth for the ends of justice loomed larger than the pledge of secrecy. …