Human dignity, confidentiality, and self-incrimination

As a third example of the grounding of lawyers’ responsibilities in concern for human dignity, let us next consider the attorney-client privilege and the related duty of lawyers to keep client confidences.

However, this is a weak, almost self-contradictory argument for con­fidentiality. After all, the only reason that I need confidentiality is my fear that without it my advocate can be compelled to reveal whatever story I tell her. The fear, in other words, is not that abolishing confidentiality will make my lawyer an ineffective mouthpiece. The fear is that it will make her all too effective, a perfect conduit of a story that I would prefer never gets told at all. The “mouthpiece” rationale behind advocacy seems on its face to provide an argument for abolishing confidentiality, not for preserving it.

Perhaps because they understand this, defenders of confidentiality usually invoke a utilitarian, systemic argument in addition to the one based on human dignity. Only if advocates know in advance the strengths and weaknesses of their case can they investigate properly and frame the strongest arguments; and a properly functioning adversary system requires investigation and strong arguments.

This, too, however, is a weak argument, because confidentiality and the attorney-client privilege can be used to keep crucial information out of the system as well as to ensure that it gets into the system.

Indeed, confidentiality can actually harm the innocent. Precisely because everyone knows that lawyers must keep the secrets of dishonest clients as well as honest ones, those who deal with lawyers may mistrust and discount the reliability of what they say on behalf of clients. This harms the innocent client who wants what her lawyer says to be trusted.^[139] As Richard Painter has shown, it may actually help business clients trying to reassure nervous potential lenders if lawyers and clients waive confidentiality, in effect con­tracting around the protections it offers.^[140]

So far, then, we find only reasons to abandon confidentiality and the attorney-client privilege, not to defend them. Let us try again. Suppose the attorney-client privilege and the duty of confidentiality were eliminated from the legal system, and consider the situation faced by a client with something to hide.

At this point, in fact, the argument becomes isomorphic to a parallel argument in the debate about the privilege against self-incrimination (which, by the way, Bentham also opposed on utilitarian grounds). The con­fidentiality trilemma exactly parallels the US Supreme Court’s analysis in the 1964 opinion Murphy v. Waterfront Commission.^[141] According to the unan­imous Court, abolishing the privilege against self-incrimination is inhumane because it would confront the witness with “the cruel trilemma of self­accusation, perjury or contempt.”^[142] That is: if the witness refuses to testify, he can be jailed indefinitely for civil contempt; if he testifies truthfully, he incriminates himself; and if he testifies falsely he commits perjury. The confidentiality and self-incrimination trilemmas involve the same trio of options: self-destructive silence, self-incriminating revelation, and lying.

Murphy's cruel-trilemma argument - and, indeed, the entire rationale of the self-incrimination privilege - is controversial.^[143] For, one might ask, why recognize a privilege that (like attorney confidentiality) often helps the guilty escape conviction? And what is so cruel about compulsory self­incrimination? Obviously, self-incrimination is bad for the witness because it might convict him of a crime; but we typically suppose that convicting the guilty is socially valuable rather than cruel, even if the guilty find it dis­agreeable.

Professor Akhil Amar believes that the cruelty Murphy worries about is “psychological,” the angst of the hard choice.^[144] But, as Amar and other commentators rightly observe, this worry seems excessive, and oddly inconsistent with our willingness to countenance other psychologically wrenching criminal investigation techniques. Witnesses can be and are compelled to testify against their friends or members of their immediate families; if anything, compulsory betrayal is more “ruthlessly callous” than compulsory self-incrimination.^[145] Moreover, prosecutors have little com­punction about immunizing foot-soldiers in criminal gangs to compel their testimony even when the witnesses run the risk of being murdered or having their families murdered if they sing.⁴⁷ Now that is an agonizing choice. If the law is so concerned about psychological cruelty, why permit practices like these?

The answer, I believe, is that the cruelty of compelled self-incrimination is at bottom not psychological. In fact, the Murphy Court makes no mention of psychology - but it does say that compulsory self-incrimination would contradict “our respect for the inviolability of the human personality.”^[146] That sounds like a more abstract and philosophical concern than worry about the witness’s unpleasant psychological experiences.

The basic idea is that although it is sometimes permissible to injure someone, for example by punishing him, it is immoral to make him do it to himself. You do not make the inmate lock himself in his cell each night, just as you do not punish a naughty child by making her throw away her favorite toys - even if locking up the prisoner or taking away the child’s toys are acceptable punishments when administered by an appropriate outside authority.^[147]

This intuitive idea seems right. However, it may not suffice to explain the cruelty of compelled self-incrimination. As David Dolinko points out, what revolts us about compelling people to administer punishments to themselves is the element of deliberate sadism. The sole point seems to be humiliating the victim. By contrast, the point of compelling testimony is not humiliating the witness, but finding out the truth. Absent the aspect of deliberate humi­liation, we might find no special affront to human dignity in compulsory self- incrimination.⁵⁰

I think that Dolinko is right that compelled self-punishment violates human dignity because it humiliates the victim. But he is wrong that com­pelled self-incrimination does not likewise humiliate the witness. In both practices, the humiliation lies in enlisting a person’s own will in the process of punishing her, splitting her against herself. To see this, begin with the actual language of the self-incrimination clause, which states that no person “shall be compelled in any criminal case to be a witness against himself.”⁵¹ The crucial phrase “witness against himself” indicates a kind of splitting or division within the self - one half, the person with an interest in evading condemnation; the other, the witness who disinterestedly provides whatever information the state requires. A witness fulfills a civic obligation. Even if it is unpleasant or inconvenient to testify, she must do so for the good of the community, if necessary under compulsion of subpoena.

To be a witness against yourself means to assume the disinterested out­sider’s stance toward your own condemnation. This represents an extra­ordinary kind of self-alienation, as if the only interest you have in the matter is the state’s interest in ascertaining the truth and apportioning blame. Being a witness against yourself divides you in two, one the individual with an interest in evading condemnation, the other the state’s representative; and compelling you to be a witness against yourself subordinates the former to the latter. In effect, it treats the individual as insignificant - as if his sub­jectivity simply doesn’t exist or doesn’t matter. Even if humiliation is not the purpose of compelling someone to be a witness against himself, as it is in forcing someone to administer his own punishment, humiliation is the outcome.

It might be thought that the real issue in self-incrimination is what it does to the witness’s autonomy - his natural right (the Lockean language seems appropriate here) to reject the state and the community and the law, and to say, in effect, “You can lock me up if you want to, but you won’t get me to help you do it.” Michael Green likens the witness to a prisoner of war who refuses to give any information except his name, rank, and serial number.^[148] In the same vein, Michael Seidman relates the following story from a criminal trial. An aggressive prosecutor was cross-examining a defendant with an alibi, hectoring him with trick questions to make him seem like a liar. As the barrage of questions continued, the defendant “stood up, straightened himself to his full height, and said in words that will live as long as the English language is spoken, ‘Fuck this shit!’ ” He was convicted, and went to prison. Seidman comments: “But in a deeper sense, he was a truly free man. They had his body, but they couldn’t touch his soul.”^[149] Saying “Fuck this shit!” to the state, one might think, is the autonomy right that the self-incrimination clause means to defend: the right spares the witness the need for the heroic melodrama that Seidman’s client engaged in.^[150]

Although this is an attractive argument, I don’t in the end think it suc­ceeds, and I don’t think autonomy is the real issue.^[151] I have already argued that identifying human dignity with autonomy represents a deep philoso­phical mistake. But even those enamored of autonomy must recognize that in the context of self-incrimination the appeal to autonomy proves too much. If the self-incrimination privilege protects a supposed natural right to flip the

bird at the state sub silentio, then how can we explain the practice of sub­poenaing witnesses to testify against their will about other people? Remember the paradox at the heart of the self-incrimination privilege: the law is willing to compel people to bear witness against others when they passionately wish not to do so; and the law is willing to use hard means to bring criminals to justice. But the law is unwilling to bring criminals to justice by the hard means of compelling them to bear witness against themselves. It is the combination of the two - the inner split, the self­alienation, at the heart of compelled witnessing against yourself - that gen­erates the humiliation that the self-incrimination clause means to spare us. Autonomy has to do with individual will, which the law reserves the power to override to serve important social goals. Self-alienation goes to something more basic than will - it goes to protecting the self, which the law must never override on pain of violating human dignity.

Consider next that there is no right to remain silent in a noncriminal case, even if the stakes are enormous. This shows that the point of the self­incrimination clause is not to spare people the burden of testifying against their own important interests.^[152] The privilege concerns only one specific interest - the interest in avoiding criminal condemnation. The difference cannot be that criminal punishments are harsher than the stakes in non­criminal matters, for that is not invariably true. If the difference does not lie in the tangible consequences, then it must lie in the moral element of criminal punishment: the fact that criminal conviction joins a tangible penalty with condemnation. Noticing this helps identify more exactly the split in the self that compulsory self-incrimination creates. Making the witness testify enlists his will in the process of his own moral condemnation. It is not exactly a compulsory mea culpa, because the witness testifies to facts, not to guilt; but it is a compulsory mea inculpare, and that seems just as humiliating.

American law recognizes the special affront to human dignity that comes from forced confession in only one context, when the confession is itself insincere. I am referring to the curious practice known as the Alford plea, in which a defendant accepts a plea bargain but denies factual guilt.^[153] The background is this. When a defendant accepts a plea bargain and enters a guilty plea, the judge is responsible for ascertaining that the guilty plea is voluntary. The judge will ask the defendant if he truly admits to the elements of the crime. But what if he doesn’t? What if he has accepted the plea bargain

only because he is afraid of what will happen if he goes to trial? Confronted with a strong capital murder case against him, Alford accepted a life-saving plea bargain, but said to the judge,

I pleaded guilty on second degree murder because they said there is too much evi­dence, but I ain’t shot no man, but I take the fault for the other man. We never had an argument in our life and I just pleaded guilty because they said if I didn’t they would gas me for it, and that is all.⁵⁸

Alford was convicted. The question raised in his appeal was whether his plea was voluntary.

The Court said yes. The outcome was probably a foregone conclusion, because the Supreme Court was not going to throw out the practice of plea­bargaining, nor was it going to say that Alford should have lied under oath. The remaining alternative was to condone guilty pleas in which defendants deny their factual guilt.

This result may be the reductio ad absurdum of the view that plea­bargaining is morally acceptable. But, supposing for the sake of argument that the practice of plea-bargaining is acceptable, Alford pleas may be seen as a requirement of human dignity, because without them defendants would be placed in a “cruel dilemma” of rejecting life-saving plea bargains or dis­owning their own stories by stating in public that they are guilty when they believe they are not. Notice that the Alford plea makes no difference in the defendant’s sentence - it actually makes no practical difference at all. The sole rationale seems to be protection of the defendant’s dignity.

After this prolonged detour through the privilege against self-incrimination, let us return to confidentiality and the attorney-client privilege. Eliminate the attorney-client privilege, and the defendant’s three choices are vicarious self-incrimination, lying to her lawyer, or telling her lawyer little or nothing. Either of the latter two choices effectively forgoes the very right to counsel that we have seen is closely tied to respecting human dignity. Thus, each horn of the trilemma violates the defendant’s human dignity in one way or another. Furthermore, as we have analyzed these violations, our under­standing of human dignity has become clearer and fuller. Human dignity consists in having one’s own story to tell. It consists as well in not subsuming one’s own point of view - one’s own story - to the impersonal needs of the legal system.

Of course, a complete discussion of the human dignity defense of lawyer confidentiality would have to address many other issues. One issue is why on this argument the constitutional privilege not to bear witness against yourself applies only in criminal cases, but the attorney-client privilege applies in all

cases. Another issue concerns exceptions to the attorney-client privilege and confidentiality, topics of perennial debate. These I defer to another occasion.

I do wish, however, to highlight one conclusion that is likely to be con­troversial. Because, in my view, the rationale for lawyer confidentiality and the attorney-client privilege is to protect the human dignity of the client, it should apply only when the client is a flesh-and-blood person. In Lawyers and Justice, I argued that the organizational attorney-client privilege should be abolished, because organizational clients are not subjects with human dignity, and the privilege costs society too much by facilitating corporate coverups.^[154] This argument, which I naively regarded as among the strongest in my book, attracted no subsequent discussion, not even criticism. Appar­ently, my recommendation was too fanciful to take seriously. Yet in the years since I published it, events have amply confirmed my worries. One such event was the collapse of the savings-and-loan industry in the late 1980s, a catastrophe that required the services and confidentiality of lawyers every step of the way. Judge Stanley Sporkin’s blistering opinion in the Lincoln Savings and Loan case, with its famous question “Where were the attorneys?”, was prompted because Sporkin understood all too well that the lawyers knew everything but said nothing.^[155]

The second major event was the gradual unveiling of Big Tobacco’s secrets through a combination of whistleblowing and litigation. One of the striking revelations was how successfully Big Tobacco’s lawyers had abused the attorney-client privilege as an information-concealing device. Now some might say that the tobacco case shows that sooner or later even the best-kept secrets will come out, so there is no need to pare back the corporate attorney­client privilege. Eventually a Merrell Williams or a Jeffrey Wigand will blow the whistle. It doesn’t have to be a lawyer.^[156]

But I think the lesson is the opposite. The privilege was an essential tool in suppressing information for forty years. The corporate attorney-client privilege has turned out to be a bad utilitarian bet for society; and the “deontological” human dignity defense of the privilege cannot be invoked on behalf of an artificial person with no soul to divide against itself, no body to imprison, no subjectivity to ignore and humiliate.