Right to Counsel, Subpoena Power and The Right to Privacy

by | Sep 12, 1989

Whether indigents accused of crimes should be provided with free counsel by the state; Whether a state should have the power to subpoena witnesses; and Whether there is a "right of privacy."


During the 1989 session of The Jefferson School, The Association For Objective Law presented a panel discussion of three law-related topics:

  • Whether indigents accused of crimes should be provided with free counsel by the state;
  • Whether a state should have the power to subpoena witnesses; and
  • Whether there is a “right of privacy.”

The panel topics were chosen because they were topics on which Objectivists might very well disagree.

The panel was comprised of TAFOL officers. Dr. Harry Binswanger acted as moderator and “commentator-at-will.” For each topic, one panel member made a short presentation. Other panel members and Dr. Binswanger then commented. Finally, questions and opinions were solicited from the audience. Thirty minutes were allotted for each topic. One disclaimer was made: members of the panel did not profess to be experts, whether as lawyers or philosophers of law, on the topics discussed. An additional disclaimer should be made here: any particular opinion expressed by a panel member may have been put forward for the sake of lively discussion, but may not represent that person’s actual view.

Right to Counsel

Steve Plafker, TAFOL’s vice president, began with a discussion of the right to counsel. His discussion focused upon the right to counsel in present society, not in a fully free society. Steve stated that under the Sixth Amendment to the United States Constitution, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” According to Steve, this provision was never meant to require that counsel be provided to an indigent criminal defendant at state expense. Its purpose was to ensure that no federal court adopt the common law rule that a defendant in a felony case could not hire a lawyer to represent him. The United States Supreme Court held to this view of the purpose of the amendment until 1938 when it ruled that a federal court must provide such counsel. In 1940 the Court refused to apply this rule to the states; but in 1963, in the famous case of Gideon v. Wainwright, the Court ruled that the states must provide counsel for a defendant in a felony case. The Court subsequently expanded the application of this rule to any case that may result in incarceration.

Steve then began his argument in favor of providing counsel to indigent criminal defendants by observing that the American system of justice is an adversary system. That is, in any given case, each side presents evidence and arguments favorable to its position, and a judge or jury makes a decision based on the information presented. The proper working of the system requires that each side be able to present its position adequately. The rules of evidence and procedure are necessarily technical; their use requires a specialist. In most cases, a layman who seeks to defend himself will not be able to present an adequate defense. To deprive a person of his life or liberty without giving him a fair opportunity to defend himself is to subvert the system.

Steve continued his argument in favor of the rule by stating that the equal protection clause of the Fourteenth Amendment requires that persons similarly situated be similarly treated. An unrepresented defendant is more likely to be convicted than his represented counterpart; and if convicted, the former is likely to receive a heavier sentence. It is irrational and unfair for the criminal justice system to treat two men differently on the basis that one has more money than the other.

Several objections to Steve’s argument were raised. Dee Tagliavia, TAFOL’s treasurer, asked Steve how he could reconcile his position with TAFOL’s opposition to mandatory pro bono. In both instances, Dee argued, representation for indigents is secured by the initiation of
force by the state. In one instance, it is the taxpayer who is forced to provide funds with which to pay for representation, and in the other, attorneys are forced to forego payment for the representation provided.

Arline Mann, TAFOL’s president, raised a similar objection, stating that legal assistance should be a private service. Why should the government provide defendants with a private service at the expense of others? Defendants have other options: they can appear pro se (for themselves, without a lawyer); they can hire their own attorney; they can, if they are poor, borrow money to pay an attorney’s fee, try to convince an attorney to volunteer to help them, or use an attorney provided by a charitable organization such as Legal Aid.

Dee also inquired whether a defendant might not receive a fair trial even if he found himself in court without a lawyer. For example, wouldn’t it be possible for the judge to assist him? Steve responded that the function of judging and the function of advocating a particular position (or assisting a defendant) are incompatible. Steve, a seasoned prosecutor, assured the assembly that it is all too easy for an experienced prosecutor to take advantage of a non-lawyer in criminal proceedings.

Dee and Arline also expressed concern as to how far the idea of parity in representation would have to be carried. Must the public defender have attended a law school as good as the prosecutor’s? Must the advocates have had equal years of experience? Must a private investigator be provided to assist in the indigent’s defense? Must expert witnesses be hired on the indigent’s behalf? Through how many levels of appeals must parity in representation be maintained?

Arline stated that providing counsel to indigent criminal defendants raises many other difficult questions. For example, should the government also provide indigent civil defendants with counsel? The proceeding may not have been brought by the government, but the forum is provided and the result enforced by the government. Will attorneys provided to criminal defendants by the government really be competent? Do they face any conflicts by virtue of the fact that their salaries are paid by the government?

Dr. Binswanger conducted a straw vote on the right to counsel. Audience and panel opinion were both divided.

Subpoena Power

Arline opened the discussion on the propriety of the subpoena power by explaining that a subpoena is a command to appear at a specified time and place to give testimony or to produce documents or other things. It is used to obtain testimony or materials from an unwilling third party; that is, someone who is not the plaintiff or defendant in the proceeding. Subpoenas are generally issued in connection with a pending proceeding (a trial, arbitration or regulatory proceeding) or in connection with pretrial discovery proceedings. The essential point is that subpoenas have the power of the government behind them. Through a subpoena, the government can haul a person into court or force him to produce documents, on pain of contempt punishable by fine or imprisonment.

Arline stated that, in her discussion of subpoenas, she would focus upon a basic factual situation. She would assume that the person to whom a subpoena is directed has highly relevant information, and that he is the only one with that information. Further, she would assume that the information is crucial to the prosecution or defense of a murder trial; that is, that the person witnessed a murder and knows that the defendant either did or did not commit the crime. Finally, she would assume that the witness’ appearance at trial would impose only a minimal burden on him, that it would present no danger to him and involve only minor inconvenience and expense for which he would be reimbursed. Given these assumptions, is it proper to force the person to testify at the trial through the issuance of a subpoena?

Arline went on to explain that she and many other people have an immediate emotional reaction that the subpoena power must be proper. It seems wrong that someone who knows that a murderer may be set free or that an innocent person may be convicted without his testimony should be permitted to refuse to testify because he doesn’t feel like making the trip to the courthouse. But, Arline argued, the law should not punish people for mere irrationality, and if the subpoena represents the initiation of force by the government, it should not be used.

Arline did not think that subpoenas are an instance of the initiation of force by the government, but that they are a proper tool of government. She propounded two theories
as to why this is so.

First, a refusal to testify for the prosecution may amount to being an accessory after the fact. It is similar to harboring a criminal. In other words, it is the refusal to testify that is a crime, and the subpoena that is self-defense. The same would be true if the witness refused to testify for the defendant, although this is a bit less clear. Such a refusal could be seen as aiding a wrongful prosecution, and thus violating the rights of the defendant. Arline said that she
thought, however, that this theory begs the question, in the sense that it can only be a crime to refuse to testify if the government or the defendant have a right to demand that the person testify.

Arline stated that she was more comfortable with her second theory, although it had its problems as well.

Arline stated that Ayn Rand has said that when people live together, they properly renounce force and delegate their right of self-defense to the government. Arline thought that in practical terms, the subpoena power is a necessary tool in uncovering and protecting against violations of rights. She argued that one cannot both claim the protection of the system but arbitrarily refuse to do what is necessary for the system to work; or assert one’s rights while arbitrarily refusing to do what is necessary to protect the rights of others. Thus, in the usual case, it is not appropriate for the subpoenaed person to complain that his rights are being violated. The principle is analogous to a classic tort principle. If a man is running from a murderer and is forced, in order to save his life, to trespass on the land of another, the necessity of his action is a defense to a charge of trespass. The principle is that one cannot arbitrarily assert an empty right where to do so would seriously harm an innocent person.

Arline agreed that there are problems with this theory. What constitutes necessity? And doesn’t this mean that a person’s rights may be violated whenever someone else makes a convincing argument that he will be injured unless they are? Isn’t “necessity” dangerously vague? Arline thought that although there are certain difficult questions, and the rules must be narrowly drawn, there are important distinctions between the run-of-the-mill situation and the situation in which the testimony is truly important to the proceeding and a truly empty “right” is asserted.

Sandy Franklin, TAFOL’s secretary, raised various issues in response to Arline’s defense of the subpoena power. First, Sandy indicated a concern about those instances where the witness being subpoenaed is inconvenienced, put in danger, or subjected to an economic forfeiture of some sort. For example, she wondered whether the subpoena power is appropriate in those instances where business records of a proprietary nature are subpoenaed.

Sandy also inquired why prospective witnesses shouldn’t be paid rather than forced to appear without compensation. In addition, she asked what is the empty “right” that Arline stated was asserted by a witness who refuses to give critical testimony.

Arline agreed that the questions Sandy raised are difficult questions. What should happen when testifying is an inconvenience or a danger to the witness? Arline thought these problems can be solved by having courts exercise much more control over subpoenas than they do now, and by limiting the use of subpoenas to certain situations. There might be a rule that subpoenas are issued only in criminal cases, and only for trial or essential depositions, not for extensive discovery proceedings. There might be a rule requiring a high degree of materiality in the information the witness possesses. Arline thought there should certainly be a requirement that parties must apply to the court for an order that a subpoena be issued. Today, in most instances, subpoenas can be issued by attorneys, and the subpoenaed person is the one who must apply to the court if he wants to resist the subpoena. Clearly, Arline said, the subpoenaed person should be accommodated and compensated as much as possible for any inconvenience or expense. Where there is a real burden on the witness—where there is significant detriment that cannot be avoided or compensated, or where there is danger (such as where the witness has been threatened by those who do not wish him to testify)—the court should review the situation, consider the dangers and detriment to the witness as well as the seriousness of the crime as to which he would testify and the materiality of the information he possesses, and make a decision. In short, the subpoena should be used only where it is necessary, and only where refusal would in fact constitute an assertion of an empty “right.”

Opposition to subpoena power among audience members focused on the issue of whether a subpoena represents the initiation of force by the government. Some objected that the “necessity” theory put forward would justify many types of invasions of rights, including the draft, on the ground that such invasions of rights are “necessary” for government to carry out its proper functions, such as national defense. One member of the audience suggested that a person on whom a subpoena was served should not be forced to comply, but should face certain penalties if he refuses. (A witness who refuses to comply would not be
fined or jailed, but might lose his rights to sue in court for violations of his own rights, or to make use himself of the subpoena power.) This, it was objected, merely provides for another type of punishment, and is not an answer to the question of whether any punishment is proper.

The straw vote on this issue indicated that the audience
favored the subpoena power.

Right to Privacy

Sandy opened discussion on the right to privacy by stating that we must distinguish between the so-called constitutional right to privacy as against the government, and the tort action involving invasions of privacy by private parties. She stated that the panel discussion would be limited to the former notion of the right to privacy, which is generally viewed as having its genesis in an 1890

Harvard Law Review article by Samuel D. Warren and Louis Brandeis. It also has statutory, constitutional and case law foundations. In addition, California, for example, specifically grants its citizens a right to privacy.

Sandy continued by explaining that the constitutional bases for a right to privacy stem from the Fourth, Ninth and Fourteenth Amendments. The Fourth Amendment involves the right to be free from unreasonable searches and seizures, and the Fourteenth Amendment contains the due process clause. The Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Sandy stated that the case law, attempting to carve out such a right “retained by the people,” is relatively young and revolves around privacy in family and sexual matters. Four of the well-known cases on the right to privacy are: (i) Griswold v. Connecticut, the 1965 case in which the United States Supreme Court struck down a law prohibiting the sale of contraceptives; (ii) Loving v. Virginia, the 1967 case where the Court struck down a law criminalizing interracial marriage; (iii) Roe v. Wade, the 1973 case in which the Court legalized abortion under certain circumstances; and (iv) Bowers v. Hardwick, the 1986 case in which the Court let stand a state law that criminalized sodomy.

Although, Sandy said, these cases are pitifully devoid of guiding principles, they do address an area of the law where there is clearly a gap. The restrictive laws brought into question in these cases had the power to dictate how we conduct the most personal aspects of our daily lives. The Supreme Court rested its decisions in those cases upon the right to privacy in the absence of any other existing legal doctrine which would prohibit such intrusions into private life by the government.

Granted, if we lived in an Objectivist society with a proper philosophy of law, Sandy thought there would be no such dilemma for the Supreme Court—no need to invoke a right to privacy per se. As it is, however, she stated, we can use Ayn Rand’s views regarding individual rights to make legitimate the stop-gap “corollary” right to privacy in our current legal setting.

Sandy pointed out that we should not, of course, grant legitimacy to the Supreme Court’s erroneous decision in Hardwick, regardless of the theory of rights employed. But she did not think the decision in the Hardwick case requires us to dismiss the notion of a right to privacy in a legal system which currently has no other basis for striking down laws which intrude into such private areas as family and sex.

Arline agreed that the right to privacy—the idea that the state cannot interfere with private issues in citizens’ lives —sounds good; but, she stated, one has to wonder how in the world we ended up with a decision as horrendous, as frightening, as Hardwick. She thought the reason is that the United States Constitution has been misread and twisted almost from the beginning, and that the notion of a “right to privacy,” one of the consequences of that misreading, is actually a threat to rights.

From very early in constitutional history, Arline said, there has been a failure to recognize several essential points about the Constitution and rights: 1) the Constitution makes no effort to, and does not, in fact, enumerate all rights; it limits government power, not rights. It is not necessary for a person who has been wronged to point to some particular right listed in the Constitution or anywhere else in order for the wrong to be recompensed; and 2) rights are absolute; they cannot be overridden by the wishes or needs of others. The proper view is that a person may do anything he wishes so long as he does not initiate force and violate the rights of others. The consequences of the failure to grasp the true purpose of
the Constitution and the true nature of rights have been a progressive wasting away of rights.

The “right to privacy,” she elaborated, represents nothing more than a feeling on the part of some, particularly liberals, that things have gone a little too far, that certain rights are a little too important to let go. Indeed, the “right to privacy” is formulated just that way in the cases: some rights are just too “fundamental” to violate. This approach is apparent from the nature of privacy cases. What, Arline asked, do abortion or contraceptive use or homosexual
activity have to do with some prissy notion of “privacy”? These cases deal very simply with freedom of action. But if this were admitted, if it were acknowledged that no narrow “slot” need be identified in the Constitution for such rights, that one can do anything so long as nobody else’s rights are violated, it would be difficult to deny businesses, for example, the right to combine, or private employers the right to hire and fire whomever they choose. The “right to privacy” is a misguided attempt to save some shreds of certain rights while retaining a way to eviscerate others.

Thus, Arline thought, it is clear how the Supreme Court ended up with the opinion it issued in Hardwick. Quite simply, the makeup of the Court changed. This Court, a conservative Court, doesn’t think that sexual activity between consenting males is a “fundamental” right. Indeed, the Court commented that it could not be fundamental, since it was contrary to prevailing moral views in America.

What, Arline asked, is the correct view of such “privacy” issues as abortion, sodomy, and so on? Arline suggested that there is really nothing difficult about the central issues in the Supreme Court cases. The proper result was clear in each; there should have been no question as to whether the rights exist.

At the end of this discussion, the panel was adjourned.

A fourth issue, whether convicted criminals have any rights, was scheduled for discussion, but was dropped for lack of time.

Copyright © The Association for Objective Law. All rights reserved. Republished in Capitalism Magazine by permission of TAFOL.

The Association for Objective Law is a non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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