A Study On Attorney-client Privilege In Criminal Procedure

The attorney-client privilege plays an important role in adversary system. It is a constitutionalized right in criminal case, and indispensable to protect a defendant's right against self-incrimination, right to counsel and right to fair trial. The most popular justification for privilege is based on utilitarian principle, supposing that giving privilege to attorney-client communication would create a degree of social good that outweighs the harm that it would do to the judicial system's fact-finding process. According to utilitarian approach, the use of privilege is a benefit-balancing process, it risks balancing away a criminal's constitutional rights. The privilege should be reconsidered on a non-utilitarian principle.Though attorney-client privilege tends to be eroded, especially in the war against terrorism-related crimes and corporate crimes, the authorities can still respect the prvilege. The attorney-client privilege has rooted in adversarialism culture. The privilege can assure the counsel to defend the criminal zealously.Defense lawyer has a high duty of candor to the court in China's criminal procedure law, thus has no privilege accordingly. High duty entails professional risk on the defense lawyer. Under high duty of candor to the court, the defense lawyer is subject to be suspected of perjury or evidence-concealment crime and etc. To keep pace with the criminal procedure law reform, it is necessary to give the defense counsel the right to keep confidentiality. At the same time, the system regulating eavesdropping and seizure should be established to keep the privilege.