Does Sorry Incriminate - Evidence, Harm and the Protection of Apology

Abstract

Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the United States have passed “Apology Laws” designed to shield apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy, like “I feel bad about what happened to you.” They do not protect apologies that include expressions of remorse or self-criticism, such as “I should have prevented it.” These laws thereby reinforce a prevailing legal construal of apologies as partial proof of liability. This Article argues that the tendency to interpret apologies as incriminating, a tendency entrenched in evidence law and reinforced by the new state measures, misreads apologetic discourse in a crucial way. Drawing on developments in ethical theory, it argues that full, self-critical apologies do not imply culpability or liability because they are equally appropriate for blameless, non-negligent injurers. Neither the statement nor the act of an apology is probative of liability, and their admission has been premised on a mistake. This Article closes with a proposed means of protecting apologies from evidentiary use, modeled on Rule 409 of the Federal Rules of Evidence.