Jeffrey Helmreich, ‘Does “Sorry” Incriminate? Evidence, Harm and the Meaning of Apologies’

Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The state measures thereby reinforce a prevailing legal construal of apologies as partial proof of liability. This article argues that the tendency to interpret apologies as incriminating, entrenched in evidence law and reinforced by the new state measures, misreads apologetic discourse in a crucial way. Drawing on developments in ethical theory, I argue 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, each for separate reasons, and that suggests their admission up to now has been premised on a mistake. The paper closes with a proposed means of protecting apologies from evidentiary use – as an alternative to the “Apology Laws” – which is modeled on Rule 409 of the Federal Rules of Evidence.

Helmreich, Jeffrey S., Does ‘Sorry’ Incriminate? Evidence, Harm and the Meaning of Apologies (October 26, 2011). Cornell Journal of Law and Public Policy, Vol. 21, No. 3. 2011; UCLA School of Law Research Paper.

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1 Comment to "Jeffrey Helmreich, ‘Does “Sorry” Incriminate? Evidence, Harm and the Meaning of Apologies’"

  1. 2 November 2011 - 11:36 pm | Permalink

    Australia, some Canadian states and the UK also have apology protecting laws of various sorts. Where -Where they protect ‘full, apologies the US laws tend to be about medical malpractice. Elsewhere the protective laws are more likely to cover the field’of’civilliability. Australia began with two state jurisdictions covering apologiesacknowledging fault.This has now increased to three. British Columbia has the most extensive provision.The question of how effective these are both legally and sociologically I have considered in a series of articles since 2002. It seems likely that in the US where there is greater use of juries in tort law than elsewhere, the protection from admissibility may be the most significsntmatter. But apologies, being mediated through language are s fascinating example’of the complexity of the relationship between law and morality.Even if it is clear that an apology does not lead to liability, there is still the question of whether it matters whether an apology is sincere.

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