,,,It Is Better to Be Safe When Sorry: Advocating a Federal Rule of Evidence that Excludes Apologies

Abstract

“Tell your brother you are sorry.” There is no great dispute about whether we should teach our children to apologize. As parents, educators, and society we recognize that apologies help heal wounds. They empower the injured parties by acknowledging their hurt and their right not to be victimized in the future. They empower injuring parties to make a repair, to regain their humanness by showing that they understand and regret having been involved in a negative outcome for the injured party. We do not instruct children to engage in a calculated examination of the potential that the injured party contributed to his own harm, or to evaluate whether a child’s behavior in fact violated a rule before apologizing; when someone is affronted or harmed, an apology is in order. Yet in the world of big adult harms we have created a legal system that stifles apologies. Our system allows the admission of apologies in litigation as evidence of fault. Those apologies most likely to be effective at healing wounds are the apologies least likely to be protected and encouraged under the law: apologies that combine self-critical statements with expressions of sympathy. Because our evidentiary system allows only evidence that is actually probative of a legal issue (usually fault) to be admitted, it seems there is a misconception that these full apologies are evidence that could be used to find legal fault. Yet there are many reasons to question this assumption: psychological studies confirm that individuals feel guilt and regret when not at fault; philosophical inquiries affirm the propriety of a self-critical stance for involvement in negative outcomes; and cultural practice confirms that apologies in the absence of blameworthiness are common, well-received, and offered more frequently by some groups than others.