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April 25, 2013

"Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law"

The title of this post is the title of this article by Michael Jones, which I just saw via SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question.

This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

April 25, 2013 at 11:14 AM | Permalink


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Unfortunately, in our Puritanical society, the only accepted "amends" is serving time in prison. A straightforward apology and restitution are never considered sufficient. we need fundamentally to reconsider our penal model for criminal punishment. I like the "Truth and Reconciliation" commission they had in South Africa, following the end of apartheid. That is a whole different kind of justice.

Posted by: Jim Gormley | Apr 25, 2013 11:25:29 AM

Umm, my understanding at least with the feds is that it is often the first defendant to talk who winds up in the best position when all of the related cases are over. Is my understanding wrong on this? If not it would seem this author is starting from an incorrect enough axiom that I would have to seriously question whether the result then has any meaning.

Posted by: Soronel Haetir | Apr 25, 2013 11:37:49 AM

Jim Gormley --

"Unfortunately, in our Puritanical society, the only accepted "amends" is serving time in prison."

That sentence is just staggering.

First, for a Puritanical society, we certainly do have a high illegitimacy rate, and the amount of violent/pornographic "entertainment" any 11 year-old can find on the Internet is astronomical. Society now is more accepting and/or indulgent (however your care to put it) than at any time in our history.

Second, the massive majority of hurtful or offensive behavior for which an apology might be warranted is not criminal in any fashion. For the small amount that is, a prison sentence is only even sought in a small fraction of the cases (felonies).

Get a grip.

Posted by: Bill Otis | Apr 25, 2013 11:44:22 AM

I'd add that for a Puritanical society we have very few witch burnings and are pro-gender equality in general.

We are also at an all-time low for violence, despite the factors Mr. Otis refers to. See, e.g., Steven Pinker, The Better Angels of Our Nature.

Posted by: John | Apr 25, 2013 12:19:43 PM

We use to have a saying in the business world:

"It takes at least twenty 'atta boys' to negate one 'o sh-t'."

As a society, individuals are really better-off avoiding doing anything positive, for the fear of doing any one thing that may be misconstrued as negative. Therefore, we do nothing but become mindless zombies, and the current status quo remains. This is also why we are dumbing down as a society. Lack of courage to challenge professional idiots.

It is easier to persecute, than to praise. That is the human condition. Politicians and many in LE know this only too well.

Praises get you nowhere in the current legal system, no matter how minor the offense. Or as the shoe slogan should say:

"Just Do Nothing!"

As for Comment 3. obviously the sequester did not stop the supply of straw!

Posted by: albeed | Apr 25, 2013 8:29:41 PM

It would be nice if a defendant could say "I sorry" and that statement would not be used by the prosecution as an admission against the defendant to coerce a plea or use such a statement at trial. It would be comforting to victims to know defendants have genuine regret about their actions as opposed to regret about getting caught.

Posted by: ? | Apr 25, 2013 9:33:32 PM

What will the reaction by the public be when the defendant apologizes, it can't be used at trial, and then the defendant is then acquitted at trial?

How is the prosecutor going to respond to your attorney's protestations of your innocence during plea negotiations if you have already apologized for doing what your attorney now says you didn't do?

Finally, assuming it can't be used in any way against you, why wouldn't the defendant apologize, guilty or innocent, whether they mean it or not...

Posted by: Monty | Apr 25, 2013 11:36:48 PM

2012 UNODC intentional murder rates:

South Africa: 31.8 with reconciliation
United States: 4.8 no reconciliation

Mexico: 22.7 (but no DP)
Dom. Repub.: 25.0 (but no DP)
Puerto Rico: 26.2 (but no DP)
. . .
Jamaica: 52.2 (but no functional DP)
El Salvador: 69.2 (but no functional DP)
Honduras: 91.6 (but no DP)

{www.unodc.org/ {rate per 100,000}

Posted by: Adamakis | Apr 26, 2013 5:06:21 PM

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