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

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.

Keywords: Comprehensive Law, Criminal Law, Therapeutic Jurisprudence, TJ, Restorative Justice