Another public personality, shame-faced and sullen, said “I’m sorry” to an angrily silent room, his endorsers and busy cameras this past week. Whether you love him or hate him, believed him or could care less, Tiger Woods broadcast his apology worldwide to his wife, Elin Nordegren, and to you. According to personality and crisis communication experts like W. Timothy Coombs, Ph.D., who recently spoke to Time Magazine about “the apology,” a public apology like his is a good thing because it conveys regret, ownership for the past and a commitment to change future behavior to wife, family, friends and, for you famous wrong-doers, fans. These are “all the key elements of an effective apology,” says Coombs.
Maybe for Tiger Woods.
For you, those words you think are a deserved apology could be a dangerous admission.
The tossed-about phrase with non-lawyers is, “It’s hearsay; it can’t come in.” Wrong. In most jurisdictions, your statements are admissions that the court may admit into evidence against you as substantive evidence (i.e., for the truth of the matter asserted) and to impeach your in-court testimony (i.e., to make you look like a liar).
“Hearsay” is an out-of-court statement or assertive conduct offered into evidence to prove the truth of the matter asserted. Hearsay is inadmissible as substantive evidence unless a hearsay exception applies. Hearsay exceptions include dying declarations, excited utterances, learned treatises, present sense impressions, and tens of others for each jurisdiction. For example, witness John could not testify that “I heard X tell Y that the defendant killed the victim” unless a hearsay exception applied (perhaps X yelled in a fit of excitement). A lawyer in your jurisdiction can explain the exceptions applicable to your case.
Admissions are a party’s out-of-court statements or assertive conduct, and they are non-hearsay if one party offers them against the other party. In other words, defendant husband’s statement is not hearsay if plaintiff wife offers it against him. All jurisdictions characterize these statements as non-hearsay. Therefore, they are not subject to the hearsay rules, and the proponent need not find one of those tens of hearsay exceptions to apply before offering it into evidence. See, e.g., MRE 801(d)(1).
The party may offer the admission into substantive evidence, i.e. to prove the matter asserted. For example, revenge-drive plaintiff wife’s lawyer could admit a tape recording of remorseful defendant husband apologizing for “gambling away our savings” or “taking that trip with my secretary because I didn’t care what you and the kids did at Christmas,” which husband thought wife would appreciate, this sincere apology, to prove that husband gambled the parties to debt or cares more about sex than his children. And all of that to husband’s dismay – all he thought he did was apologize.
There are, as one would expect in the law, always exceptions. For example, admissions are not admissible into substantive evidence if they are made in connection with a criminal case later expunged, plea negotiations, settlement discussions or certain civil infractions. See, e.g., Pizzillo v Pizzillo, 884 SW2d 749 (Tenn Ct App 1994) (memorandum of father’s admissions to child abuse in criminal case could not be admitted into evidence in later divorce case when criminal case record expunged).
More often, however, these out-of-court statements are the common type: e-mails; Facebook messages; YouTube videos; letters; voicemails; confessions at the holiday party. These are ripe for admission into evidence as party-opponent admissions.
Unfortunately, when, like Tiger Woods, spouses face mounting proof and/or wild accusations of an affair, the temptation to speak up is great. What should you say if you want to say, “I’m sorry”? For get the “I’m sorry for sleeping with other women and neglecting you and the children” apology a la Tiger Woods. Try these “friendly” admissions instead:
In Therapy: If your dirty deeds are driving you crazy, talk to a psychologist. In many jurisdictions, your conversations with a psychologist are privileged. The purpose of this privilege is to protect the confidential nature of the relationship between the psychologist and the patient, and only the patient (in our scenario, you) may waive it and permit the psychologist to testify. See, e.g., Jack v Jack, 239 NW2d 231 (Mich Ct App 2000). Not all jurisdictions recognize this privilege, so be sure to discuss your therapy plans with your lawyer first.
In Church: If your moral transgressions are dying for confession, go to church. In most jurisdictions, your conversations with your church leader (whatever the denomination, be he the Pope or the free-wheeling multi-denominational type) are also privileged. The purpose of the clergy-penitent privilege, like the psychologist-patient privilege, is to protect a relationship our society has long treated as confidential (indeed, in this scenario, sacred). So long as you make the confession to the church leader in his or her professional capacity and in accordance with your religion’s discipline, it is protected, and only you may waive it. See, e.g., People v Lipsczinska, 180 NW 617 (Mich 1920). Be sure to discuss your plans, but perhaps not the actual confession, with your lawyer first because not all jurisdictions recognize the privilege for every religion.
In The Child’s Best Interests: If therapy and church just will not do, be sure to keep any confession focused on your children’s best interests. Think about every statement you make and ask yourself, “Would this sound bad in court?” and “How can I make this sound good, yet be sincere?” For example, forget, “I’m sorry I spent the weekend with Shelly and not the kids.” Go with, “I’m sorry I had a momentary lapse in judgment; I am usually so focused on spending the weekend with the kids, as I have repeatedly during our marriage.”
The best practice, however, is to say nothing at all. Lawyers have a crafty way of twisting words, and even the well-intentioned apology could turn into a costly confession in court.
Let the desire for an apology give way to the goal in your case: the best outcome for you and your children. That means forgoing apologies you think are deserved to set yourself on good ground in court, because your spouse’s lawyer will turn them into dangerous admissions.
Remember, you are not Tiger Woods with a public persona and endorsements to salvage – and, if you are, maybe you too should have taken this advice.