The Ten Commandments do not prohibit confessions. That was an oversight. But in the U.S. we updated that list by including confessions in the U.S. Constitution. It doesn’t reach the ethics of writing or making confessions, but it has a lot to say about “taking” confessions. “The Fifth Amendment to the U.S. Constitution, as it relates to the taking of confessions, provides that “no person… shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court held that the environment present in the setting of a custodial interrogation was so coercive that confessions obtained from a person under these circumstances were presumed to be coerced unless specific warnings were provided, and a waiver was obtained. This rule was developed primarily to protect the person’s Fifth Amendment privilege against self-incrimination.
According to Miranda, if the warning and waiving procedures are not followed when a person is in custody and subject to interrogation, any statement obtained is inadmissible in the prosecution’s case in chief.
Full Disclosure: I wrote what I think is the seminal book on the Miranda doctrine. It addresses the law, function, circumstances, and addresses some of the ethical issues in taking or writing confessions. This blog is both shorter than the book and broader because it covers more than the criminal consequences of confessing to a crime.
Written confessions take many forms beyond criminal law. The second most popular form of confession occurs as a religious experience. In many religions, a confession acknowledges one’s wrong thoughts and actions. This may occur directly to a god, to fellow people, or to a person acting as a mediator for a god. It is often seen as a required action of repentance and a necessary precursor to penance and atonement. Because there are many gods, there are an untold number of oral confessions made every day. No religion requires confessions in writing. That would likely reduce the number of confessions. And it’s unlikely priests would take the time to deliver your penance in writing. As long it’s oral and therefore debatable, the protocol is simple; You lie. You confess. You do the penance. You go to heaven.
In addition to the Fifth Amendment’s criminal law application to confessions of a crime—felony or misdemeanor—civil law covers some non-criminal confessions. In United States law, confessional privilege is a rule of evidence that forbids the inquiry into the content or even existence of certain communications between clergy and church members. It grows out of the common law and statutory enactments which may vary between jurisdictions. But all fifty states, the District of Columbia, and the federal government have enacted statutory privileges protecting the privacy of some communications between clergymen and parishioners are privileged. And before statutory protections were granted by states and the federal government, common law provided limited protection under the law of evidence. The most often cited civil case is People v. Phillips. It is an 1813 New York case where a catholic priest refused to say on the witness stand what a defendant/penitent told him in a confessional booth in church. The court held the confession inadmissible under a common law known as confessional privilege.”
An 1818 Massachusetts case resolved the issue the other way. The defendant argued that his confession was not admissible in his criminal case because he was a member of a church and confessed to fellow church members in accordance with his church’s discipline. The other members were called to the witness stand. The Court allowed the confession to be repeated in court by his fellow members.
No blog about confessions can be complete without some mention of false confessions. “It’s hard to imagine why an innocent person would confess to a crime they didn’t commit, but research shows that false confessions can take place due to law enforcement’s use of intimidation, force, coercive tactics, isolation during interrogations, deceptive methods that include lying about evidence, and more. An innocent person may also falsely confess because of increased stress, mental exhaustion, promises of lenient sentences, or challenges with understanding their constitutional rights. Children, people with intellectual disabilities, and people with language barriers are left particularly vulnerable due to this lack of comprehension.”
Miranda’s confession was freely, but unknowingly given. He was not told that the Fifth Amendment protected him and that he did not have to give incriminating evidence against himself. Church members often do not know that their confessions in church may not be protected. People who confess their misdeeds to friends and family are not protected by the Fifth Amendment or religious exceptions for priests.
Last, there is often a connection between a simple admission and a confession that can implicate you in either civil or criminal cases. “Admission and Confession are parts of legal proceedings especially in a court of law as they are rules of evidence which plays the most significant part in establishing the claims of the parties concerned. Admission and Confession are basically statements of individuals in which they admit a particular fact which has an important bearing on the subject-matter of a case no matter whether it’s civil or criminal. Though they both are evidence however not all evidence is admissible, thus, only those which are acquired after a due compliance of the legal procedure and relevant to the case, are admitted in the court.”
Now, about the ethics of the thing—are there ethics of confession? Founded in 1976, the Ethics and Public Policy Center is Washington, D.C.’s premier institute working to apply the riches of the Judeo-Christian tradition to contemporary questions of law, culture, and politics, in pursuit of America’s continued civic and cultural renewal.
“We’re approaching the zenith of tax season, but while accountants are poring through returns, legislators in Washington State, Vermont, and Delaware are focused on another so-called ‘loophole’: people’s ability to confess their sins to their priests in confidence. Legislators in these states point to an Associated Press report from last fall urging legislatures to ‘fix the clergy loophole’ by making it illegal for clergy to keep penitential communications private. Though many faiths have practices that fall under the clergy-penitent privilege, debates over the privilege center on the Catholic Church, where priests vow never to repeat what they hear in the confessional. . . The AP report and the bills it has inspired make three fundamental mistakes. First, they incorrectly presume government could coerce clergy into reporting what people confess. Second, they presume—against all evidence—that destroying the clergy-penitent privilege will make children safer. Third, they discriminate against religion by failing to target comparable secular privileges. These flaws make these bills impractical, discriminatory, and unconstitutional.”
So far, no state has enacted a bill to fix the clergy loophole.
Another loophole might be called “I only-cheated-a-little-bit.” Some people feel compelled to make partial confessions to unethical behavior. “Confessions are people’s way of coming clean, sharing unethical acts with others. Although confessions are traditionally viewed as categorical-one either comes clean or not-people often confess to only part of their transgression. Such partial confessions may seem attractive, because they offer an opportunity to relieve one’s guilt without having to own up to the full consequences of the transgression.”
As far as I can tell, no legislature is interested in forcing people who cheat a little to confess so they can be prosecuted or denied the right to cast a vote for candidates known to be ethically challenged.
The ethics of confession are loosely tied to the ethics of autobiography. “Autobiographies have become so pervasive in bookstores that critics and reviewers tell us we live in an age of memoir. We are entranced by confession, drawn to the revelations and disclosures embedded in personal narratives. However, some of this ‘life writing,’ as the critics call it, is so disturbing that it raises compelling moral questions about the telling of private stories—our own and those of others close to us. Our shared sense that the stories of others, inextricably part of our own, represent privileged communications raises the question of whether life writing is always a form of trespass.”
Charles Dickens thought about writing as a form of trespass when he famously said, “Whether I shall turn out to be the hero of my own life, or whether that station will be held by anybody else, these pages must show.”
 384 U.S. 436 (1966).
 1 Southwest L. J., 90.
 Commonwealth v. Drake, 15 Mass. 154, 1818
I am an author and a part-time lawyer with a focus on ethics and professional discipline. I teach creative writing and ethics to law students at Arizona State University. Read my bio.
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