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Mark is accused of a Murder committed between 1pm-2pm on March 10th. However, at that time, Mark 100% has an alibi for something else he was doing (which isn't exactly legal). For example

  1. Mark was doing meth in front of his buddy Bob
  2. Mark was beating his wife Wendy

What is Mark supposed to do? Admit to his other crime as an alibi to get him off the hook for what he's accused of? If one admits to other crimes during a trial, will that get added on to the crimes he's being tried for? Or will Mark get acquitted for murder, but immediately be put on trial for the other crime he admitted to? Or what?

My gut tells me that Mark's best course of action is to weigh the consequences for what he's convicted of against what he would be admitting to. Is that right?

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    If Mark was with Bob, and Bob can vouch for him, what has 'doing meth' got to do with it? If he was with Wendy, it is known that a 'co-dependent' partner may not admit to being beaten, so again, what has the crime to with the alibi? Feb 23, 2023 at 19:34
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    @WeatherVane please try to answer the "intent" of the question, not the "letter" of the question. Meth was a random imperfect example. The point is that Mark was doing something else illegal at the time (like another murder, or what have you). And using that as an alibi is tantamount to admitting to another crime.
    – chausies
    Feb 23, 2023 at 19:37
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    Then choose some realistic scenarios, please. You are asking for advice as to what Mark should do. He was 'hanging out' with the alibi. Feb 23, 2023 at 19:38
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    This would be a good time to call for a lawyer. Feb 24, 2023 at 9:02
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    Ideally Mark's should not think about it. It is the prosecution's burden to prove Mark's guilt and if Mark was outside City X then hopefully the case should fail. However, copping to a minor crime in return for a guaranteed not guilty on a major crime seems like a good trade. Mark should consult a lawyer on this one.
    – emory
    Feb 24, 2023 at 19:19

5 Answers 5

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“Anything you say can be used against you in court.”

Is what the police say in the USA.

“You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?” is what they say in New South Wales.

“You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.” is what they say in England and Wales.

And so on.

Whether Mark wants to mention that he was robbing a bank on the far side of town at the time is entirely up to him. If he does, and that can be verified it’s likely the murder charges will be dropped and armed robbery charges will be brought instead.

Note that in many jurisdictions, if the defence intends to use an alibi defence, the prosecution must be told about it at a very early stage or it can’t be used at all.

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    – Dale M
    Feb 24, 2023 at 20:36
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It's less about what you are doing, than who you are doing it with. Because the character of that person, and/or material evidence, is what the court will evaluate.

You can also establish the alibi and then plead the 5th on exactly what you were doing.

"What were you doing with Nick, there on the security camera of the truck dock area?"
"Smoking."
"That doesn't look like cigarettes. What were you smoking?"
"I refuse to answer on the grounds that the answer might tend to incriminate me."
(Jury chuckles)
And that's the end of that.

Let's have some fun, though... "Come now, surely you realize marijuana is legal in this state."
"Not Federally!"
(Judge and attorneys laugh)

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Depending on the jurisdiction, the defendant can proffer information to the Prosecution on an unattributable basis via their solicitor. In this instance, the Prosecution would be told in no uncertain terms that the defendant has a cast-iron alibi but that they don't want to share the information because it could incriminate them in a different crime.

Normally this would be posed as a hypothetical, given in an off-the-record conversation to avoid it being considered a direct confession, or the prosecution could offer limited immunity from prosecution based on the evidence provided.

"Hypothetically speaking, my client could have an alibi that could cause them to be charged with a different crime, but which the confession of would absolutely prove that they weren't at the scene of the murder, and hence blow a hole in the very expensive homicide case you're planning to present to the court. Would that knowledge, hypothetically speaking, be of interest to you?"

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    Note that in the UK this information would typically be part of an informal and unattributable conversation between the CPS and the defendant's solicitor rather than being part of any formal process, since the CPS is largely independent of the police and can't normally direct them to investigate additional crimes
    – Richard
    Feb 25, 2023 at 10:14
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Merely being somewhere isn't usually a crime

All Mark has to prove is that he was somewhere else than the murder scene when it was committed. Proving the presence in a certain place at a certain time often can be done without revealing what exactly was being done in there.

If/when pressed what he was doing there, invoking the 5th will be sufficient and, provided that the proof of being there is itself strong enough, it won't create any negative consequences.

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So Jack was murdered, Mark had an excellent motive but says he committed a bank robbery just at that time. That may be the truth or a lie.

You might get convicted for the robbery because you admitted it. You might get convicted for murder because your alibi isn’t believed and there is a motive and other evidence (innocent people get convicted at times).

I don’t know if you can get convicted twice. Obviously you can’t have done both crimes. But each one could be proven beyond reasonable doubt independently.

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