united-states criminal-law
Admitting to a different crime as one&#39;s alibi?
<p>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</p>
<ol>
<li>Mark was doing meth in front of his buddy Bob</li>
<li>Mark was beating his wife Wendy</li>
</ol>
<p>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?</p>
<p>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?</p>

<h2>“Anything you say can be used against you in court.”</h2>
<p>Is what the police say in the USA.</p>
<p>“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.</p>
<p>“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.</p>
<p>And so on.</p>
<p>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.</p>
<p>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.</p>

<p>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.</p>
<p>You can also establish the alibi and then plead the 5th on exactly what you were doing.</p>
<p>&quot;What were you doing with Nick, there on the security camera of the truck dock area?&quot;<br />
&quot;Smoking.&quot;<br />
&quot;That doesn't look like cigarettes. What were you smoking?&quot;<br />
&quot;I refuse to answer on the grounds that the answer might tend to incriminate me.&quot;<br />
(Jury chuckles)<br />
And that's the end of that.</p>
<p>Let's have some fun, though...
&quot;Come now, surely you realize marijuana is legal in this state.&quot;<br />
&quot;Not Federally!&quot;<br />
(Judge and attorneys laugh)</p>

<p>Depending on the jurisdiction, the defendant can <em><a href="https://pappalardolaw.com/2021/09/proffer-criminal-negotiation-tactic/" rel="nofollow noreferrer">proffer</a></em> 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.</p>
<p>Normally this would be posed as a hypothetical, given in an <a href="https://www.robertbonsib.com/articles/proffer-letter-agreements-watch-your-step-a-discussion-of-practical-issues-regarding-proffer-letter-agreements-by-robert-c-bonsib-esq/" rel="nofollow noreferrer">off-the-record conversation</a> to avoid it being considered a direct confession, or the prosecution could offer <a href="https://en.wikipedia.org/wiki/Legal_immunity" rel="nofollow noreferrer">limited immunity from prosecution</a> based on the evidence provided.</p>
<p><em>&quot;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?&quot;</em></p>

<h2>Merely being somewhere isn't usually a crime</h2>
<p>All Mark has to prove is that he <em>was</em> 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.</p>
<p>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.</p>
