# Taking the Fifth - in real life. **URL:** \ **Category:** Factual Questions\ **Created:** [January 9, 2012, 12:55pm UTC](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920 "2012-01-09T12:55:14Z")\ **Posts on this page:** 5\ **Page:** 2
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [January 11, 2012, 9:24am UTC](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920/21 "2012-01-11T09:24:05Z")
> [@Ken001](#): > > I don’t know US law but under English Commwealth law, evidence given in a criminal court case has absolute privilege. It cannot be used against the witness outside that hearing. > > So if a witness confessed to a crime the police would have to find independent evidence to bring a charge. The confession itself would not be admissable. What counts as independent evidence? Upthread I asked about the case where a witness confessed on the stand to murder and disclosed the location of the murder weapon. If the police then use this information to recover the murder weapon, can it be used in a prosecution of the witness for murder? ---
**Author:** ![Ken001](https://avatars.discourse-cdn.com/v4/letter/k/43a26b/32.png) [@Ken001](https://boards.straightdope.com/u/Ken001)\ **Post date:** [January 11, 2012, 9:46am UTC](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920/22 "2012-01-11T09:46:51Z")
> [@psychonaut](#): > > What counts as independent evidence? Upthread I asked about the case where a witness confessed on the stand to murder and disclosed the location of the murder weapon. If the police then use this information to recover the murder weapon, can it be used in a prosecution of the witness for murder? Honestly I don’t know. I think its only the record of the oral evidence which cannot be used, not information flowing from that oral evidence. Thus a confession is unable to be used but a murder weapon with the witnesses fingerprints on it can be. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 11, 2012, 3:39pm UTC](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920/23 "2012-01-11T15:39:41Z")
> [@Ken001](#): > > Really? What do Americans think a voir dire is? I’ve always found it a little amusing that it translates literally to “[See’n’Say](http://www.fisher-price.com/fp.aspx?st=10&e=sandslanding).” ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [January 12, 2012, 9:09am UTC](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920/24 "2012-01-12T09:09:38Z")
**Northern Piper** ; No, there is generally no such rule here. If you give evidence, it can be used against you is the primary rule. Of course, you can claim privilege against self incrimination, and then don’t have to answer, but that is not the same as a general protection of answers given without a claim of privilege. And if you claim privilege, there is no provision for a judge to grant an immunity (subject to a weird little exception I won’t bore you with). The principle is that immunities are a function of the Crown (which is to say, the A-G), not the courts. Since the Crown calls most witnesses, it knows in advance of the risk of claims of privilege, so gets that sort of thing sorted out by Crown immunities or whatever. In that process, detailed examinations are done to ensure the witness is telling the truth. Judges are in no position to make those determinations. This might seem unfair to the defence (who don’t have the same access to the AG), but in practice it’s not a problem. In fact trying to fix things turned into a problem. In West Aust they briefly tried a system of judicial immunities, as I recall, but rapidly abolished it when someone gamed the system. Bloke charged with a very strong case of murder got a mate to come and safely lie behind a judicial immunity that he had done it; another person confessing was enough to raise a reasonable doubt; murderer got off, and the mate could not be prosecuted. And that was the end of that experiment. I say that in practice lack of defence access to the AG is not a problem because the situation of the defence claiming to have discovered the “real” offender is incredibly rare, and if they have, they can make all the points they want in cross-ex of the police or in other defence evidence. Finally wcalling the nominated"real" offender and have them claim privilege against self-incrimination makes the defence’s point powerfully, yet prevents the Crown from cross-examining. I’m astonished that the point is enshrined in the Charter; it is so fraught with peril and the requirement for fine tuning that it seems an odd detail to descend to. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 12, 2012, 1:52pm UTC](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920/25 "2012-01-12T13:52:20Z")
> [@Typo\_Knig](#): > > I was a juror and the defendant, while on the stand, always had an excuse or explanation or elaboration to her answers to yes-or-no questions raised by the prosecutor. She did not state a conflict between the form of the question and the “whole truth” aspect of her oath. She just was blamestorming, and ended up destroying her own credibility. > > I’m in the US, and this was a state criminal trial. Yes, most people who end up in court have no idea how the system works and imagine they can explain away criminal behaviour with 'good reasons"… and have a mistaken belief in the strength of their own powers of persuasion. Just like your mother knew you’d been in the cookie jar, it’s hard to put the principles in writing but most people who end up on juries can tell when someone is piling up the manure, unless they are really good liars. === So is there no provision in the Canadian Evidence Act for “fruit of the poisoned tree” evidence? Or is that what not using the evidence against you means? Or does it depend on whether the judge thinks using such evidence will bring the administration of justice into disrepute, or whatever the rule is? [Previous page](https://boards.straightdope.com/t/taking-the-fifth-in-real-life/608920.md?page=1)