What Is an Alibi Defense? How Do I Raise it?

Learn what an alibi is, what types of evidence support an alibi, and how a defendant raises an alibi defense.

By , Attorney · New Mexico School of Law
Updated by Rebecca Pirius, Attorney · Mitchell Hamline School of Law
Updated March 19, 2024

To have an alibi means a defendant claims to have been somewhere else when a crime was committed. Having a solid alibi can greatly weaken the prosecution's case and lead to an acquittal.

What Is an Alibi?

In an alibi defense, the defendant alleges to have been somewhere else when the crime was committed. The defense can present evidence and have witnesses testify to support this claim. The defense needs to establish that, at the time the crime was committed, the defendant was somewhere else and couldn't have committed the crime.

An alibi challenges the prosecution's case—it's not a true defense that the defendant must prove (like self-defense). Rather, it asserts the government has the wrong perpetrator. In any criminal case, it's the prosecution's job to convince the jury beyond a reasonable doubt that the defendant committed the crime. A defendant doesn't need to prove their innocence. A successful alibi defense gives the jury reasonable doubt that the defendant committed the crime. Reasonable doubt equals acquittal.

How Does an Alibi Work?

Key to an alibi defense are timing and location. The defendant must provide evidence of their whereabouts during the time the crime was allegedly committed. To do so, the defense might present one or more of the following:

  • testimony from an eyewitness who can attest to seeing the defendant at a specific time and place
  • videos or surveillance footage, along with date and time stamps, showing the defendant in a certain location, or
  • documents or other data that help establish the defendant's whereabouts, such as credit or debit card transactions, hotel or restaurant receipts, GPS or cell phone tracking information, work timecards, photos, social media posts, or train, bus or airplane tickets.

Below are examples of alibi defenses and evidence used to support them.

Alibi Example 1

Suppose Mickey is charged with selling drugs to a minor two blocks from a school. Mickey's alibi is that he was working at a construction site in a different town at the time of the sale and, therefore, was not the person who committed the crime. Mickey can present witness testimony and additional evidence to support his alibi.

Any person who was with or saw Mickey at the construction site at the time of the crime can testify to these facts. Alibi witnesses could include Mickey's boss, co-workers, or the owners of the property—basically, any credible witness who knows Mickey and knows he was at the site and did not leave around the time of the crime.

In addition to witnesses, the defense can present video footage or photographs taken at the time of the crime that show Mickey at the construction site. If Mickey worked in an area where he had to swipe an ID or key card to enter, the records of the card swipes can support his alibi defense.

Alibi Example 2

Kelly is charged with breaking and entering a business at 11:30 p.m. one night. Kelly's alibi is that he was at a dance club with friends that night from 11 p.m. until 1 a.m. His friends can testify about the evening and the defense can present videos or photos of Kelly dancing at the time of the break-in.

Kelly might also see if any employees remember serving Kelly at the bar or seeing him in the club. He could bolster his defense by providing his Uber receipts showing when he arrived and left the club, credit card transactions showing bar purchases, and his cellphone location tracking.

Strengths and Weaknesses of an Alibi

A defendant's alibi defense is only as strong as the evidence supporting it. The prosecutor will have the opportunity to cross-examine witnesses and challenge the accuracy of records, try to prove tampering, or otherwise discredit the evidence.

Alibi Witnesses

If an alibi defense is based on witness testimony, the witness's credibility can strengthen or weaken the defense dramatically. The jury or the judge deciding whether the defendant is guilty needs to believe and trust the witness.

The best witnesses are generally disinterested parties, meaning someone who has no interest in the outcome of the case. For instance, a restaurant server or taxi driver who saw the defendant likely has no reason to lie to protect the defendant. Witnesses who are close friends or family of the defendant, on the other hand, might raise suspicions with the jurors as to whether they can be trusted. While this could weaken the alibi, it doesn't necessarily mean the defense should abandon it.

Other Alibi Evidence

Having additional evidence to corroborate witness testimony can strengthen the defense's alibi. For instance, video footage, photos, swipe card records, or phone or GPS records that place the defendant away from the crime scene at a specific time are useful pieces of evidence. Documents, like airline and train tickets, can be very persuasive, especially if the defendant had to present identification or go through security.

A paper trail (such as gas, restaurant, or hotel receipts) can also be used to support other evidence. However, because paper receipts and records can be easily faked or manipulated, they won't likely be effective if they're the only alibi evidence.

How Do I Raise an Alibi Defense?

In any criminal trial proceeding, the defense must provide the prosecution with a list of witnesses who may testify at trial and a list or copies of physical evidence the defense may present. The prosecution is entitled to interview the defense witnesses before trial and inspect the physical evidence if a copy cannot be provided. (This is known as the discovery process.)

Most jurisdictions require a defendant who claims to have an alibi to give the prosecutor special notice regarding this defense. The notice must explain where the defendant claims to be, for what period of time, and what witnesses or evidence will be presented to support this alibi. Notice allows the prosecutor to thoroughly investigate these claims, which could be fabricated. For instance, a prosecutor might hire a digital forensic expert to review video footage and see if it's been altered.

Not providing sufficient notice to the prosecutor of an alibi defense can forfeit the defense altogether. The judge decides what evidence is relevant and timely and can exclude evidence if proper procedures aren't followed.

Consult an Attorney

If you're charged with a crime and believe you have an alibi, talk to a criminal defense attorney. An attorney can investigate this potential defense and help you comply with any procedural requirements or deadlines. You'll want to discuss the pros and cons of presenting an alibi defense with your lawyer. Having a weak alibi might make the jury distrustful of you. An alibi also weds you to a set story and timeline.

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