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

By , Attorney (New Mexico School of Law)

An alibi defense is a defense based on information that a defendant was not at the scene of the crime when the crime occurred, that he was somewhere else and could not be the person who committed the crime. The defense can have witnesses testify and present evidence at trial to support an alibi defense.

Examples of an Alibi Defense

If a man named Bill is charged with selling drugs to a minor two blocks from a school, Bill can present evidence that he was at work at a construction site at the time of the sale and, therefore, not the person who committed the crime. Any person who was with Bill or saw Bill at the construction site at the time of the crime can testify to these facts. Witnesses could include Bill's boss, co-workers or the owner of the property – any credible witness who knows Bill was at the site and did not leave around the time of the crime. Bill is not required to testify on his own behalf to raise this defense.

In addition to witnesses, the defense can present video footage or photographs taken at the time of the crime that show Bill at the construction site. If Bill 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.

If Sally is charged with breaking and entering a business at 11:30 p.m. one night, she can present evidence that she was at a party with friends or at a restaurant at that time. Her friends can testify about the party and the defense can present videos or photos of Sally dancing at the party at the time of the break-in. If Sally was at a restaurant, the waitress or other restaurant employees can testify that she was at the restaurant for an hour or whatever length of time she was there.

Strengths and Weaknesses of Alibi Defenses

If an alibi defense is based on witness testimony, the credibility of the witness 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 who is testifying that the defendant was not at the scene of the crime.

The defendant's friends and family members can testify about an alibi but the jury or judge may wonder if these people would lie for the defendant or not want to believe that he could be a criminal. If Bill (the accused drug dealer) was home with his girlfriend, visiting his mother, or out drinking with his friends, these witnesses can testify but there always is a concern that the jury might question their credibility because they are friends or family. This could weaken the alibi defense although it does not mean the defense should abandon it.

A witness who does not know or is not close to the defendant can strengthen an alibi defense. If the waitress at the restaurant had never met Sally before that night, the jury probably will see her as having no reason to lie for Sally and rely on her testimony more comfortably.

Testimony from more than one person about a defendant's alibi also can strengthen an alibi defense. If three co-workers who have known Bill for different lengths of time can testify that he was at the construction site, the defense is stronger than one based on testimony from only one co-worker.

Video footage, photos, swipe card records, and phone or GPS records can be the strongest alibi evidence, because this evidence usually does not depend on a witness being reliable or believable. We tend to think that this type of evidence is more objective – that, for instance, "the camera doesn't lie." However, having this evidence does not automatically mean the prosecutor will dismiss the charges or the defendant will be found not guilty at trial. The prosecutor may question the accuracy of records or the date stamp on a video and try to present evidence or argue that the alibi is not airtight.

An Alibi and Reasonable Doubt

The fact that a defendant presents an alibi defense does not change the requirement that the prosecutor prove guilt beyond a reasonable doubt. The defense also does not have to provide the alibi beyond a reasonable doubt.

If the jury or judge does not believe the alibi defense, the prosecution still must prove all elements of the crime beyond a reasonable doubt. In addition to proving that the defendant was at the scene of the crime, the evidence in the case must prove all other elements of the crime beyond a reasonable doubt – that the defendant actually committed a criminal act. If the jury is not convinced of Bill's alibi, the jury cannot and is not required to stop there and convict Bill. The jury still must consider whether the prosecution has proved that Bill had illegal drugs in his possession and that he exchanged the drugs with the minors for money.

How to Raise an Alibi Defense

Most states require that a defendant inform the prosecution before trial of an alibi defense within a certain time period. If the defense ignores this requirement, the defendant may not be allowed to present the defense at trial.

In any criminal trial proceeding, the defense must provide the prosecution with a list of witnesses who may testify at trial and a list of 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. If the defendant has an alibi, he usually must give the prosecutor separate, additional notice of the defense, explaining where he was at the time of the crime and what witnesses or evidence he will present to support the alibi.

Consult an Attorney

If you are charged with a crime and believe you have an alibi, contact an attorney immediately. An attorney can investigate this potential defense and help you comply with any procedural requirements or deadlines for alibis in the court where you case was filed.

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