Should you even present a defense based on an alibi? There can be significant problems with an alibi defense and you need to consider if htis is the approach you really want to take. Alibi testimony is an important defense for an innocent defense, however some of the exceptional cases say otherwise and may lead to an assured jail sentence. Some accused have attempted to present an alibi defense and found out that that was not the right things to do and there were problems with the alibi defense. Consider the case where the accused had 11 witnesses who established that he was out of town for a two-day sporting event, supported by credit card receipts for his travel, meals, and other purchases on the trip. The prosecutor successfully argued that the witnesses were all liars or mistaken. Post-conviction dockets are littered with defendants who claim their attorney was ineffective because they did not present alibi defenses. Prosecutors focus on attacking family members (who are alibi witnesses) because it takes the attention away from weaknesses in their prosecution case. You better make sure the alibi is solid before using it.
Think about the situation where you are questioned by law enforcement and you present an alibi, but it turns out that you made an honest mistake and confused the dates. Not only will the prosecutor highlight this as a lie and an effort to deflect from the real facts and it also think of the damage when that mistaken alibi doesn’t check out.
Interrogators are sometimes trained to present a completely fictional event, like a car accident, that supposedly happened at the time and place of the alleged crime to see if the suspect will believe the false event and add it to their story.
What about my right to remain silent and not give any information to the police? Think about this situation contained in a Connecticut Supreme Court case (State v Ghere):
“Although we do not believe that an alibi witness has a duty to report an alibi story to the police or, for that matter, to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused…. Failure of the witness to do so would, under [those] circumstances, constitute grounds for impeachment [because the failure to report an alibi under such circumstances is] relevant on the issue of credibility or, more specifically, the issue of fabrication.”
Because an alibi is not a traditional affirmative defense it is a response to the prosecutor’s case. Défense attorneys are advised to exercise extreme caution in choosing alibi witnesses. This advice even applies to friends and family members of the accused. They should be advised to not seek out alibi witnesses. Defense counsel should, however, seek evidence to support the alibi (receipts, video, cellphone records, location tracking information, etc.) and fully document how the evidence was obtained and preserved. A proper and complete investigation should be conducted.
Alibi witnesses need to be fully prepared. Take a look at my next article which addresses some of that preparation strategy.