What is an alibi?

This post will answer some frequently asked questions on the legal defense of alibi.

What is alibi evidence?

Testimony suggesting that the defendant was not present at the place and time when the offense charged in the complaint is alleged to have occurred is called alibi evidence.

Remember that in legal language, the word “alibi” does not necessarily have a sinister connotation. It simply is a shorthand phrase referring to a very important question in the case:

Did the defendant commit the crime as charged, or was he or she elsewhere at the time and therefore necessarily innocent?

Who has the burden of proving someone was present at the scene of a crime?

The government has the burden of proving beyond a reasonable doubt that the defendant committed the offense charged, which of course includes proving that the defendant was present at the scene of the offense and not somewhere else at the time.

Remember that the defendant has no duty to call witnesses or produce evidence establishing that:

  • He or she was present or not present at the time of the incident in question
  • He or she committed any other element of the offense in question

Note that the language of a charge against a defendant should not suggest that the defendant has some burden to “substantiate” his or her alibi in order to “create” a reasonable doubt.

It is the duty of jurors to decide whether or not they believe alibi evidence presented by a defendant:

  • If jurors believe the alibi evidence, then the Commonwealth has therefore failed to prove the defendant’s guilt beyond a reasonable doubt and the jurors must find the defendant NOT GUILTY.
  • If jurors disbelieve some or all of the alibi evidence that does not necessarily mean the defendant is automatically guilty. Based on all the other evidence of the case in question, the Commonwealth must still prove the defendant’s guilt beyond a reasonable doubt. If the Commonwealth has proved beyond a reasonable doubt that the defendant was present and committed the crime as charged, the defendant should be found GUILTY.

If an alibi witness does not come forward can they be dismissed as a credible witness?

Under common law, a defendant or witness may exercise his or her legal “right to silence”. The “right to silence” is the idea that a person should not be able to incriminate himself or herself simply by saying nothing at all.

However, there are certain circumstances in which an alibi witness’s pretrial silence can constitute grounds for impeachment (i.e. a formal challenge of the credibility of a witness testifying in a trial).

The Commonwealth may impeach a defense witness other than the defendant with his or her pretrial silence only if ALL of the following are proved beyond a reasonable doubt:

  1. The witness knew of the pending charges against the defendant in sufficient detail to realize he or she possessed exculpatory information (i.e. information favorable to the defendant in a criminal trial that exonerates or tends to exonerate the defendant’s guilt)

2. The witness had reason to make such exculpatory information available

3. The witness was familiar with the way to report this exculpatory information to the proper authorities

4. Neither the defendant nor defense counsel asked the witness to refrain from reporting such exculpatory information

Can a judge ever exclude an alibi witness’s testimony if that witness comes forward later?

Under the Sixth Amendment of the US Constitution and Article 12 of the Massachusetts Declaration of Rights, under some circumstances, a judge is permitted to exclude a late-disclosed (i.e. late discovered/included) alibi witness.

If the late-disclosed alibi witness is a previously undisclosed alibi witness, the judge may:

  • Declare a continuance (i.e. a postponement or adjournment) to give the Commonwealth more time to investigate the witness
  • Conduct a voir dire (i.e. a preliminary examination of a witness or juror by a judge or counsel) to determine whether the claimed surprise discovery of the witness was indeed a genuine surprise

In this scenario, it is the duty of the judge to balance the fair and efficient administration of justice against getting all material evidence before the jury.

The exclusion can be warranted on one or two of both of the following grounds:

  • The defense’s explanation suggests “desultory preparation”(i.e. poor/disorganized preparation)
  • The “surprise discovery” was not indeed a surprise but actually an intentional ambush of the prosecution

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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