Alibi essentially is a claim made by a Defendant that he or she was somewhere else when a crime that he or she was accused of occurred. The Prosecution has the burden of proving beyond a reasonable doubt that the Defendant was actually present when the crime was committed. The Defendant does not have to prove that he or she was somewhere else, however a trial Court will not instruct the jury as to the defense of alibi unless there is some testimony or evidence presented at trial as to that issue.
There are also important notice provisions in Michigan that must be complied with in order to even present an alibi defense at trial. A Defendant who wishes to present an alibi defense at trial must provide notice to the prosecution within 15 days after an arraignment but not less than 10 days before trial of the case, or at such other time as the Court directs pursuant to MCL 768.20. The notice of alibi must include the names of witnesses to be called by the Defense to establish the defense, and also shall include information as to the place at which the accused claims to have been at the time of the allegation. Within 10 days of receipt of the Defendant’s notice of alibi, but no later than 5 days before trial, or at such other time as the Court may direct, the prosecutor shall file a notice of rebuttal of the alibi which includes the names of any witness whom the prosecution may call to rebut the Defendant’s alibi defense. The parties are also required to promptly update the names of any additional witnesses subsequent to the filing of the respective notices. If the parties cannot reach a stipulation to allowing additional witness(es) discovered to testify at trial, the party seeking the additional witness(es) must file a motion with the trial court, giving the opposing side notice of the motion hearing, to allow for the additional witness(es) testimony. The Court must decide if the name of the additional witness(es) was not available when the required notice was filed and could not have been discovered through the exercise of due diligence.
If a party fails to comply with these notice provisions as outlined above, the Court shall exclude the alibi and/or the rebuttal witness(es) pursuant to MCL 768.21. Also, in order for an alibi jury instruction (CJI2d 7.4) to be read to the jury, the Defense must make that request. It is a pretty harsh result against a Defendant if the blame for the untimely filing is with the Defense Lawyer, or if the Defense Lawyer fails to ask for the jury instruction at the appropriate time. These errors may become the subject of a claim for ineffective assistance of counsel if exclusion occurs and the Defendant is convicted. However, the appellate process is a long and costly process which is not likely to stay the imposition of the Court’s jail, prison, or other sentence.
It is also important for the Defense lawyer to interview the prospective alibi witness(es), when possible, in advance of filing the notice of alibi defense. Once the Prosecution receives a notice of alibi, usually the Assistant Prosecutor assigned to the file immediately contacts the detective or officer assigned to the case to have the alibi witness(es) interviewed. The goal of these interviews is to gather information to impeach the alibi witness(es) and the alibi defense at trial. The witness(es) should be made aware of this in advance of receiving a phone call from a police officer or detective with questions about the case so that any questions that the witness(es) elect to answer are honest and complete answers.
When presented correctly, an alibi defense may be the reasonable doubt necessary to gain acquittal. When presented incorrectly, or not presented at all, the absence of the same may become the jury’s reasoning behind a conviction. Preparing for trial is often the most critical aspect of a Defense attorney’s criminal representation, and is often the difference between winning and losing.
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