For the Defense - Vol. 7, Issue 1 - 9
The Alibi Gambit
Colin Miller and Kay L. Levine
T
here is a marked difference between saying,
'I was not at the scene of the crime, and
therefore I must have been some other
place,' and saying, 'I could not have been at
the scene of the crime because I was in some
other specified place.' ... The first is a negative
contention. It is not an alibi. The second is an
effort to establish his presence at a particular
time and place, which would make it impossible
for him to have committed the crime. It is an
affirmative contention. It is an alibi.1
Introduction
In
order to convict the accused of a crime, the
prosecution must prove beyond a reasonable doubt the
elements, the lack of justification or excuse, and the
crime's occurrence in the jurisdiction. In addition to these
textbook commandments, the prosecution must also
convince the factfinder of the identity of the perpetrator
beyond a reasonable doubt.2
This " proof of identity " rule sets the stage for the alibi
defense. Alibi is an assertion that the accused could not
be the person responsible for whatever crime occurred,
based on his or her confirmed presence at another location
at the time of the crime. It is thus a direct challenge to
the government's claim about the perpetrator's identity.
Because the alibi defense provides an alternative
substantive narrative about where the accused actually
was during the period in question, it has more persuasive
potential than simply declaring " the government can't
prove it was me. "
In this short essay, we first examine the components
of the alibi defense, paying particular attention to the
importance of the timeline and to the kinds of evidence
factfinders will consider. We then profile a few strategic
issues defense attorneys need to keep in mind: when to
file notice of intention to rely on alibi, why it is important
to locate and interview potential alibi witnesses as soon
as possible, and when to forego reliance on alibi in favor
of other defenses, in light of ineffective assistance of
counsel jurisprudence.
The Foundation of an Alibi Defense
When an accused presents an alibi, he makes three
related assertions about his whereabouts at the time the
crime occurred: (1) he was not at the location where the
crime occurred (location X), (2) he was instead at some
other specific location (location A), and (3) location X
and location A are not the same place.3
The accused
must firmly establish his presence at location A in order
to create reasonable doubt about the prosecution's
proof on the identity element.
To articulate a solid alibi, the accused needs several
Vol. 7, Issue 1 l For The Defense 9
For the Defense - Vol. 7, Issue 1
Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 1
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