An alibi is a possible defense that can be raised by a defendant at trial where he or she asserts they could not have committed the crime because he or she was in another location at the time that the charged offense occurs. For example, the accused might assert that he could not have robbed a gas station in Detroit at 8:00 p.m. on Saturday night because he was at his mother’s house in Ann Arbor eating dinner at that same exact date and time. The defendant’s mother could testify to the jury that her son was with her all night so it would have been impossible for him to commit that robbery. An alibi is distinct from other defenses (e.g. self-defense, insanity) in that the defendant is alleging he or she is actually innocent rather than simply justifying his actions during the charged offense were appropriate. This is a complete defense to criminal charges in Michigan, but the defendant must give timely notice of intent to use this strategy to the prosecuting attorney or else the alibi will be barred.
In a felony case, Michigan law has the following legal requirements to present an alibi defense:
- “If a defendant in a felony case proposes to offer in his defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called in behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.” MCL 768.20(1).
- “Within 10 days after the receipt of the defendant’s notice but not later than 5 days before the trial of the case, or at such other time as the court may direct, the prosecuting attorney shall file and serve upon the defendant a notice of rebuttal which shall contain, as particularly as is known to the prosecuting attorney, the names of the witnesses whom the prosecuting attorney proposes to call in rebuttal to controvert the defendant’s defense at the trial of the case.” MCL 768.20(2).
- “Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective notices as provided in this section. Upon motion with notice to the other party and upon a showing by the moving party that the name of an additional witness was not available when the notice required by [the defendant or the prosecutor] was filed and could not have been available by the exercise of due diligence, the additional witness may be called by the moving party to testify as a witness for the purpose of establishing or rebutting an alibi defense.” MCL 768.20(3).
The failure for either the defendant or the prosecutor to comply with these notice requirements comes with harsh consequences:
- “If the defendant fails to file and serve the written notice prescribed in [MCL 768.20], the court shall exclude evidence offered by the defendant for the purpose of establishing an alibi…[.] If the notice given by the defendant does not state, as particularly as is known to the defendant or the defendant’s attorney, the name of a witness to be called in behalf of the defendant to establish [an alibi defense], the court shall exclude the testimony of a witness which is offered by the defendant for the purpose of establishing that defense.” MCL 768.21(1).
- “If the prosecuting attorney fails to file and serve a notice of rebuttal upon the defendant as provided in [MCL 768.20], the court shall exclude evidence offered by the prosecution in rebuttal to the defendant’s evidence relevant to [an alibi defense]. If the notice given by the prosecuting attorney does not state, as particularly as is known to the prosecuting attorney, the name of a witness to be called in rebuttal of the defense of alibi… , the court shall exclude the testimony of a witness which is offered by the prosecuting attorney for the purpose of rebutting that defense.” MCL 768.21(2).
In addition to complying with the notice requirements, the defendant must ensure that the jury is properly instructed on the alibi defense as follows (M Crim JI 7.4):
- “You have heard evidence that the defendant could not have committed the alleged crime because he or she was somewhere else when the crime was committed.”
- “The prosecutor must prove beyond a reasonable doubt that the defendant was actually there when the alleged crime was committed. The defendant does not have to prove he or she was somewhere else.“
- “If, after carefully considering all the evidence, you have a reasonable doubt about whether the defendant was actually present when the alleged crime was committed, you must find him or her not guilty.”
If the defendant does not follow through on these necessary procedures, then the opportunity to present the alibi defense is lost. Even if the chance is eliminated due to the failures of the criminal defense lawyer, it is the defendant that suffers the consequences. Should a conviction follow from these mistakes, it could take many years in the appeals courts before a finding that defense counsel was ineffective and a new trial could be granted. In the meantime, the accused may be sitting in prison waiting for that second chance.
It is imperative that defense counsel gets the legal procedure for presenting an alibi defense correct the first time. Even more importantly, the accused must disclose his potential alibi and all of the witnesses and evidence supporting it as soon as humanly possible to his attorney. If the lawyer is notified too late, then time might run out on properly defending the case. From the very beginning, you need to get the best legal representation possible in your corner.
If you or a loved one is charged with any criminal offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
