Alibi as a Defense

Printer-friendly versionPrinter-friendly versionPDF versionPDF version
Thursday, December 14th, 2017
Alibi as a Defense

According to Black’s Law Dictionary, alibi is “a defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time” and “the quality, state, or condition of having been elsewhere when an offense was committed.” Black’s Law Dictionary (10th ed. 2014). While not being present is a defense available in both State and Federal Court, the execution of such a defense is dramatically different in the two arenas.

State Court

In State Court, it is a myth that the defense must disclose information surrounding the use of an Alibi defense to the Prosecution. A cursory search of both the Penal Code and Code of Criminal Procedure demonstrates that the word “alibi” rarely comes up. Alibi is neither enumerated as a Defense, Tex. Penal Code § 2.03, nor as an Affirmative Defense, Tex. Penal Code § 2.04. The Code of Criminal Procedure reveals that while § 39.14 requires the defense to disclose expert witnesses and § 46C.051 requires that the defense provide notice of their intent to raise the Insanity Defense, there is no such provision assigning any affirmative defensive duty to provide notice of alibi to the State.

The question arises how to approach jury instructions for alibi. Case law indicates that the defense is not entitled to an instruction. Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App. 1998). “The defensive issue of alibi involves nothing more than the presentation of evidence and argument that a defendant was not present at the scene of the crime to commit the crime.” Id. at 250. Giesberg eliminates any right to such an instruction because “a defense which is not recognized by the Legislature as either a defense or as an affirmative defense does not warrant a separate instruction.” Id. In his dissent, Justice Baird points out that the CCA has seized discretion from the trial court by outright eliminating any right to an alibi instruction. Id. at 252. Giesberg provides a disquieting history lesson: The Court’s interpretation of the lack of legislation defining specific defenses further eroded potential instructions associated with defenses that had been previously available.

Federal Court

The approach to an alibi defense is completely different in the federal system. Rule 12.1 lays out a mandatory framework by which the defense is required to timely provide information to the Government. F.R. Crim. P. 12.1. The requirements include written notice of any intended alibi defense that includes “each specific place where the defendant claims to have been at the time of the alleged offense” and “the name, address, and telephone number of each alibi witness on whom the defendant intends to rely.” F.R. Crim. P. 12.1(a).

While Rule 12.1 requires that the defense notice the Government of the alibi defense, along with requiring the defense to provide witnesses, there is a duty on the Government, once the defense has provided an alibi disclosure, to provide in writing the names and contact information for witnesses that “the government intends to rely on to establish that the defendant was present at the scene of the alleged offense” and “each government rebuttal witness to the defendant’s alibi defense.” F.R. Crim. P. 12.1(b)(1)(A)(i)-(ii).

There is a continued duty to disclose this information as the case moves forward. F.R. Crim. P. 12.1(c). Interestingly enough, as far as alibi disclosures are concerned, the defense can “unring” the bell. In the event that the defense discloses an alibi defense, and subsequently withdraws that notice, “evidence of an intention to rely on an alibi defense” is inadmissible. F.R. Crim. P. 12.1(f).

While alibi is available in both federal and state criminal litigation, lying behind the log with an alibi is only viable in State Court, as disclosure of such a defense is mandatory in Federal Criminal litigation.