My New Co-Authored Book Chapter, “The Strategic Use of Alibi Defenses” (With Kay Levine)

Kay Levine and I have co-authored a chapter, “The Strategic Use of Alibi Defenses,” which will appear in the book, Alibis and Corroborators: Psychological, Criminological, and Legal Perspectives. We have posted a draft on SSRN. Here is the abstract:

In this chapter we discuss the strategic use of the alibi defense in U.S. criminal courtrooms. While the alibi defense appears to be the holy grail for defendants, in reality it shelters only a relative handful of defendants who face charges in our criminal courts. True alibi evidence is hard to come by, and convincing a jury of its trustworthiness is a further challenge still. Moreover, alibi notice rules in every jurisdiction require the defense to share key facts of the alibi with the prosecutor up front, thereby allowing the prosecutor to re-craft the suggested timeline or to marshal rebuttal evidence to refute the claims of alibi witnesses well before trial.

We first explain the nuts and bolts of how alibis work in criminal cases, paying particular attention to influence of time: the precision with which police and prosecutors articulate the timeline for the alleged crime, the defense attorney’s assessment of the right time to present alibi evidence to law enforcement or the tribunal, the defendant’s ability to positively establish his alternate location at the time the crime allegedly occurred, and the amount of time that passes between the crime and the arrest of the defendant. We next provide a guide to alibi notice rules in federal court as well as in the 50 state jurisdictions in the United States. We examine the history and variety of rules about when notice must be provided, the constitutionality of those rules, and the impact of a defendant changing her mind after previously notifying the court and prosecution of her intention to rely on alibi. In the final section of the chapter, we discuss two specific risks that face defense attorneys who are considering whether to litigate an alibi defense at trial: procuring a false alibi, and failing to present an alibi defense when there is evidence to support it. Throughout the essay we offer evidence from an original survey of practicing and retired defense attorneys about how they investigate and deploy alibi defenses on behalf of their clients.

-CM