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251.2 Alibi

    251.2.1 Alibi: Miscellaneous Issues

    251.2.1.1 Improper To Use The Term "Alibi"
    251.2.1.2 When Some Codefendants Rely On Alibi And Others Don’t
    251.2.1.3 Alibi As To One Charge And Not Another
    251.2.1.4 Alibi: Time Of Offense (“On Or About”) Instruction Improper When Defendant Relies On Alibi
    251.2.1.5 Alibi: Prosecution Bound By Date Alleged In Charging Document
    251.2.1.6 Alibi: Defendant Need Not Cover Exact Time Or Every Minute Of Time Involved
    251.2.1.7 Use Of Term “Alibi” By Judge, Lawyers Or Witnesses: Curative Instruction
    251.2.1.8 Alibi Does Not Preclude Instruction On Lesser Included Offenses
    251.2.1.9 Comment On Credibility Of Alibi Witness -- Great Caution Required
    251.2.1.10 Comment On Credibility Of Alibi Witness -- Requirement Of Balanced Instructions
    251.2.1.11 Alibi: Consideration In Light Of All The Evidence
    251.2.1.12 Alibi: Applicability To Conspiracy
    251.2.1.13 Alibi: Sanction For Failure Of Defendant To Give Pre-Trial Notice -- Exclusion Of Evidence Too Onerous
    251.2.1.14 Alibi: Witness Has No Duty to Reveal Alibi To Police Prior To Trial
    251.2.1.15 Alibi: 5th Amendment Violation To Cross-Examine Defendant Regarding Failure To Reveal Alibi To Police
    251.2.1.16 CAVEAT: Alibi May Open Door To Uncharged Crimes Or Acts
    251.2.1.17 Alibi: Improper For Judge Or Prosecutor To Convince Alibi Witness Not To Testify By Informing The Witness That Perjury Charges Could Be Filed
    251.2.1.18 Alibi: Defendant’s Post-Arrest Silence May Not Be Used To Impeach Alibi Witness

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RATIONALE: The term "alibi" has negative or pejorative connotations and, therefore, it should not be included in either the title or body of the instruction given to the jury.

POINTS AND AUTHORITIES: "Omission of the word "alibi" from the jury instructions "is in keeping with the general trend in the circuits." (Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-2, Comment, p. 8-11; see also United States v. Simon, 995 F2d 1236, 1243 n. 11 (3rd Cir. 1993); United States v. Robinson, 602 F2d 760, 762 (6th Cir. 1979).  This is so because "alibi" may have prejudicial connotations to the jury. (See State v. Peetros (NJ 1965) 214 A2d 2, 9 (Francis, J., dissenting); WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 775 [Alibi] comment (University of Wisconsin Law School, 2000); 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.03 [Alibi] (1999); MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:00, comment [Alibi] (Micpel, 1999) [the word "alibi" "may incorrectly suggest that alibi is an affirmative defense"]; MICHIGAN CRIMINAL JURY INSTRUCTIONS 7.4, use note [Lack Of Presence (Alibi)] (ICLE, 2nd ed. 1999) ["The Committee feels that the term 'alibi' has negative connotations and suggests the use of the term 'lack of presence' as an alternative]; OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 8.57 [Defense Of Alibi Requirements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996) [the word "alibi" omitted in order to "make it easier for jurors to understand"]; NEW JERSEY MODEL JURY CHARGES - CRIMINAL II Other Non-2C Charges: Alibi (5/19/97) [Alibi] (New Jersey ICLE 4th ed. 1997); PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.11 [Alibi] (Pennsylvania Bar Institute, PBI Press, 09/95) [alibi instruction omits the term "alibi"].)

    See also NCJIC 251.2.1.7 [Use Of Term "Alibi" By Judge, Lawyers Or Witnesses: Curative Instruction].

CAVEAT: If the word "alibi" is used by the court, it is appropriate to include specific language to the effect that an alibi "is a perfectly legitimate claim in defense of an indictment." (United States v. Alston, 551 F2d 315, 317 (D.C. Cir. 1976); see also Sand, et al., Modern Federal Jury Instructions (Lexis, 2001), Inst. 8-2, Comment, p. 8-12.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.1, 5.4].

See generally, NCJIC 305.1.10 [Alibi].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

    The prosecutor must prove beyond a reasonable doubt that the defendant was present when the alleged crime was committed. The defendant does not have to prove that [he / she] was somewhere else.

    If, after carefully considering all the evidence, you have a reasonable doubt that  the defendant was present when the alleged crime was committed, you must find [him / her] not guilty.

[Source: NCJIC.]

    You have heard evidence that the defendant was not present at the time and place where the offense charged in the indictment is said to have been committed. The government must prove beyond a reasonable doubt the defendant's presence at the time and place of the offense.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.03 [Alibi] (1999).]

    The prosecution has the burden of proving the defendant was present at the time and place the alleged crime was committed. If, after considering all the evidence, you have a reasonable doubt that the defendant was present at the time and place of the alleged crime, you must find the defendant not guilty.

[Source: NCJIC.]

    The prosecution must prove beyond a reasonable doubt each of the following three elements:

    1.    The defendant was present at ____________ (describe place) 

    2.    on ______________ (state date)

    3.    at _______________ (state time).

    If, after considering all the evidence, you have a reasonable doubt that the prosecution has proven any of the above elements, you must find the defendant not guilty.

[Source: NCJIC.]

For additional samples see NCJIC 251.2.3.2 [Alibi: Prosecution's Burden To Disprove] and NCJIC 251.2.2.1 [Alibi: Right To Instruction -- Sample Instructions].

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    251.2.1.2    When Some Codefendants Rely On Alibi And Others Don’t

    See NCJIC 19.3.11 [When Alibi Is Not Raised By All Codefendants In Multi-Defendant Trial].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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RATIONALE: Without special instruction the jury may be confused when the defendant has relied upon alibi as to one count and not as to another.

POINTS AND AUTHORITIES: The jury is required to consider each count separately. (See NCJIC 276.8.2 [Multiple Counts: Special Instructions]; see also NCJIC 276.7.2 [Multiple Defendants: Separate Consideration Of Multiple Defendants].) However, a problem can arise when a defendant is charged with more than one crime and among the charges is one where the theory of culpability does not require physical presence. (See NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 8.1, comment [Alibi] (West, 2nd ed. 1992).) The sample instruction below is intended to deal with that situation.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1, 7.4].

USE NOTE: The alternatives in parenthesis at the end of the Sample Instruction below suggest that a brief statement as to the particulars of the time and place of the crime may be preferable to a general reference to the crime. "Such particulars no doubt ARE preferable if there is any possibility of confusion as to what constitutes physical presence at the crime." (NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 8.1, comment [Alibi] (West, 2nd ed. 1992).)

See generally, NCJIC 305.1.10 [Alibi].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

    The defendant has been charged with _________ (state number) crimes.

    As to Count[s] _________ the defendant is charged as an aider and abettor and, therefore, the prosecution need not prove that the defendant was present at the time of the alleged crime.  

    However, as to Count[s] _________, the defendant is charged as a perpetrator and, as to [this] [these] count[s], the prosecution must prove beyond a reasonable doubt that the defendant personally committed the alleged crime[s].

[Cf. NEBRASKA CRIMINAL JURY INSTRUCTIONS, NJI2d Crim 8.1 [Alibi] (West, 2nd ed. 1992).]

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RATIONALE: When the date of the crime is an issue, it would violate fundamental principles of fairness and due process to instruct the jury that the prosecution need not prove the crime was committed on a precise date.

POINTS AND AUTHORITIES: Many standard pattern instructions include an "on or about" instruction which state that the prosecution need not prove the crime was committed on a precise date.  However, such an "on or about" instruction is improper when the defendant has raised an alibi defense dependant on particular dates. (See e.g., U.S. v. Neuroth (6th Cir. 1987) 809 F2d 339, 340-42; see also People v. Jones (CA 1990) 51 C3d 294, 321-22 [270 CR 611]; People v. Gavin (CA 1971) 21 CA3d 408, 415-20 [98 CR 518].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.1, 6.1].

NOTE: The "on or about" instruction may also be improper if there is a statute of limitations question, or if the date charged is an essential element of the crime and the defendant may have been misled by the date charged in the indictment, or if giving this instruction would constructively amend the indictment. (See e.g., Neuroth, 809 F2d at 340-42; Jones, 51 C3d at 321-2.)

    See also NCJIC Chapter 40 [Variance Between Pleading And Proof].

See generally, NCJIC 305.1.10 [Alibi].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

SAMPLE INSTRUCTION # 1:

    The prosecution is required to prove beyond a reasonable doubt that the alleged crime occurred [at approximately _________ (time) on ______________ (date)] [between __________________ (time) __________ (date) and __________________(time) _______________________ (date)].

    Evidence that the crime occurred at some other time or date is insufficient, as a matter of law, to satisfy the prosecution's burden of proof.

    If, after consideration of all the evidence, you have a reasonable doubt that the crime occurred at the times and dates set forth above, you must give the defendant the benefit of that doubt and return a verdict of not guilty. 

[Source: NCJIC.]

SAMPLE INSTRUCTION # 2:

    The defendant is accused [in Count[s] ______] of having committed the crime of ________________, on or about a period of time between _____________ and _______________.

    To find the defendant guilty, the prosecution must prove beyond a reasonable doubt that the defendant committed [this] [these] crime[s] within the period alleged.

[See generally People v. Jones (CA 1990) 51 C3d 294, 321-22 [270 CR 611]; People v. Gavin (CA 1971) 21 CA3d 408, 415-20 [98 CR 518]; cf. CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.71.5 [When Proof Must Show Specific Act Or Acts Within Time Alleged] (West, 6th Ed. 1996).]

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RATIONALE: The prosecution should not be permitted to allege a different time for the crime after the defense has presented an alibi defense as to the originally alleged time. Hence, it may be appropriate to limit the jury's consideration to the original time.

POINTS AND AUTHORITIES: Where the prosecution has selected a specific time or period of time during which the offense was committed (e.g., under a resident child molester statute such as California Penal Code § 288.5) and the defense has presented alibi evidence for that period of time, the defendant is entitled to an instruction telling the jury "to confine their consideration to the time that the prosecution evidence shows the offense was committed." (People v. Jones (CA 1973) 9 C3d 546, 557 [108 CR 345]; see also People v. Seabourn (CA 1992) 9 CA4th 187, 192-94 [11 CR2d 641]; People v. Brown (CA 1960) 186 CA2d Supp 889, 890-95 [9 CR 53]; People v. Waits (CA 1936) 18 CA2d 20, 21 [62 P2d 1054]; People v. Morris (CA 1906) 3 CA 1, 7-11 [84 P 463].) The failure to require the prosecution to meet its burden of proving the commission of the offense on the specific date alleged in the information violates the defendant's federal constitutional rights to trial by jury and due process. (See U.S. Const., 6th and 14th Amendments; People v. Barney (CA 1983) 143 CA3d 490, 497 [192 CR 172].)

    See also NCJIC 40.2 [Time And Date Of Crime: Variance Between Pleading And Proof].

    See also NCJIC 300.2 [Due Process: Notice].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.1, 6.1].

See generally, NCJIC 305.1.10 [Alibi].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

    The defendant has offered an alibi for the period of time alleged in the information. In light of the defendant's alibi defense, the time the alleged offense was committed becomes material. In determining whether the prosecution has met its burden of proof you must limit your consideration to the time that the prosecution evidence shows the offense was committed. If you have a reasonable doubt that the offense was committed during the period of time alleged in the information, the defendant is entitled to an acquittal.

[Source: NCJIC.]

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PRACTICE NOTE: "Evidence of alibi is not excluded because of defendant’s inability to cover the exact time or every minute of the time involved. That the evidence is somewhat inadequate is not enough to exclude it entirely; the question of its sufficiency to raise a reasonable doubt is for the jury to determine from all the evidence." [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th Ed. 1993) § 43, pp. 278-79.)

    See also NCJIC 251.2.2.6 [Alibi Instruction: No Corroboration Required -- Defendant's Testimony Sufficient].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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RATIONALE: Use of the term "alibi" may have negative or pejorative connotations. Hence, if the term alibi is used by the witnesses or lawyers an explanatory instruction may be appropriate to cure the negative connotations.

POINTS AND AUTHORITIES: See NCJIC 251.2.1.1 [Improper To Use The Term "Alibi"]; see also Logan v. State (WI 1969) 168 NW2d 171, 175; WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 775 [Alibi] comment (University of Wisconsin Law School, 1999).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.1, 5.4].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

    [Counsel] [I] [A witness] used the term "alibi."  It is not meant to be a pejorative term.  It simply refers to evidence that the defendant was somewhere else at the time of the alleged crime[s].

[Cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 775 [Alibi] comment (University of Wisconsin Law School, 1999).]

    The term alibi in law does not have quite the same meaning as in ordinary parlance. It merely means elsewhere. The defendant's claim is that [he] [she] could not have committed the crime because [he] [she] was elsewhere at the time of its commission. There is no duty on the defendant to prove [his] [her] alibi. Rather, the prosecution has the burden of proving beyond a reasonable doubt that the defendant was present and committed the crime. If, after consideration of the evidence in relation to the alibi in connection with all of the other evidence in the case, you have a reasonable doubt as to the guilt of the defendant, you must acquit him.

[Source: Adapted from Ohio v. Walker UNPUBLISHED (OH 1981) 1981 WL 9789, *4.]

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PRACTICE NOTE: See People v. Bryant (MI 1978) 264 NW2d 13, 16.

    See alsoNCJIC 250.2.5 [Right To Instruction On Inconsistent Defenses].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: Any instruction pertaining to the credibility of an alibi defense must be given "with great caution." (State v. Desmarais (RI 1984) 479 A2d 745, 747.) "Although some courts, in sustaining cautionary instructions, have warned that it is a defense which should be carefully scrutinized, other courts have fallen into error by speaking of the defense disparagingly." [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th Ed. 1993) § 43, pp. 280-281; see also U.S. v. Robinson (6th Cir. 1979) 602 F2d 760, 761-62 [improper to instruct that "defense of alibi should be received by jury discretely and cautiously because it is a defense that is easily manufactured or fabricated"]; Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 2:11, pp. 72-73.)

    See also NCJIC  251.2.1.10 [Comment On Credibility Of Alibi Witness -- Requirement Of Balanced Instructions].

Annotation, Propriety And Prejudicial Effect Of Instructions On Credibility Of Alibi Witnesses, 72 ALR3rd 617.

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: It is established that instructions must be balanced as between the defense and prosecution. (See NCJIC 19.2.2 [Due Process Requires That The Instructions Be Balanced Between Codefendants].) If the instructions unfairly favor the prosecution the defendant's federal constitutional right to due process and fair trial by jury may be implicated. (Ibid.) Hence, if an instruction is given which comments on the credibility of a defendant's alibi witness, then similar instructions should be given with respect to the prosecution witnesses. (See e.g., People v. Lee (NY 1985) 488 NYS2d 738, 740 [instruction that testimony of alibi witnesses should be carefully scrutinized not improper, but similar instructions required with respect to prosecution’s identification testimony]; see also People v. Lucas (NY 1980) 427 NYS2d 469 [improper to instruct that alibi evidence had to be "most carefully scrutinized" while not using similar cautionary language with respect to other evidence].)

    See also NCJIC 251.2.1.9 [Comment On Credibility Of Alibi Witness -- Great Caution Required].

RESEARCH NOTES:

Annotation, Propriety And Prejudicial Effect Of Instructions On Credibility Of Alibi Witnesses, 72 ALR3rd 617.

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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RATIONALE: Without special instruction the jury may tend to focus only on the defense evidence specifically admitted on the alibi issue without considering other evidence which may support the alibi theory.

POINTS AND AUTHORITIES: Even if the evidence of alibi is insufficient by itself, if, when considered with all the other evidence in the case, it raises a reasonable doubt, the defendant must be acquitted.  (See People v. Derwin (CA 1926) 78 CA 781, 783 [248 P 1029]; see also Wharton’s Criminal Law (15th Ed. 1993) § 43, pp. 277-78.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.1, 4.5, 7.1].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

    If, after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find the defendant not guilty.

[Source: (9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.1 [Alibi] (2000).]

    If by reason of the evidence in relation to such alibi,* when considered with all the other evidence, the jury has a reasonable doubt as to defendant's guilt, the defendant should be acquitted, even though you may not be able to find that the alibi has been fully proven.

* But see NCJIC 251.2.1.1 [Improper To Use The Term "Alibi"].

[Source: Adapted from Carlisle v. State (AL 1978) 356 So2d 702, 703.]

    If, after consideration of the evidence in relation to the alibi* in connection with all of the other evidence in the case, you have a reasonable doubt as to the guilt of the defendant, it is your duty to acquit him.

* But see NCJIC 251.2.1.1 [Improper To Use The Term "Alibi"].

[Source: Adapted from Ohio v. Walker UNPUBLISHED (OH 1981) 1981 WL 9789, *4.]

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PRACTICE NOTE: Normally alibi is not available as a defense to conspiracy because the presence or absence of all the conspirators at a precise time is not required. However, if the defendant contends he or she was absent when the conspiracy was formed an alibi instruction may be appropriate. (Wharton’s Criminal Law (15th Ed. 1993) § 43, p. 279.)

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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    251.2.1.13    Alibi: Sanction For Failure Of Defendant To Give Pretrial Notice -- Exclusion Of Evidence Too Onerous

PRACTICE NOTE: Federal:  FRCP 12.1 requires, in part, that the defendant upon written demand by the prosecutor, must provide notice to the government of the names, addresses, and telephone numbers of the witnesses upon whom the defendant intends to rely to establish an alibi defense. Although the court has discretion to exclude any witnesses not disclosed pursuant to this rule, it specifically notes that the rules does not limit the defendant’s right to testify. In addition, "[f]or good cause shown, the court may grant an exception to any requirement of Rule 12.1(a)-(c)."

    However, when this requirement is violated, exclusion of the defendant’s alibi evidence, may implicate the defendant's federal constitutional rights (e.g., 6th Amendment right to present witnesses and to fair trial by jury) where less erroneous sanctions could have been imposed which would have limited the prejudice to the prosecution while still permitting the defendant to present the alibi defense. (See ABA Standards of Discovery And Procedure Before Trial [Sanctions] pp. 111-112) (Approved Draft, October, 1970) [sanctions imposed on a defendant for failure to comply with a demand for notice of alibi should avoid limitations upon the evidence which defendant will be allowed to produce at trial]; Taylor v. Illinois (1988) 484 US 400, 417 [108 SCt 646; 98 LEd2d 798]; Escalera v. Coombe (2nd Cir. 1988) 852 F2d 45; U.S. v. Saa (2nd Cir. 1988) 859 F2d 1067, 1072 [exclusion of defense evidence too severe a sanction for discovery violation at issue].)

    The seventh, Eighth and Ninth Circuits all require bad faith as a prerequisite for imposing exclusion as a sanction. (See United States v. Harvey, 117 F3d 1044, 1048 (7th Cir. 1997) [without a violation of any clearly established rule or duty, the drastic sanction of precluding a witness altogether is unwarranted; exclude of defense witness, however, held to be harmless error]; Grooms v. Solem, 923 F2d 88 (8th Cir. 1991) [preclusion sanction for defense’s failure to comply with notice of alibi rules may be constitutionally applies when notice rules are willfully violated with desire to gain tactical advantage]; Eckert v. Tansy, 936 F2d 444 (9th Cir. 1991) [exclusion of alibi testimony for noncompliance with Nevada’s notice of alibi statute did not violated defendant’s Sixth Amendment right to present a defense because failure to give any notice was traceable directly to defendant’s tactical choice to delay notice until he had contacted witness himself].)

NOTE: The exclusion sanction may also apply against the prosecution if they do not reveal their alibi-rebuttal witnesses. (See U.S. v. Myers, 550 F2d 1036, 1043 (5th Cir. 1977).)

State:  "Exclusion of the defendant’s own testimony may not be a proper remedy for failure to comply with...notice requirements. Less drastic measures, such as granting a continuance to the state to allow it to prepare for such testimony, should be explored. [Citations.]" (WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 775 [Alibi] comment p. 2 (University of Wisconsin Law School, 1999); see also Ivory v. State (FL 1998) 718 So2d 233, 234 [failure to provide notice does not authorize a trial court to refuse to instruct on the alibi defense as a sanction]; People v. Merritt (MI 1976) 238 NW2d 31, 38 [exclusion of alibi defense for failure of defendant to comply with alibi notice statute is improper where neither serious abuse of right of defendant to compulsory process for obtaining witnesses in his favor on part of defendant or prejudice to prosecution's case has been demonstrated]; State v. Grant (WA 1974) 519 P2d 261, 263-66 [trial court abused its discretion by refusing to permit defendant to present alibi witnesses on ground of noncompliance with the "notice of alibi" statute where the testimony would be seriously supportive of the asserted alibi and the exclusion would effectively deny the defendant his constitutional right to have witnesses testify on his behalf]; State v. Passino (VT 1994) 640 A2d 547, 550-552; State v. Amaral (RI 1992) 611 A2d 380, 382-84; State v. Ben (OR 1990) 798 P2d 650, 654-55; Houston v. State (MS 1988) 531 So2d 598, 611-12.)

    See also NCJIC 250.1.4 [Constitutional Rights To Due Process, Trial By Jury And Compulsory Process As Grounds For Defense Theory Instruction].

     See also NCJIC 300.6.2 [Right To Present A Defense: Due Process, Compulsory Process And Confrontation].

Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 2:12 [Notice Provisions] pp. 74-84; Wharton’s Criminal Law (15th Ed. 1993) § 43 [Alibi] pp. 294-96.

Exclusion Of Witnesses As Sanction For Alleged Defense Misconduct. Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) pp. 45-2-3.

Annotation, Construction And Application Of Rule 12.1, FRCRP, Requiring, Upon Written Notice, Exchange Of Names Of Witnesses To Be Used To Establish Or Rebut Defendant’s Alibi, 42 ALR Fed 878.

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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    251.2.1.14    Alibi: Witness Has No Duty to Reveal Alibi To Police Prior To Trial

RATIONALE: When the prosecution seeks to impeach a defense alibi witness based on post-arrest failure of the witness to come forward, the jury may not realize that the witness has no duty to come forward. Therefore, an explanatory instruction may be appropriate to avoid the jury's unwarranted conclusion that the alibi was concocted.

POINTS AND AUTHORITIES: Ordinarily, a private party does not have an obligation to come forward and provide information to the police. (See e.g., People v. Conyers II (NY 1981) 420 NE2d 933, 935; see also Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:09 [Defenses -Alibi –Commentary] p. 243 (West, 1999).) Accordingly, when the prosecution argues that a defense alibi witness should not be believed because he or she did not come forward earlier, the jury should understand that there was no obligation on the part of the witness to come forward. (People v. Landor (NY 1983) 459 NYS2d 916, 918 [error to permit the prosecutor to question defendant's brother, an alibi witness, about his failure to reveal to the police that defendant had an alibi without granting request that the jury be advised that the witness had no moral or civic duty to come forward with the information]; but see People v. Gray (MI 2002) 642 NW2d 660 [no particular foundation is necessary for prosecution to cross-examine alibi witness regarding failure to come forward at an earlier time]; People v. Phillips (MI 1996) 552 NW2d 487.)

    See also NCJIC 99.3.11 [Lawful Detention Defined: Citizen Has No Obligation To Cooperate With The Police].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1, 7.1].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

    Witness _______________ (name of alibi witness) was questioned concerning [his] [her] [alleged] failure to come forward earlier and provide the information concerning the defendant's alibi to which [he] [she] testified here in court.

    However, under the law, an alibi witness has no obligation to come forward and provide the police or the District Attorney any information such as that to which [he] [she] testified to here in court. Since there is no such duty imposed by law, you must not consider the [alleged] failure of the witness to come forward earlier as evidence that testimony of the witness is unworthy of belief.

[See generally People v. Conyers II (NY 1981) 420 NE2d 933, 935; cf. CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 7.28 [Impeachment Of Alibi Witness By Pre-Trial Silence] ¶ 1 and 2 (New York Office of Court Administration, 1983).]

    Even though a witness ordinarily has no obligation to come forward and give information to the police, the prosecution contends that the failure of witness _____________ (name of defense witness) to come forward earlier with [his] [her] testimony bears on [his] [her] credibility.  However, before you may even consider this contention you must first make the following special findings:

    1.    Witness ___________ (name of defense witness) was aware that charges were filed against the defendant.

AND

    2.    Witness ___________ (name of defense witness) knew and understood that [he] [she] possessed evidence tending to exonerate the defendant. 

AND

    3.    By virtue of witness _____________'s (name of defense witness) relationship to the defendant, the witness would have been motivated to come forward with the evidence. 

AND

    4.    Witness _____________ (name of defense witness) knew and understood the procedures and process for conveying the evidence to the authorities.

    Unless you have first made all four of these findings, you must entirely disregard any evidence that the witness failed to communicate his information of the law enforcement authorities.

[See generally People v. Landor (NY 1983) 459 NYS2d 916, 918; cf. CRIMINAL JURY INSTRUCTIONS - NEW YORK, CJI 7.28 [Impeachment Of Alibi Witness By Pre-Trial Silence] ¶ 3, 4, 5 and 6 (New York Office of Court Administration, 1983).]

    Ordinarily, a citizen has no obligation to cooperate with the police and the police have no right to interfere with the freedom of a citizen. The circumstances which justify police interference with the freedom of a citizen are set forth in the other instructions you are being given.

[Source: NCJIC.]

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PRACTICE NOTE: Cross-examination of the defendant as to his or her failure to advise police of an alibi may be an infringement upon a defendant's right to remain silent. (See Clark v. State (GA 1976) 230 SE2d 277; see also Vipperman v. State (NV 1976) 547 P2d 682 [district attorney's repeated questioning of defendant with regard to his failure to reveal alibi to police constituted prejudicial error]; State v. Oxier (WV 1985) 338 SE2d 360, 362 [cross-examination of defendant regarding his pretrial silence and comment on such silence to jury was reversible error].)

    See also NCJIC 25.14 [Adoptive Admissions: (Pretrial Silence/Doyle)].

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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CAVEAT: If the defendant relies on a defense of alibi, evidence of his commission of another crime may be admissible to show that he was in the vicinity in question at the time of the charged crime. (Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 4:37, p. 421.)

See generally NCJIC 251.2.4.1 [Alibi: Federal Model Instructions].

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    251.2.1.17   Alibi: Improper For Judge Or Prosecutor To Convince Alibi Witness Not To Testify By Informing The Witness That Perjury Charges Could Be Filed