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251.2 Alibi

    251.2.2 Alibi: Right To Instruction

    251.2.2.1 Alibi: Right To Instruction -- Sample Instructions
    251.2.2.2 Alibi: Should Instruction Be Required Sua Sponte?
    251.2.2.3 Failure To Give Alibi Instruction As Reversible Error
    251.2.2.4 Prosecution's Introduction Of Allegedly False Alibi Evidence Necessitates Alibi Instruction
    251.2.2.5 Alibi: Instruction May Be Predicated On Prosecution Evidence
    251.2.2.6 Alibi Instruction: No Corroboration Required -- Defendant's Testimony Sufficient
    251.2.2.7 Alibi: Only Refuge For Innocent
    251.2.2.8 Alibi: Ineffective Counsel For Failure To Investigate Alibi Defense
    251.2.2.9 Alibi: Ineffective Assistance Of Counsel For Failure To Request Alibi Instruction

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RATIONALE: Without specific instruction on alibi there is a danger the jury will not fully and fairly consider the defense theory and improperly reach its verdict solely on the basis of whether or not the defendant has proven that he or she did not commit the crime.

POINTS AND AUTHORITIES: Some jurisdictions prohibit specific instruction on alibi under the view that an alibi instruction is a comment on the evidence. (See e.g., ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 24-25.05 [Definition Of Defense Of Mistake Of Fact] (West, 4th ed. 2000); PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.19 [Evidence And Guides For Its Consideration-Alibi] (Kansas Judicial Council, 3rd ed. 1999).)  However, "[i]t is well established that, under proper circumstances, the jury must be given an alibi instruction when the defense so requests. [Citations.]" (U.S. v. Burse (2nd Cir. 1976) 531 F2d 1151, 1153.)

    "The reasoning behind this rule is not difficult to appreciate. Jurors are, by definition, untrained in the specifics of the law and, accordingly, must be instructed as to the legal standards they are bound to apply. In those cases where an alibi defense is presented, there exists the danger that the failure to prove that defense will be taken by the jury as a sign of the defendant's guilt." (Ibid., see also 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.03 [Alibi] pp. 94-95, Committee comment (1999).)

    "Even if the alibi evidence is weak, insufficient, inconsistent or of doubtful credibility, the instruction should be given." (U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 495 [internal quotation marks and citations omitted].)  Therefore, when the evidence "raises the defense of an alibi, the jury should be instructed that, in connection with the other evidence in the cause, raises a reasonable doubt as to whether the accused was at the place of the homicide or at a different place, the defendant should be acquitted." (Poe v. State (TN 1963) 370 SW2d 488, 491; see also U.S. v. Hoke (9th Cir. 1980) 610 F2d 678, 679; U.S. v. Ragghianti (9th Cir. 1977) 560 F2d 1376, 1379; State v. Milardo (CT 1993) 618 A2d 1347, 1353-54; 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.02 [Alibi] p. 129 commentary (1991); A Collection of CONNECTICUT SELECTED JURY INSTRUCTIONS - CRIMINAL 2.31, comment [General Jury Instructions] (The Commission on Official Legal Publications - Judicial Branch, 3rd ed. 1996).)

    See also FORECITE National™ 251.2.3.2 [Alibi: Prosecution’s Burden To Disprove].

    See also FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].

    See also FORECITE National™ 251.2.2.3 [Failure To Give Alibi Instruction As Reversible Error].

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

USE NOTE: An alibi instruction may not be appropriate in a case where the crime charged can be committed without proof that the defendant was present, such as in prosecutions where the government seeks a conviction on aiding and abetting or conspiracy. (See U.S. v. Guillette (2nd Cir. 1976) 547 F2d 743, 751-52; U.S. v. Megna (5th Cir. 1971) 450 F2d 511, 512-13; 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.1 comment [Alibi] p. 94 (2000).)

Robinson, Criminal Law Defenses (West, 1984) § 69 [Alibi] pp. 342-45.

Wharton’s Criminal Law (West, 15th Ed. 1993) § 43 [Alibi] pp. 273-296.

Annotation, Propriety And Prejudicial Effect Of Instructions On Credibility Of Alibi Witnesses, 72 ALR3d 617.

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

    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: FORECITE National™.]

    Unless the prosecution has proved beyond a reasonable doubt that the defendant was present at _________________ (briefly describe place where the evidence shows the offense was committed, and state date and time as submitted in the verdict directing instruction), then you must find the defendant not guilty [under Count ____].

[Source: MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 308.06 [Alibi (Only if Requested by the Defendant)] pp. 308-19 (Missouri Supreme Court Publications, 3rd ed. 1987).]

    The defendant relies upon the defense that he was not present at the time and place the alleged offense was committed. If, after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time and place the alleged offense was committed, you shall find him not guilty.

[Source: Bassett v. Commonwealth (VA 1981) 284 SE2d 844, 852.]

    Evidence has been introduced tending to establish an alibi, which amounts to a contention that the defendant was not present at the time when or at the place where he is alleged to have committed the offense charged in the indictment. If, after consideration of all the evidence in the case, you have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed, you must acquit him.

[See generally State v. Ferguson (AK 1971) 488 P2d 1032, 1039.]

    If the defendant was [in] [at] _________________ (state place where it is claimed that the defendant was) at _____________________ (state date and time as submitted in the verdict directing instruction), or if you do not find and believe from the evidence beyond a reasonable doubt that the defendant was present at _________________ (briefly describe place where the evidence shows the offense was committed, and state date and time as submitted in the verdict directing instruction), then you must find the defendant not guilty [under Count ____].

[Source: MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 308.06 [Alibi (Only if Requested by the Defendant)] pp. 308-19 (Missouri Supreme Court Publications, 3rd ed. 1987).]

CAVEAT: This instruction may be interpreted by the jury as shifting the burden of proving the defense to the defendant. (MISSOURI APPROVED INSTRUCTIONS - CRIMINAL, MAI-CR 3d 308.06, Use Note 5 [Alibi (Only if Requested by the Defendant)] pp. 308-22 (Missouri Supreme Court Publications, 3rd ed. 1987).) "However, a defendant may wish to ignore the burden of proof implicit in an affirmative type of submission. He may wish to request this instruction so as to submit in a positive way that he was, say, in Kansas City and not in St. Louis where the crime was committed -- rather than having the jury be told in a negative manner that it cannot convict unless it finds that he was in St. Louis." (Ibid.)

For additional samples see FORECITE National™ 251.2.3.2 [Alibi: Prosecution's Burden To Disprove] and FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"].

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PRACTICE NOTE: While many jurisdictions require that an alibi instruction be requested (see e.g., NORTH CAROLINA PATTERN JURY INSTRUCTIONS - CRIMINAL, NCPI-Crim 301.10 note 1 [Alibi] (TRCC, 1999) [alibi: required if requested by defendant]; People v. Freeman (CA 1978) 22 C3d 434, 437-38 [149 CR 396] [same]), some require the instruction to be given sua sponte. (See e.g. Poe v. State (TN 1963) 370 SW2d 488, 491 [trial judge required to give alibi instruction when fairly raised by the evidence; defendant need not request the instruction].)

    In the Ninth Circuit, failure to give an alibi instruction is normally not error if the defendant did not request such an instruction. (See United States v. Lillard (9th Cir. 2003) 354 F3d 850 [absent a request an alibi instruction. In the absence of a request from the defendant, the omission of an alibi instruction cannot be plain error]; United States v. Loya (9th Cir. 1987) 807 F2d 1483, 1493-94; United States v. Lewis (9th Cir. 1967) 373 F2d 576, 579; Holm v. United States (9th Cir. 1963) 325 F2d 44, 45.)

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: The failure to give an alibi instruction when there is evidence to support an alibi defense deprives the defendant of instruction on theory of his case and has been held to be reversible error. (See U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 495; U.S. v. Zuniga (9th Cir. 1993) 6 F3d 569, 570-71; see also United States v. Lillard (9th Cir. 2003) 354 F3d 850; Riddle v. State (SC 1992) 418 SE2d 308, 310; State v. Robbins (SC 1980) 271 SE2d 319.)

    As one court observed:

    "Instructions serve purposes other than to inform the jury on the law applicable to the case, one such other purpose being to remind the jury of the main factual disputes raised during trial. Moreover, without proper instruction the jury might erroneously believe that the defendant has the burden of proving alibi. [Citations.] For these reasons we join the majority of courts [citations] which hold that where there has been sufficient evidence to raise an issue of alibi, and an alibi instruction has been requested, the failure to so instruct constitutes prejudicial and reversible error. [Citations.]"

(State v. Ferguson (AK 1971) 488 P2d 1032, 1038-39; see also U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 495 [court's refusal to give an alibi instruction constitutes reversible error]; Young v. State (AL 1997) 706 So2d 856, 858 [denial of request for alibi instruction was reversible error in prosecution for first-degree robbery and first-degree assault]; Carlisle v. State (AL 1978) 356 So2d 702, 703 [where defendant presented evidence that he was at a different place at the time of the robbery and that he did not know the robbery was going to be committed, trial court committed reversible error in failing to give requested alibi instruction]; State v. Rodriguez (AZ 1998) 961 P2d 1006, 1011; People v. Nunez (CO 1992) 841 P2d 261, 267 [failure to give alibi instruction in drug prosecution was reversible error]; Henderson v. U.S. (DC 1992) 619 A2d 16, 17 [failure to give alibi instruction in drug prosecution was reversible error]; Robertson v. State (MD 1996) 685 A2d 805, 816 [court's refusal to grant the defendant's request for a specific alibi instruction was reversible error]; but see U.S. v. McCall (6th Cir. 1996) 85 F3d 1193, 1196 [failure to instruct on alibi sua sponte was not plain error].)

    "There have been occasions when the courts have viewed the absence of an alibi instruction as harmless. When such an instruction has not been requested or when the evidence of the defendant's guilt has been overwhelming or when the evidence in support of the alibi defense has been negligible or when the defendant's presence at the scene of the crime has not been an element of the offense which the government was required to prove, the courts have held that failure to provide an alibi instruction does not require reversal." (United States v. Burse (2nd Cir. 1976) 531 F2d 1151, 1153; see also People v. Nunez (CO 1992) 841 P2d 261, 266-67 [list of cases cited].)

    See also FORECITE National™ 251.2.2 [Alibi: Right To Instruction].

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: The prosecution's introduction of evidence concerning the defendant's alibi triggers the need for an instruction on the defense of alibi even when the prosecution presented the evidence just to make light of it. (See U.S. v. Hairston (9th Cir. 1995) 64 F3d 491, 494-95.)

    See also FORECITE National™ 251.2.2.5 [Alibi: Instruction May Be Predicated On Prosecution Evidence].

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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    251.2.2.5    Alibi: Instruction May Be Predicated On Prosecution Evidence

PRACTICE NOTE: See United States v. Webster (8th Cir. 1985) 769 F2d 487, 490 [even though the defendant's mother was a government witness, her testimony was sufficient to warrant an alibi instruction]; United States v. Hairston (9th Cir. 1995) 64 F3d 491, 495 [alibi instruction had to be given even though the sole evidence supporting it was introduced by the Government]; Robertson v. State (MD 1996) 685 A2d 805, 810-11; MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:00 comment [Alibi] (Micpel, 1999).

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: "An alibi instruction is required if the defendant presents evidence which covers the time period when the crime was committed and which puts him at a different location than that of the crime scene. [Citation.] It is not necessary for an alibi defense to be corroborated in order to constitute an alibi. [Citation.]" (Commonwealth v. Poindexter (PA 1994) 646 A2d 1211, 1218.)

    Hence, "[a]lthough an alibi defense is generally presented with accompanying alibi witnesses or other evidence placing the defendant at a place other than the scene of the crime at the time of its commission, the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction. [Citations.]" (Commonwealth v. Pounds (PA 1980) 417 A2d 597, 602; see also State v. Yager (MO 1967) 416 SW2d 170, 175 [in view of defendant's testimony an instruction on the defense of alibi was proper]; People v. Norris (NY 1997) 657 NYS2d 74, 75 [defendant's testimony that he was home at time of robbery was legally sufficient to support alibi defense, and required trial court to instruct jury on alibi defense]; PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 3.11 [Alibi] (Pennsylvania Bar Institute, PBI Press, 09/95) ["although the defense usually involves alibi witnesses or other evidence, the testimony of an accused himself can suffice to raise an alibi defense"].)

    To the extent that an alibi instruction is a defense theory instruction, the evidence should be sufficient for such an instruction whenever, viewing the evidence in the light most favorable to the defendant, there is testimony from which the jury could find a reasonable doubt based on the defense theory. (See FORECITE National™ 250.2 [Evidentiary Requirements For Defense Theory Instruction].)

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: "An alibi may be the only refuge for the innocent." (Hrones & Czar, Criminal Practice Handbook (Lexis, 1995) § 5-17(c), p. 272 [citing Commonwealth v. Bowden (MA 1980) 399 NE2d 482, 489]; see also Rogers v. Carver (1st Cir. 1987) 833 F2d 379, 383; Commonwealth v. Brookins (MA 1993) 603 NE2d 916, 921; Commonwealth v. Larriu (MA 1982) 429 NE2d 1043, 1044; Commonwealth v. McLeod (MA 1975) 326 NE2d 905, 906.)

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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PRACTICE NOTE: Defense counsel has the duty to investigate a potential alibi defense. (See Lord v. Wood (9th Cir. 1999) 184 F3d 1083, 1096, and cases cited therein; Foster v. Ward (10th Cir. 1999) 182 F3d 1177, 1192 (Seymour, C.J., dissenting) ["numerous cases" have held failure to investigate and present testimony from disinterested alibi witnesses is ineffective assistance of counsel]; In re Marquez (CA 1992) 1 C4th 584, 593 [3 CR2d 727].)

    This is so even if the alibi might conflict with another defense. A possible conflict between defenses does not excuse counsel's failure to "investigate the potential strengths of a 'mental defense' vis-à-vis [a lack of participation] defense." [Original emphasis.] (People v. Monzingo (CA 1983) 34 C3d 926, 934 [196 CR 212]; Foster v. Lockhart (8th Cir. 1983) 9 F3d 722, 726 [inconsistency between defense of impotence and alibi did not excuse failure to investigate]; People v. Ledesma (CA 1987) 43 C3d 171, 222 [233 CR 404].)

    As the court in Foster v. Lockhart [(8th Cir. 1983) 9 F3d 722] observed:

    "Reasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories. An attorney must make a reasonable investigation in preparing a case or make a reasonable decision not to conduct a particular investigation. [Citation.] Before an attorney can make a reasonable strategic choice against pursuing a certain line of investigation, the attorney must obtain the facts needed to make the decision. [Citation.] An attorney's 'strategic choices' made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. [Citations.] Although we generally give great deference to an attorney's informed strategic choices, we closely scrutinize an attorney's preparatory activities." [Citations.] (9 F3d at 726.)

    See also FORECITE National™ 251.2.2.9 [Alibi: Ineffective Assistance Of Counsel For Failure To Request Alibi Instruction].

See Capital Punishment Handbook [1.13.2.2 a. Failure To Investigate And Prepare: General Principles And Authorities].

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].

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    251.2.2.9    Alibi: Ineffective Assistance Of Counsel For Failure To Request Alibi Instruction

PRACTICE NOTE:  In Commonwealth v. Mikell (PA 1999) 729 A2d 566, trial counsel was held to be ineffective in failing to request an alibi instruction when the defense to a capital charge was alibi. The defendant was entitled to an instruction explaining that "an alibi defense, either standing alone or together with other evidence, may be sufficient to leave in the minds of the jury a reasonable doubt that might not otherwise exist." (729 A2d at 570.) The court also pointed out that "one of the purposes of an alibi instruction is to ensure that a jury does not interpret the failure to prove the defense as evidence of a defendant's guilt." (Id. at 571; see also Roseboro v. State (SC 1995) 454 SE2d 312, 313 [failure to request alibi instruction was prejudicial ineffective assistance of counsel]; Riddle v. State (SC 1992) 418 SE2d 308, 309 [failure to request alibi instruction was ineffective assistance of counsel].)

    See also FORECITE National™ 251.2.2.8 [Alibi: Ineffective Counsel For Failure To Investigate Alibi Defense].

See generally FORECITE National™ 251.2.4.1 [Alibi: Federal Model Instructions].