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251.2 Alibi

    251.2.3 Alibi: Burden Of Proof

    251.2.3.1 Alibi: Should Not Be Referred To As A Defense
    251.2.3.2 Alibi: Prosecution’s Burden To Disprove
    251.2.3.3 Rejection Or Disbelief Of Alibi Evidence: Prosecution Must Still Prove Every Element
    251.2.3.4 Alibi: Rejection Or Disbelief Of Alibi Evidence Is Not Evidence Of Guilt
    251.2.3.5 Alibi: Clarification That Defendant Has No Duty To Call Witnesses Or Produce Evidence
    251.2.3.6 Alibi: Reasonable Doubt Favors Defendant
    251.2.3.7 Alibi: Improper To Frame Issue In Terms Of Which Witnesses To Believe
    251.2.3.8 Alibi: Necessity Of Finding That Crime Was Committed, That The Defendant Participated In It, That Necessary Elements Were Proven, Etc.
    251.2.3.9 Disbelief Of Alibi Evidence: Jury May Only Consider As Consciousness Of Guilt If Prosecution Presents Independent Proof Of Fabrication
    251.2.3.10 Alibi: Grand Jury Should Be Instructed That Defendant Does Not Have The Burden Of Proof

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RATIONALE: By referring to alibi as a defense the judge and attorneys may mislead the jury into assuming that the defendant must prove that he or she wasn't present when the crime was committed.

POINTS AND AUTHORITIES: Standard pattern instructions may refer to alibi as a "defense." (See e.g., Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 5.02 [Alibi] (Lexis, 2nd ed. 1988) ["An alibi is a defense which...."]; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1101 [Defense-Alibi] (Oregon State Bar, 1998 ) ["The defense of alibi has been raised"]; NORTH DAKOTA PATTERN JURY INSTRUCTIONS, NDJI-Criminal 3.05 [Alibi] (State Bar Association of North Dakota, 1999).)

    However, referring to an alibi as a "defense" may improperly shift the burden of proof from the prosecution to the defendant. (See Commonwealth v. McLeod (MA 1975)326 NE2d 905, 906, fn 1; see also Commonwealth v. Bowden (MA 1980) 399 NE2d 482, 488-89 [burden is shifted notwithstanding appropriate general instructions on prosecution’s burden of proof]; Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-17, comment [Alibi Evidence] (Lexis, 2nd ed. 1999).) Accordingly, neither the title nor the body of the instruction should refer to alibi as a "defense." (See People v. Pearson (IL 1960) 169 NE2d 252, 255 [the "alibi" concept is not an affirmative defense]; U.S. v. Carter (10th Cir. 1970) 433 F2d 874, 875; State v. Gabrillo (HI 1994) 877 P2d 891, 894 [alibi is not "affirmative defense"]; Gray v. U.S. (DC App. 1988) 549 A2d 347, 349 [alibi is not an affirmative defense but, rather, denial of fact, which Government must prove as part of case, that defendant was present at scene of crime]; Robertson v. State (MD 1996) 685 A2d 805, 810 [defendant does not bear burden of proof as to alibi]; Rogers v. Carver (1st Cir. 1987) 833 F2d 379, 383; 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.03 [Alibi], Committee comment (1999).)

    See also FORECITE National™ 6.2.12 [Defense Theory That Negates Element Should Not Be Referred To As A "Defense"].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.3].

Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 2:11, p. 71.

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

    Even though alibi* is sometimes referred to as a defense, the defendant has no burden to prove that [he] [she] was elsewhere when the alleged crime was committed. Rather, it is the prosecution's burden to prove that the defendant was not elsewhere [and that [he] [she] committed the alleged crime].

[Cf. Hubbard, JURY INSTRUCTIONS FOR CRIMINAL CASES IN SOUTH CAROLINA: DEFENDANTS REQUESTED INSTRUCTIONS VI(E), Inst. 1 [Alibi] p. 320 (South Carolina CLE, 1994).]

*But see FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"].

    An alibi* is defined as evidence which, if believed, would establish that the defendant was not present at the scene of the alleged crime when it allegedly occurred. If the defendant was not present when the crime was committed [he] [she] cannot be guilty.

    The burden is on the prosecution to prove beyond a reasonable doubt that the defendant was at the scene of the crime when it was [allegedly] committed. If you find from your consideration of all the evidence that the prosecution has failed to prove beyond a reasonable doubt that the defendant was at the scene of the crime when it was [allegedly] committed, you must find the defendant not guilty.

* But see FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"].

[See generally Christian v. State (TN 1977) 555 SW2d 863, 866 [alibi is not to be treated as an affirmative defense, but rather as a type of evidence which the jury shall consider]; cf. TENNESSEE PATTERN INSTRUCTIONS - CRIMINAL, T.P.I.-Crim 42.13 [Alibi] (West, 5th Ed. 2000).]

For additional samples see FORECITE National™ 251.2.3.2 [Alibi: Prosecution’s Burden To Disprove]; FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"]; FORECITE National™ 251.2.2.1 [Alibi: Right To Instruction].

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RATIONALE: Without special instruction the jury may improperly assume that the defendant has the burden of proof as to alibi.

POINTS AND AUTHORITIES: "Because an alibi is not an affirmative defense, a specific alibi instruction eliminates the possibility that the jury will place the burden of proof on the defense with respect to that issue. [Citation.] If such instructions are not given, 'there is a likelihood that the jury will become confused about the burden of persuasion ....' [citation] and thereby assume that the defendant bears the burden of proving his innocence. When warranted by the facts and circumstances of the particular case, alibi instructions reinforce a guiding principle of our criminal jurisprudence that the burden is always with the State to prove beyond a reasonable doubt that the defendant was present at the scene of the crime at the time the State asserts that the crime was committed. Without such instructions, there is an inherent risk that a jury may simply weigh the defendant's alibi claim against the State's evidence and convict on a mere preponderance of the evidence. [Citation.]" (Robertson v. State (MD 1996) 685 A2d 805, 815; see also U.S. v. Burse (2nd Cir. 1976) 531 F2d 1151, 1153 ["there exists the danger that the failure to prove [an alibi] that defense will be taken by the jury as a sign of the defendant's guilt"].)

    Hence, to avoid the danger that the jury will view alibi evidence as a defense which the defendant must to some degree prove, the jury should be reminded that: (1) If they have a reasonable doubt as to whether the defendant was present at the time and place the alleged offense was committed they must acquit; and (2) that the jury should "always bear in mind that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence." (Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-17 [Alibi Evidence] p. 2-51 (Lexis, 2nd ed. 1999); see also People v. Branch (NY 1996) 637 NYS2d 892 [instruction that jurors had to find defendant not guilty if alibi testimony created reasonable doubt in their minds as to whether defendant was person who committed crimes charged was erroneous in that it could be interpreted as shifting to defendant burden of proving that he did not commit crimes charged]; People v. Jones (NY 1990) 561 NYS2d 574 [an alibi charge must unequivocally state that the People bear the burden of disproving an alibi beyond a reasonable doubt].)

    In sum, the alibi instruction "must tell the jurors that the government has the burden of proof and must meet the reasonable doubt standard concerning the defendant’s presence at the relevant time and place." (6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.02 [Alibi], commentary (1991).)

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

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.3].

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

    Evidence has been introduced that the defendant was not present at the time and place of the commission of the crime charged in the indictment. The government has the burden of proving beyond a reasonable doubt the defendant’s presence at that time and place.

    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] p. 94 (2000).]

    The defendant sets up an alibi* in this case, and the burden of proof is not changed when he undertakes to present alibi* evidence. 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 FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"].

[See Carlisle v. State (AL 1978) 356 So2d 702, 703.]

    The defendant has interposed a defense of alibi.* The term alibi* in law does not have quite the accepted meaning in ordinary parlance. It merely means elsewhere. The defendant's claim is that he could not have committed the crime because he was elsewhere at the time of its commission. There is no duty from the defendant to prove his alibi.* Rather, the State 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, it is your duty to acquit him.

* But see FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"].

[See Ohio v. Walker UNPUBLISHED (OH 1981) 1981 WL 9789, *4.]

    It is, of course, the Government’s burden to establish beyond a reasonable doubt each of the essential elements of the offense, including the involvement of the Defendant; and 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 as alleged in the indictment, you must find the Defendant not guilty.

[Source: 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instruction 13 [Alibi] p. 66 (1997); see also U.S. v. Rhodes (5th Cir. 1978) 569 F2d 384, 391.]

    The prosecution has the burden of proving that the defendant was the person who committed the [alleged] crime.  The prosecution has not met this burden if, after considering all the evidence, you have a reasonable doubt that the defendant was present at the time and place the alleged crime was committed.

[See 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instruction 13 [Alibi] p. 66 (1997); see also REVISED ARIZONA JURY INSTRUCTIONS (CRIMINAL), RAJI Inst. 11 [Evidence of Defendant’s Non-Presence] p. 11 (CLE State Bar of Arizona, 1996); U.S. v. Rhodes (5th Cir. 1978) 569 F2d 384, 391.]

For additional samples see FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"]; FORECITE National™ 251.2.2.1 [Alibi: Right To Instruction].

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RATIONALE: If the jury rejects or disbelieves the defense theory of alibi it may consider the case resolved without considering whether the prosecution has proven all the other elements of the offense beyond a reasonable doubt. Therefore, a cautionary instruction may be appropriate so the jury does not improperly assume that the issue of alibi is the only one it needs to consider.

POINTS AND AUTHORITIES: "The fact that the defendant has not established his alibi does not alter the rule that the persuasion-burden of proving defendant’s guilt is upon the prosecutor and does not shift in the course of the trial, nor does it affect the principle that the defendant is entitled to the benefit of the presumption of innocence until his guilt is established beyond a reasonable doubt." [Footnotes omitted.] (Wharton’s Criminal Law (West, 15th Ed. 1993) § 43, pp. 279-80; see also People v. Lucas (NY 1980) 427 NYS2d 469 [instruction may have confused jury as to whether defendant was required to prove truth of alibi beyond a reasonable doubt].) Hence, an instruction which shifts the burden to the defendant regarding proof of an alibi defense violates the due process clause of the 14th Amendment. (Johnson v. Bennett (1968) 393 US 253, 254 [89 SCt 436; 21 LEd2d 415].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.3].

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

    It is, of course, the government’s burden to establish beyond a reasonable doubt each of the essential elements of the offense, including the involvement of the defendant; and 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 as alleged in the indictment, you must find the defendant not guilty.

    Also, even if you find that the defendant was present you must not convict the defendant unless you find that every element of the charged offense was proven beyond a reasonable doubt.

[Source: Adapted from 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 13 [Alibi] p. 66 (1997); see also U.S. v. Rhodes (5th Cir. 1978) 569 F2d 384, 391.]

    The defendant has introduced evidence to show that he was not present at the time and place of the commission of the offense charged in the indictment. The government has the burden of establishing beyond a reasonable doubt the defendant’s presence at the time and place.

    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: Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 6.1 [Alibi] p. 94 (2000).]

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RATIONALE: Because it is the prosecution’s burden to prove the defendant guilty, disbelief of the defendant’s evidence does not create affirmative evidence upon which a finding of guilt may be founded. The risk that that the jury may misunderstand this principle is particularly acute in a case of alibi where the trial may focus upon the question of whether or not the defendant has shown that he or she was not present at the time of the crime. In such a case, the defense should have the right to an instruction on that rejection or disbelief of the alibi defense does not create positive evidence of guilt.

POINTS AND AUTHORITIES: "[T]he fact that the defendant has not established an alibi [does not] alter the rule that the burden of proving defendant’s guilt is upon the prosecutor and does not shift in the course of the trial, nor does it affect the principle that defendant is entitled to the benefit of the presumption of innocence until his guilt is established beyond a reasonable doubt." [Footnotes omitted.] (Wharton’s Criminal Evidence (West, 15th Ed. 1997) § 2:11 [Alibi] pp. 71-72.)

    "[A] correct alibi instruction is necessary because in its absence the jury might assume that the defendant’s failure to prove the alibi is indicative of guilt; such inference would contravene the presumption of innocence and the [prosecution’s] burden of proof beyond a reasonable doubt." (Id. at p. 72, fn. 11; see also U.S. v. Fortes (1st Cir. 1980) 619 F2d 108, 123 ["mere disbelief of [the alibi testimony] is not positive evidence of guilt"...there has to be some "testimony sufficient to persuade you beyond a reasonable doubt of the defendant’s guilt"]; United States v. Burse (2nd Cir.1976) 531 F2d 1151, 1153 [reversible error in federal prosecution to refuse defendant's request for a jury instruction that, even if alibi witnesses are disbelieved, burden of proof remains with the Government]; United States v. Corrigan (10th Cir.1977) 548 F2d 879, 881; State v. Coleman (CT 1988) 544 A2d 194, 202 ["a jury in rejecting such testimony cannot conclude that the opposite is true"]; State v. Alfonso (CT 1985) 490 A2d 75, 81; State v. Mayell (CT 1972) 311 A2d 60, 64 [jury cannot make affirmative finding from disbelief of obviously concocted alibi testimony of defendant]; People v. O'Neill (NY 1981) 437 NYS2d 202, 204 [court erred in failing to tell jury that contrary findings regarding alibi testimony did not automatically authorize a guilty verdict]; Commonwealth v. Weinder (PA 1990) 577 A2d 1364, 1370; State v. Armstrong (WV 1988) 369 SE2d 870, 880-81 [court properly instructed that, with or without an alibi defense, defendant is presumed innocent and State has burden of proving beyond a reasonable doubt the guilt of the defendant].)

    In sum, the trial court errs in failing to tell the jury that a contrary finding regarding the alibi testimony does not automatically authorize a guilty verdict. (See People v. Leasure (NY 1970) 312 NYS2d 563, 564 [error to instruct jury that it could draw an inference of guilt from disbelief of the alibi witness]; see allso Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:09 [Defenses: Alibi--Commentary] pp. 242-43 (West, 1999).)

    See also FORECITE National™ 270.2.6 [Rejection Or Disbelief Of Witness Does Not Satisfy Prosecution’s Burden].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.3].

CAVEAT: Even if a special instruction is given, counsel should consider the inherent risk that an alibi defense will shift the burden to the defendant. "The [alibi] defense can easily backfire, resulting in a conviction because the jury didn’t believe the alibi rather than because the government has satisfied the jury of the defendant’s guilt beyond a reasonable doubt, and it is the trial judge’s responsibility to avoid this possibility." (U.S. v. Robinson (6th Cir. 1979) 602 F2d 760, 762; see also 6TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 6.02, commentary [Alibi] p. 129 (1991).)

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

    Disbelief of the alibi testimony, is not evidence of guilt. There has to be other testimony sufficient to persuade you beyond a reasonable doubt of the defendant’s guilt.

[See U.S. v. Fortes (1st Cir. 1980) 619 F2d 108, 123.]

    Even if the jury should choose to disbelieve alibi evidence, the government retains the burden of proof and must meet the reasonable doubt standard concerning the defendant’s presence at the time and place charged.

[Source: 7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 6.03 [Alibi] p. 95 (1999).]

    If you disbelieve the defendant’s alibi* evidence, such disbelief does not create an inference that the defendant was present when the [alleged] offense was committed.

* But see FORECITE National™ 251.2.1.1 [Improper To Use The Term "Alibi"].

[See OHIO JURY INSTRUCTIONS, VOLUME 4 - CRIMINAL, 4 OJI 411.03 [Alibi] p. 70 (Anderson, 2000).]

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RATIONALE: Without a cautionary instruction the jury may improperly assume that the defendant must produce evidence and witnesses to support the defense theory of alibi.

POINTS AND AUTHORITIES: See Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-17 [Alibi Evidence] p. 2-51 (Lexis, 2nd ed. 1999).

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

    See also FORECITE National™ 251.2.3.5 [Alibi: Clarification That Defendant Has No Duty To Call Witnesses Or Produce Evidence].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3, 4.3].

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

    Because the prosecution has the burden of proof, the defendant has no obligation to call witnesses or produce evidence so as to prove that [he] [she] was not present when the alleged acts were committed. If any evidence produced by the defendant, together will all the other evidence, leaves with a reasonable doubt as to whether the defendant was present when the alleged acts were committed you must find the defendant not guilty.

[Source: FORECITE National™.]

    The defendant contends that [he] [she] was not present [at the time when] [or] ]at the place where] [he] [she] is alleged to have committed the charged offense[s].  After consideration of all the evidence in the case, and juror who has a reasonable doubt that the defendant was present at the time and place the alleged offense was committed, must give [him] [her] the benefit of that doubt and vote to return a verdict of not guilty.

[Cf. Hrones & Homans, MASSACHUSETTS JURY INSTRUCTIONS - CRIMINAL 2-17 [Alibi Evidence] p. 2-53 (Lexis, 2nd ed. 1999).]

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RATIONALE: Because the prosecution has the burden of proving the defendant's presence the defendant should have the right to an instruction that pinpoints the relationship between a defense theory of alibi to the prosecution's burden.

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

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

    If you have reasonable doubt that the defendant was present at the scene of the alleged crime, it is your duty to vote to find the defendant not guilty.

[See generally People v. Jones (NY 1990) 561 NYS2d 574 [an alibi charge must unequivocally state that the People bear the burden of disproving an alibi beyond a reasonable doubt]; cf. FLORIDA STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES 3.04(a) [Affirmative Defenses-Alibi] (Florida Bar, 2000).]

For additional samples see FORECITE National™ 251.2.3.2 [Alibi: Prosecution’s Burden To Disprove].

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PRACTICE NOTE: United States v. Simon (3d Cir.1993) 995 F2d 1236, 1241 held that the following instruction was erroneous because it framed the issue in terms of whether or not to believe the alibi evidence:

    "You must consider all of the evidence in the case. You have heard witnesses presented from the prosecution and you have heard witnesses presented from the defense. You have to decide who you believe and how much of what is said by any witness you believe.

    You have heard witnesses who said that it was the defendant who shot [victim], and you have heard witnesses who said that [the defendant] was in their sight or presence at various times, inconsistent with his allegedly being at the place and at the time where the homicide occurred.

    It is up to you. You have to determine from all of the evidence which you must consider, who you believe and how much of what is said by any witness you credit."

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

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RATIONALE: Merely because the jurors reject the alibi defense and decides beyond a reasonable doubt that the defendant was present, does not mean that they are permitted to convict the defendant. The prosecution is still obligated to prove that all the elements of the crime were committed and that the defendant committed those elements. Therefore, an explanatory instruction in this regard may be appropriate.

POINTS AND AUTHORITIES: Proof of the defendant's presence at the scene of an alleged crime does not fulfill the prosecution's burden of proving guilt. It still must be established that a crime was committed, that defendant participated in it, that his participation was unlawful and that he had the required intent and mental state. (See e.g., FORECITE National™ 251.2.3.3 [Rejection Or Disbelief Of Alibi Evidence: Prosecution Must Still Prove Every Element].)

    See also FORECITE National™ 251.2.3.4 [Alibi: Rejection Or Disbelief Of Alibi Evidence Is Not Evidence Of Guilt].

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

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

    Evidence has been introduced that the defendant was not present when the [alleged] crime was committed.  Consider this evidence along with all other evidence in this case.  If you have a reasonable doubt that the defendant was at the crime scene when the [alleged] crime was committed you must give the defendant the benefit of that doubt and vote to return a verdict of not guilty.

[Cf. MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 5:00 [Alibi] (Micpel, 1999).]

    The Defendant does not have to prove that he was not at the scene of the crime. The burden is on the prosecution to prove that he was actually present and that he actually participated in it.

[See Mazzell v. Evatt (4th Cir. 1996) 88 F3d 263, 268.]

    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.

[See Ohio v. Walker UNPUBLISHED (OH 1981) 1981 WL 9789, *4.]

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PRACTICE NOTE: It is true that a false alibi can be considered as evidence of consciousness of guilt. (See e.g., Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 4:38 [General Instructions: Consciousness Of Guilt--Commentary] p. 177 (West, 1999).) However, before a jury may be instructed that a defendant’s assertion of a false alibi may imply a consciousness of guilt, there must be some evidence of the falsity of the statement independent of that offered to directly prove guilt. (Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 5:09 [Defenses-Alibi–Commentary] (West, 1999) .) Without independent proof of fabrication the burden of proof is impermissibly shifted to the defendant. (See People v. Lawson (NY 1985) 491 NYS2d 197, 201.)

    See also FORECITE National™ 270.2.6 [Rejection Or Disbelief Of Witness Does Not Satisfy Prosecution’s Burden].

    See also FORECITE National™ 34.4.4 [Only Applicable To Collateral Facts Or Incredible Statements].

    See also FORECITE National™ 251.2.3.3 [Rejection Or Disbelief Of Alibi Evidence: Prosecution Must Still Prove Every Element].

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

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    251.2.3.10    Alibi: Grand Jury Should Be Instructed That Defendant Does Not Have The Burden Of Proof

PRACTICE NOTE: See People v. Hughes (NY 1992) 606 NYS2d 499, 503 [once defendant raised alibi defense before grand jury, at minimum, grand jury should have been instructed that defendant did not have burden of proving truth of his alibi and that even if grand jury disbelieved his alibi, no inference of guilt could be drawn from their disbelief].

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

See generally FORECITE National™ 251.2.4 [Alibi: Miscellaneous Instructions].