The Alibi Defense In New York
An alibi is a defense whereby a defendant claims that at the time of the crime in question he was somewhere other than where the crime charged took place.The prosecution is required to prove beyond a reasonable doubt on all the evidence presented that the defendant was the person who committed the crime in question and therefore was not somewhere else when the crime took place.
The defendant bears no burden of proving an alibi. The prosecutor needs to prove beyond a reasonable doubt that the defendant committed the crime. However, the prosecutor does not need to present other evidence that independently proves that the defendant was not where he claims to have been at the time of the crime.
The identity of alibi witnesses –other than the defendant -is subject to disclosure. The prosecutor has up to twenty days after the arraignment to serve upon the defendant a “Demand for Alibi”. In felony cases, the twenty days begins to run after the arraignment on the indictment. In misdemeanor cases, the twenty days begins to run after the arraignment following the arrest. However, it is common practice for prosecutors to serve a “Demand for Alibi” in all cases at the arraignment following the arrest.
If defense counsel intends to assert an alibi defense at trial, he must serve a “Notice of Alibi” within eight days of the service of the “Demand for Alibi” unless for good cause shown the court extends the time period beyond eight days. The” Notice of Alibi” must state (a) the place or places where the defendant claims to have been at the time of the crime; (b) the name of every alibi witness; (c) the home address of every alibi witness and (d) the place of employment of every alibi witness including its address.
Defense counsel has a duty to promptly supplement the “Notice of Alibi” with the names and address of additional alibi witnesses as they become known. The judge may exclude the alibi testimony of any alibi witness not disclosed in a “Notice of Alibi”. If the court permits an undisclosed alibi witness to testify that the defendant was somewhere other than at the scene of the crime at the time of crime, the prosecutor may ask the court for an adjournment of up to three days to investigate and prepare to cross examine that witness.
Defense counsel should only list in the “Notice of Alibi” those alibi witnesses that he or she truly intends on calling at trial. The prosecutor can seek a missing witness charge for any witness listed in the “Notice of Alibi” not called by the defense at trial. The missing witness charge- under such circumstances -would basically be an instruction from the judge to the jury that they can infer that the missing witness’ testimony would not have been favorable to the defendant’s alibi.
Upon receipt of a “Notice of Alibi” the prosecutor must serve upon the defendant within a reasonable time but no later than ten days before trial a list of rebuttal witnesses the prosecution intends to call at trial to discredit the defendant’s alibi. The rebuttal witness list must set forth: (a) the name of each such witness; (c) the home address of each such witness and (d) the place of employment of each such witness including its address.
The prosecutor has a duty to promptly supplement the “Notice of Alibi” with the names and address of any additional alibi rebuttal witnesses as they become known. A witness who will testify that the defendant was at the crime scene at the time of the crime is not considered to be alibi rebuttal witness. The judge may exclude the rebuttal testimony of any alibi rebuttal witness not disclosed to the defense. If the court permits the undisclosed rebuttal witness to testify, defense counsel may ask the court for an adjournment of up to three days to investigate and prepare to cross examine the rebuttal witness.
Defense counsel should encourage alibi witnesses to contact the police or prosecutor early on in the case. The prosecutor at trial can cross examine an alibi witness on the issue of why they did not come forward sooner to tell the police the defendant could not have committed the crime. The judge can instruct the jury prior to their deliberations that they can consider a witness’ failure to come forward with such information earlier than he or she did only insofar as that failure is inconsistent with his or her alibi testimony at trial and casts doubt upon the truthfulness of that testimony.
Please call me at 1-877-858-2998 if you are ever arrested in New York. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain agreeable to you or take the case to trial.
