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Alibi as a Defense

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Alibi is considered a "factual" defense, as opposed to an "affirmative" defense. In an affirmative defense situation, the accused person acknowledges that the crime was committed and that he or she is the one who committed it ( e.g. "yes, I struck the victim, but I was defending myself" or "yes, I killed the victim, but I was insane at the time the crime was committed"). In an alibi situation, the accused does not necessarily acknowledge that the crime was committed but, if committed, denies that it was done by him. More specifically, the accused asserts that he or she could not have committed an alleged crime because he or she was somewhere else at the time it took place. It is similar to an affirmative defense, however, in that it requires the defense to introduce evidence to support it before the court will give the applicable instruction to the jury.

Alibi cannot be raised at trial unless the state is given advance notice, and provided with a list of all witnesses the defense intends to call in support thereof. An air-tight alibi, backed with credible witnesses, can really create some problems for the state. Once again, the dispute is not over the elements of the crime but whether the defendant could have committed it.

You should also be aware that where the state has charged an accused as a principle to a crime, an alibi defense may not be permitted. Florida's principle statute (777.011) states that, where other criteria are met, the accused can be charged with the crime whether or not he or she was actively or constructively present at the time it was committed.

Understanding Florida Rule of Criminal Procedure 3.200

This rule outlines the requirements for raising an alibi defense:

On the written demand of the prosecuting attorney, specifying as particularly as is known to the prosecuting attorney, the place, date and time of the commission of the crime charged, a defendant in a criminal case who intends to offer evidence of an alibi in defense shall, not less than ten days before trial, or such other time as the court may direct, file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi. The notice shall contain specific information as to the place to which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant, or the defendant's attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi.

Not more than five days after receipt of the defendant's witness list, or any other time as the court may direct, the prosecuting attorney shall file and serve on the defendant the names and addresses of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause.

Both the defendant and the prosecuting attorney shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses who come to the attention of either party subsequent to filing their respective witness lists as provided in this rule.

If a defendant fails to file and serve a copy of the notice as herein required, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except the defendant's own testimony. If the notice is given by a defendant, the court may exclude the testimony of any witness offered by the defendant for the purpose of providing an alibi if the name and address is not stated in the notice.

If the prosecuting attorney fails to file and serve a copy on the defendant of a list of witnesses as herein provided, the court may exclude evidence offered by the state in rebuttal to the defendant's alibi evidence. If notice is given by the prosecuting attorney, the court may exclude the testimony of any witness offered by the prosecuting attorney for the purpose of rebutting the defense of alibi if the name and address of the witness is not stated in the notice.

For good cause shown, the court may waive the requirements of this rule.

Applicable Jury Instructions

Florida standard jury instruction 3.6(i) reads as follows:

An issue in this case is whether the defendant was present when the crime allegedly was committed. If you have a reasonable doubt that the defendant was present at the scene of the alleged crime, it is your duty to find the defendant not guilty.

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A properly raised and well presented alibi defense can create reasonable doubt. If, however, the alibi is an inaccurate recitation of where the defendant was at the time the crime was allegedly committed, a savvy prosecutor can very quickly crush an alibi defense through witness interviews and by subpoenaing tangible evidence (such as surveillance video or credit card statements). An incarcerated defendant, who fails to heed his or her attorney's relentless admonitions not to talk about their case on the phone can very swiftly and effectively sink a potential alibi defense all by themselves.

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