Alibi as a Legal Defense

Updated August 26, 2021

In criminal law, an “alibi” is a legal defense strategy whereby defendants present evidence that they could not have committed a crime because they were somewhere else when the crime occurred.

Evidence to support an alibi defense can take the form of eyewitnesses, video surveillance footage, or documents such as credit card receipts, workplace timecards, or hotel reservations.

An alibi defense is recognized as a valid defense in all jurisdictions in the U.S., and if successful, the defense can result in an acquittal of all criminal charges.

Examples of the defense include:

• an accused saying that he could not have committed trespass because he was with his wife at dinner when the offense occurred
• a defendant asserting that he did not rape a woman since he was out of town for work when the alleged crime took place
• challenging a battery charge by showing that a person was at a movie when the victim was hit

In most jurisdictions, defendants have to provide prosecutors with written notice that they intend to present an alibi defense. A failure to do so often precludes the accused from raising the defense.

If a defendant does raise the defense during trial, a prosecutor can try to refute it by:

1. showing that the accused never gave notice of the defense, and/or
2. challenging any evidence (for example, physical evidence or witness testimony) that the defendant presents to support his/her alibi.

Our California criminal defense attorneys will address the following in this article:

• 1. What is the alibi defense in criminal law?
• 2. What are some examples of alibi?
• 3. How might a prosecutor try to refute an alibi defense?
  • 3.1 Defendant did not disclose the defense
  • 3.2 Question witnesses and challenge credibility
• 4. What is the law in California?

An alibi is a defense whereby defendants present evidence that they could not have committed a crime because they were somewhere else when the crime occurred.

1. What is the alibi defense in criminal law?

The legal defense of alibi means that a defendant was not present:

• at the scene of the crime, or
• at the time of the alleged offense.¹

If successful, the defense works to acquit a defendant of a criminal charge.

Note that alibi is distinctive from most other defenses used in criminal law in so far that it is not an affirmative defense.

An affirmative defense, like self-defense or duress, requires a defendant to prove that the defense is applicable to a given charge. An accused must prove this by a “preponderance of the evidence.” This means it is more likely than not that the defendant has a valid defense.

The defense of alibi, though, is not an affirmative defense. A defendant does not have the burden to prove an alibi. An accused merely asserts the defense to raise a reasonable doubt as to whether the defendant could have been the one who committed the crime.²

In order to present a successful alibi, the defendant’s attorney:

1. presents some evidence for the purpose of showing that the defendant was not present at the specific place of a crime and at the time of the crime, and
2. attempts to show that the evidence creates a reasonable doubt as to whether the defendant was present at the time of the crime, thus requiring the defendant be found not guilty of the crime.³

2. What are some examples of alibi?

The following are a few examples of when the alibi defense is and is not successful.

Note that an alibi is more likely to succeed when an accused can corroborate it with other evidence, like:

• alibi witnesses or other defense witnesses,
• photos,
• surveillance video, and/or
• receipts.

Example: Law enforcement charge Daniel for the crime of attempted murder of his business partner, Alan. Prosecution alleges the attempted murder took place on a Saturday afternoon in Chicago, IL.

Daniel is arrested because he matches the description of a man seen fleeing the scene of the crime. Daniel was also seen in numerous heated arguments with Alan about their business.

However, Daniel was at his nephew’s sixth birthday party in a Chicago suburb on the same day, and during the same time period, that the attempted murder allegedly took place. Daniel is able to corroborate this alibi with the testimony of numerous people that saw him at the birthday party, as well as credit card receipts for gas he purchased on the way home.

Daniel’s alibi that he was at his nephew’s birthday party when the crime took place is corroborated by the witnesses and other evidence. This evidence will likely be sufficient to refute the prosecution’s case against him.

Example: Molly and Andrew are charged with criminal conspiracy for plotting a robbery of a local bank. Andrew is stopped by the police on the way to the bank. He is found in possession of a loaded gun, a ski mask, and rope.

Molly attempts to raise an alibi defense to avoid a conviction. She claims that when Andrew was stopped, she was not in the vehicle with him. She claims she was at the grocery store with her grandmother.

She provides the following specific information to support her alibi: receipts from the store; testimony from additional witnesses from the store; and, surveillance video showing her presence at the store at the time at which Andrew was pulled over by the police.

However, Molly is still convicted of the conspiracy charge. The prosecution does not have to prove Molly’s presence at the scene of the crime in order to convict her of a conspiracy charge. The prosecution must show that there was an agreement between Molly and Andrew to commit the robbery and that there was an overt act in furtherance of the crime by either party.

Thus, Molly’s alibi’s evidence that she was elsewhere when Andrew was on his way to rob the bank is irrelevant. She had already made an agreement with him to commit the crime.

Example: Violet is arrested for the crime of burglary, which typically involves a defendant entering a structure with the intent to commit a theft or any felony inside.

The prosecution alleges Violet entered her neighbor’s house at night and stole three valuable paintings from her neighbor’s New York home. Witnesses state that they saw a person leaving the home out of the back window with the paintings on the evening of Wednesday March 21. They then saw the person jump into Violet’s backyard and go into Violet’s home.

Violet has three previous burglary convictions. Witnesses state Violet has discussed stealing the paintings from her neighbor’s home with them.

Violet claims that she was in Miami on a business trip from March 21-March 25. Violet does not have any witnesses to corroborate her alibi that she was in Miami at the time of the burglary. She does, however, disclose as evidence her Miami hotel receipt dated March 21. She also presents surveillance video from the hotel lobby showing her checking into the hotel at 5 pm on March 21.

This evidence will likely exonerate Violet from the burglary charges.

A prosecutor can attempt to challenge an alibi defense by giving the disclaimer that the defendant never gave notice that he/she was going to raise the defense. This is why it is essential to have a capable attorney by your side.

3. How might a prosecutor try to refute an alibi defense?

There are two common ways that a prosecutor can try to refute an alibi defense. These are by the prosecution:

1. showing that the defendant never gave a notice of alibi as a defense, and
2. questioning the accused’s alibi witnesses and questioning their credibility.

3.1. Defendant did not disclose the defense

A prosecutor can attempt to challenge an alibi defense by giving the disclaimer that the defendant never gave notice that he/she was going to raise the defense.

Under the rules of criminal procedure in most jurisdictions, a defendant has to provide the prosecution with written notice that he/she intends to raise alibi as a defense.

The defendant’s notice must include:

• an explanation of the defendant’s presence at the time of the crime, and
• what witnesses (and the addresses of the witnesses) and/or what evidence the accused will present to support the alibi.⁴

If the defendant does not provide this notice, he/she is precluded from raising an alibi defense.

3.2. Question witnesses and challenge credibility

If a defendant presents alibi witnesses, a prosecutor can ask them questions with regards to the alibi. They usually try to elicit answers that cast doubt on the defense.

One common technique in rebuttal of the defense is to ask questions that may undermine a witness’ credibility. For example, a prosecutor might try to show that a witness close to the defendant (for example, a family member) is lying in order to protect the defendant.

If the prosecutor is successful, then a judge or jury will usually not believe that the witness is truthful and will not buy into the defense as a whole.

Prosecutors can also try to challenge any physical evidence that the defendant presents. For example, if an accused presents video in support of an alibi, a prosecutor can try to show that the video does not depict the defendant.

4. What is the law in California?

California criminal law recognizes the alibi defense as a valid defense in a criminal case.⁵

Note that it is not necessary that an accused proves an alibi. Alibi evidence only needs to raise a reasonable doubt that the defendant was not present at the scene of the crime.⁶

Per Penal Code 1054.3 PC, defendants in California criminal actions must provide prosecutors with:

1. the names of any witnesses that they intend to call (including a description of what they intend to testify about), and
2. any real evidence which the defendant intends to offer in evidence at the trial.⁷

For additional help…

Contact us for help.

For additional guidance or to discuss your case with a California criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

Our lawyers also represent clients throughout California State, including those in Los Angeles, Orange County, and San Diego.