by
Jill Paperno
Second Assistant Monroe County Publiv Defender

Every now and then, we as defense attorneys are confronted with the possibility, and perhaps the necessity, of introducing evidence of alibi (at the time of the commission of the crime charged the defendant was at some place or places other than the scene of the crime). For most of us, our initial inclination is to run for cover. But in that rare case where alibi is the defense of choice, defense counsel has to know the law, investigate and prepare well. (Wait- isn’t that what we’re supposed to do in all cases?)

FIRST – WHAT TO DO WHEN THE INFORMATION IS PRESENTED TO YOU

If you are informed by your client or other people – perhaps family members or friends – that your client could not have been present at the time of the incident because he or she was some other place, think like a cop or prosecutor – what are the holes in the story? Are there things that don’t make sense? Can you prove the alibi?

In this age of technology, you may be able to prove an alibi with documents generated as a result of purchases, travel or even internet usage. (Uh-oh – make sure you are not generating other charges.) Or you may be able to obtain video recordings from cameras monitoring businesses or even street corners. For much of this kind of proof, time is of the essence. So if you learn of a possible alibi, get an investigator and get moving. Begin to accumulate any evidence there may be – receipts, travel documents, etc. When you acquire the documents, make sure you preserve them in a way that you can retrieve them later for trial, and establish a chain of custody.

TO TELL OR NOT TO TELL?

Do you let the prosecutor know of your alibi early in the case before it is statutorily required? It depends on the quality of the alibi, the prosecutor, and the policies of the prosecutor’s office. Although CPL 250.20 requires notice to the prosecutor within eight days of the receipt of a prosecutor’s demand for notice of alibi (and this will be discussed further below), what do you do if you know you have an alibi before indictment? The 250.20 requirement does not come into play until there is an indictment. So you have to judge whether you are likely to head off the moving train by presenting the information to the prosecutor, or if you will just be giving away your defense before you have your witnesses prepared to deal with prosecutor witnesses.
In a case I recently handled, I presented the information to the prosecutor within three days of the arraignment of my client in City Court on a felony complaint. Unfortunately, that meant nothing in terms of getting the prosecution to question the quality of the proof in the case.

GRAND JURY?

Although you may choose to request that the alibi witnesses be heard by the grand jury, consider this option carefully. If the prosecutor is unlikely to seek dismissal based on an alibi, will that influence how the grand jury hears the witnesses? Will presentation of the witnesses create inconsistencies for use by the prosecutor later in the case, even if the witnesses are telling the truth?

250.20 AND THE STATUTORY PERIOD

You are required to serve notice after indictment, within eight days of when you receive a request for notice from the prosecution. Take a look at the 710.30 notice that comes attached to indictments – at least in Monroe County- even when there are no statements or ID witnesses. Guess what – there’s a request for notice of alibi! So it is likely that you are going to receive the request, at least on a felony charge, at the arraignment on the felony.

But what if you do not know whether you have an alibi defense at that stage – perhaps you are still investigating, or perhaps you do not learn of it until later in the case? The statute provides a court with discretion to extend the period for alibi notice. I will sometimes advise a court that I am exploring a defense and ask for an extension of time. (But rarely, since it’s rare that I would consider such a defense.)

In People v. Mensche, 276 AD2d 834, the Fourth Department stated:

Although the trial court has the discretion to extend the period in which the defendant must file and serve his notice of alibi, an application for such an extension may be denied where the defendant does not appropriately demonstrate good cause for the delay ( see, People v. Fax, 232 A.D.2d 734, 736, 665 N.Y.S.2d 684, lv. denied 89 N.Y.2d 942, 655 N.Y.S.2d 893, 678 N.E.2d 506; People v. Davis, 193 A.D.2d 885, 886-887, 597 N.Y.S.2d 780, lv. denied 82 N.Y.2d 716, 602 N.Y.S.2d 813, 622 N.E.2d 314). Although the late entry of defense counsel into the case may provide the required reasonable excuse for delay in service of the notice of alibi ( see, People v. Davis, supra ), here, the tardiness of the notice of alibi prejudiced the People's ability to adequately investigate defendant's claims prior to trial. Further, the tardiness of the service of the notice of alibi was not cured when defendant renewed his application to present the alibi witnesses based upon his contention that the People had, in fact, interviewed those witnesses, since County Court properly found the notice facially inadequate because it failed to advise the People of the places at which defendant claimed to be at the time of the commission of the crimes, hampering the People's opportunity to thoroughly investigate defendant's claim. Accordingly, County Court's denial of defendant's application to present alibi witnesses was not an abuse of discretion.


If the prosecutor somehow does not serve you with a request pursuant to CPL 250.20(1), it seems there is no obligation to notify. But I’ve never had a felony case without a request, and I’m not sure of how confident I would be that a trial judge would find the lack of request precluded an obligation on my part. Tricky question.


If you fail to serve the notice within the statutory period, argue to the Court that your client has a right to present a defense as protected by the New York State and United States Constitutions, as well as rights to due process and a fair trial also protected by the Constitutions. You may lose, but there are times that the constitutional rights will trump statutory requirements (though not always). See, e.g. Davis v. Alaska, 415 US 308.

If the prosecution intends to offer rebuttal witnesses, it must serve you with notice (CPL 250.20(2). But they get up to ten days before trial. The statute contains a continuing obligation to provide additional witnesses (CPL 250.20[3]).

If you are serving a 250.20 notice, consider what you are statutorily required to offer in the notice. You must include the place or places the defendant claims to have been at the time, and the names, residential addresses, places of employment and those addresses for all witnesses. Strangely, you do not have to include phone numbers. Or e-mail addresses. Or what your client was doing at the time.

DAWSON

In People v. Dawson 50 NY2d 311 the Court of Appeals found that there was no per se due process prohibition against questioning alibi witnesses as to why they did not come forward earlier. The Court set forth a foundation that could be used by the prosecutor prior to questioning the witnesses, stating, in footnote 4,

In most cases, the District Attorney may lay a “proper foundation” for this type of cross-examination by first demonstrating that the witness was aware of the nature of the charges pending against the defendant, had reason to recognize that he possessed exculpatory information, had a reasonable motive for acting to exonerate the defendant and, finally, was familiar with the means to make such information available to law enforcement authorities.

But the Court also recognized that there are times a witness may choose not to come forward to inform the police of an alibi. One of those times may be if defense counsel advises them not to. So consider whether, if you are aware of the witnesses within a short time of the offense, you want your witnesses coming forward early in the case. If you advise them not to, argue that the prosecutor should not be permitted to question them about not coming forward, citing Dawson. If your witnesses have not come forward early in the case for other reasons, consider whether, under Dawson, those reasons should bar questioning about failure to come forward.

You should be aware that if the witnesses did not come forward early in the case, and the prosecution is permitted to question on it, or the Dawson considerations lead the Court to believe it’s fair to instruct on it, the alibi instruction does contain a paragraph that permits a jury to draw a negative inference.


WITNESSES WHO DO COME FORWARD

Occasionally, witnesses do come forward to the police, and if your client has still been charged, either they were deemed incredible by the police, or the police just didn’t care enough to consider whether what they had to say was the truth.

If the prosecutor gets to ask about failure to promptly come forward, shouldn’t we be able to establish that the witnesses did come forward? If you believe you may face objections about hearsay and bolstering if you try to elicit the prompt disclosure of the alibi to authorities, consider making an argument that due process, as protected by the New York State and United States Constitutions, entitles you to present this evidence. Here’s the argument you may want to include in any moving papers:

The defense will be presenting alibi evidence in Mr. Smith’s case. On (date), the date that Mr. Smith was arrested, Investigator Jones took Mr. Smith’s statement, in which Mr. Smith stated he was in (location) at the time of the crime. He told the investigator who he was with. The investigator failed to follow up on the information.

As this Court is aware, if an alibi witness fails to come forward prior to trial, or early in a case, under some circumstances a jury is read a jury instruction which permits an adverse inference, stating when applicable, “You may, however, consider the witness’ failure to come forward with such information earlier than he/she did only insofar as that failure is inconsistent with his/her alibi testimony at this trial, and casts doubt upon the truthfulness of that testimony.” The instruction cites to People v. Dawson, 50 NY2d 311. In Dawson, the Court recognized that “the failure to speak up at a time when it would be natural to do so might well cast doubt upon the veracity of the witness’s exculpatory statements at trial. In effect, in these situations, the witness’ previous silence is a form of conduct that may be analogized to a ‘prior inconsistent statement’ by the witness. As has been observed by one noted commentator, ‘(a) failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the nonexistence of the fact…There may be explanations, indicating that the person had in truth no belief of that tenor; but the conduct is ‘prima facie’ an inconsistency’ (cite omitted). And, of course, it is well established that an inconsistency in a witness’ prior conduct or statements maybe used as a means of impeaching his testimony at trial (cite omitted).”

It is defendant’s contention that if the prosecution may elicit testimony in alibi cases concerning witnesses who have not come forward, and an adverse inference is permitted when there is a failure of the witness to come forward early in the case (and the foundational requirements of Dawson have been met), then Mr. Smith’s due process rights as protected by the New York State and United States constitutions require that the defense be permitted to introduce testimony that the alibi information was provided on the date of defendant’s arrest by (the witness), and was available to the police from that date on. In other words, if it may be held against a defendant if an alibi witness does not come forward early, then it should be permissible for the defense to introduce testimony that a witness did.

If the prosecutor does not call the witnesses and give the defendant an opportunity to establish that the witnesses were available and that they attempted to “come forward” on the first date they learned of Mr. Smith’s charges –the date of his arrest, then the jury may be left with the questions anticipated by the Court in Dawson - why would his then-girlfriend not come forward? Is there something unbelievable about this account? Whether or not the jury is given an instruction about failure to come forward, the natural inclination to speculate about a failure to come forward when it would have been natural to do so might operate against Mr. Smith.

The right to introduce evidence of a witness coming forward in order to dispel jury speculation is permitted the prosecution under other circumstances. In sex offense cases, a prosecutor is permitted to introduce evidence of prompt complaint. One of the reasons prompt outcry is permitted was noted by the Court of Appeals in People v. McDaniel 81 NY2d 10. The Court stated, “(t)he contemporary rationale for permitting prompt outcry evidence is that some jurors would inevitably doubt the veracity of a victim who failed to promptly complain of a sexual assault, such conduct being “natural” for an “outraged female (cites omitted).” Although recent studies have suggested that it may not be unusual for a rape victim to withhold complaint ( cites omitted ), the admissibility of prompt outcry remains viable because ‘our judicial process cannot remove from every juror all subtle biases or illogical views of the world. The fresh-complaint rule responds to those jurors on their own terms.’ ( cite omitted.)” 81 NY 2d at 16-17.

Thus, both McDaniel and Dawson recognize the potential harm that may arise from jury speculation about a lack of evidence on a topic in which witnesses might be expected to behave differently. Defendant respectfully submits that pursuant to his rights to Due Process as protected by the New York State and United States Constitutions, he is entitled to elicit testimony that the witness provided alibi information to the police on the date Mr. Smith was arrested, and that witness information was made available to the police on that date, but was not investigated.

THE ALIBI INSTRUCTION

The current alibi instruction is found on the Office of Court Administration website (as are the other jury charges generally used by trial judges). http://www.nycourts.gov/cji/

As with all jury instructions, you should read them well before your trial. It seems to me that the current jury instruction does not necessarily comport with the requirement of People v. Victor, 62 NY2d 374, which requires that the trial court unequivocally instruct the jury that the alibi must be disproven beyond a reasonable doubt. (How awesome is that?) But the current instruction does not require that language. At least one person agrees with me that the instruction does not comport with Victor, as that issue was raised (and lost by the defense) before the Court of Appeals this year in People v. Melendez 16 NY3d 869. The Court found that the objection to the instruction was not preserved. The Court also pointed out that the instruction had recently been changed, so it seems this may be a basis to either get the instruction or to preserve an issue for appeal.

ALIBI AND IDENTIFICATION

In an alibi case, you are also challenging the identification of your client. All of the issues that come into play in an ID case are therefore present in the alibi trial. Make sure you are familiar with the current state of the law on identification, as well as issues relating to how ID procedures are conducted, experts on ID, and the expanded identification jury charge contained on the jury charge website. (Consider looking at the recent New Jersey case, State v. Larry Robinson, decided by the New Jersey Supreme Court on August 24th, as well as the New York State Justice Task Force report, “Recommendations for Improving Eyewitness Identifications”. (Consider asking for an ID charge before the witnesses testify, or perhaps a cross-racial ID charge before they testify and at the end of the case.)