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The Alibi Defense

Alibi – it’s one of the more common legal terms you’ll hear on the news or in popular culture.  But what does it actually mean?  And how can you use it to your advantage when preparing a defense to criminal charges?  This post will examine the alibi defense and its practical applications for your criminal case.

Alibi Defined

Alibi is a Latin phrase which means “somewhere else.”  In the criminal defense context,  the defendant attempts to show that he could not have committed the alleged crime because he was somewhere else when the crime occurred.

Procedural Requirements

In Wisconsin, attorneys must follow specific requirements in order to use the alibi defense.  Wisconsin Statute 971.23(8) requires the defendant to give notice to the prosecutor that he intends to rely on an alibi defense.  The defense must inform the prosecutor no later than 30 days prior to the start of the trial.  The defendant must provide his whereabouts at the time the offense was committed.  The defendant must also provide the names and addresses of witnesses which will testify in support of the alibi.  There is a steep penalty for not following this rule.  The court may prohibit him from using the alibi defense at trial.

Within 20 days after receiving notice of alibi, the prosecutor must disclose his list of rebuttal witnesses.  Rebuttal witnesses are witnesses whose sole purpose is to discredit the defendant’s alibi.  If the prosecutor does not provide a list of rebuttal witnesses, then the court likely won’t allow any rebuttal testimony on the alibi issue.

The alibi witness list and the rebuttal witness list requirements exist so that there are no surprises at trial.  It is customary that both sides exchange witness lists.  Under normal circumstances, however, rebuttal witnesses are not disclosed.  The alibi provision is an exception to this rule.

Additional Alibi Nuances

What happens if you follow all of the procedural requirements but don’t actually use the alibi at trial?  In that scenario, the prosecutor cannot comment on the the fact that you were going to use this defense.  The prosecutor also cannot call any of your alibi witnesses in order to impeach the defendant’s credibility with regard to the notice.  However, nothing prohibits the prosecutor from calling these witnesses for any other legitimate purpose.

The alibi defense also does not shift the burden of proof to the defendant.  Unlike other defenses, such as entrapment, the defendant does not have to “prove” that he was not at the scene of the crime.  If the defendant uses this defense, the burden is still on the prosecutor to prove that the defendant committed the crime.  Obviously, the defendant must be present at the scene of the crime in order to commit it.  The prosecution will use the rebuttal witnesses to try and prove that the defendant was in fact at the scene.

When Notice is Not Required

While it may seem that this is a black and white issue, there are some gray areas as to what really is an alibi.  A defendant testifying that he was somewhere else at the time the crime was committed is not an alibi without presenting additional evidence.  For example, no notice is required if no witnesses testify to support the defendant’s testimony.  It also isn’t an alibi for someone who was at the scene of the crime to testify that the defendant was not there.  The nuance here is that the witness who was at the scene of the crime does not know exactly where the defendant was.  This means that there is no evidence offered to show where exactly the defendant was.  The only evidence offered shows that the defendant was not at the scene of the crime.

Credibility Matters

An alibi witness’s credibility is extremely important.  If the jury thinks that the witness is just trying to cover for a friend or family member, the defense will certainly fail.  This is why it helps to have additional documentation in support of the defense.  For example, receipts, surveillance videos, and photographs are unbiased.  The best evidence is when the defendant is on camera at one location when the crime happens elsewhere.

An alibi defense is one of the most powerful defenses available to criminal liability.  Your criminal defense lawyer needs to know how to follow the procedural requirements.  All of the lawyers at Meyer Van Severen, S.C. have tried cases using this defense.  We are aware of the requirements to put forth the defense.  But we also know when not to tip our hand to the prosecutor.  These cases require in depth investigation to make sure that there are no surprises at trial.  Hire one of Milwaukee’s top criminal defense attorneys today!