SSRN Id3572102

Draft Accepted for Publication in vol. 56 of the Criminal Law Bulletin (2020).
INVESTIGATING AND PRESENTING AN ALIBI

DEFENSE
by Lisa J. Steele1
Alibis always sound so delightfully healthy, but they crack-up

dreadfully easily. . . Whatever the truth about his defence, Dave Anstey
it seemed had total faith in it. As for me, I'm not sure that I like cast
iron alibis. They're the sort that sink quickest, to the bottom of the sea.
Horace Rumpole (attorney), Mortimer, THE TRIALS OF RUMPOLE (1979)
The New Jersey Supreme Court has said that “few defenses have greater
potential for creating reasonable doubt as to a defendant's guilt in the minds of the
[jurors than an alibi].”2 But is alibi a powerful defense, or a risky gambit with a
high likelihood of backfiring?
Courts and prosecutors contend that alibis are easy to manufacture and
effective defenses.3 “Alibi”, some court suggest “has long been considered as one of
the main avenues of escape of the guilty”.4 Other courts refer to it as a “‘hip pocket’
defense because of the ease with which it can be manufactured for introduction in
1
Practicing Attorney in Connecticut and Massachusetts.
2
(internal quotation marks omitted) State v. Porter, 216 N.J. 343, 353, 80
A.3d 732 (2013).
3
See Williams v. Florida, 399 U.S. 78, 81 (1970).
4
See Alicea v. Gagnon, 675 F.2d 913, 916 (7 th Cir. 1982); State v. Davis, 624
P.2d 376, 379 (Haw. 1981) (both quoting from Millar, The Modernization of
Criminal Procedure, 11 J.CRIM.L. & C. 344, 350 (1920)).
Electronic copy available at: https://ssrn.com/abstract=3572102

the final hours of the trial.”5 Concerns about easy fabrication underlie notice of alibi
rules (such as Fed.R. Crim.P. 12.1) found in many jurisdictions.
Defense attorneys, on the other hand, frequently decline to offer alibi
witnesses out of concerns that the jury will reject the defense after the prosecutor’s
clever cross-examination and summation, leading to the defendant’s conviction.
Appellate dockets frequently contain post-conviction cases arguing that trial
counsel was ineffective for not investigating or not presenting alibi witnesses6 –
these claims are rarely successful. Commentators warn defense counsel to “exercise
extreme caution” in choosing alibi witneses and “take pains” to ensure that the alibi
5
State v. Davis, 624 P.2d 376, 379 (Haw. 1981) (“hip pocket” was first
mentioned in Stassen, The Show Window of the Bar, 20 MINN. L. REV. 577, 580-81
(1935)).
6
See e.g. Johnson v. Commissioner, 330 Conn. 520, 544 n. 4, 198 A.3d 52
(2019) where trial counsel said:
My belief about alibis is that unless they are solid, they can get you
into trouble. It's the last thing the jury hears if you have a good
prosecutor who's a good cross-examiner and can try to kind of attack
either a family member who's an alibi witness or some other
vulnerability to the alibi. To me, it pulls attention away from the
weaknesses in the state's case, and it kind of develops jurors' focus on
the weaknesses in the alibi. So, it's just been my practice to shy away
from alibis unless they're solid, and I had some concerns about the
alibi in this case.
and Outing v. Commissioner, 190 Conn. App. 510, 522, 211 A.3d 1053 (2019) where
trial counsel “testified that she had ultimately concluded, on the basis of her
experience as a trial attorney, that the presentation of an incomplete alibi defense,
bolstered only by friends and relatives of the accused, often undermines the
defendant's defense in a murder trial.”

witness’ testimony is consistent with other defense witnesses.7
So who’s right? Is an alibi defense the key to the jailhouse door, or a
millstone? The DNA exoneration cases suggest the latter. In about two-thirds (68%)
of the DNA exoneration cases, the innocent defendants offered an alibi which was
not believed by law enforcement; worse, weak alibis were used by prosecutors as
incriminating evidence at trial.8 Fact-finders, it seems, underbelieve alibi witnesses.
Defense counsel’s concerns seem validated – courts fears seem overstated. Yes, an
alibi can be fabricated – but so can almost all other testimony. Deciding whether an
alibi witness is accurate and truthful is hard – it is easy for a suspect to make a
good-faith error about where he was when first confronted by police, and easy for
potential alibi witnesses to make good-faith errors about the details of what was, for
them, an everyday event.
Does defense counsel then abandon alibis unless they are complete and
7
Sullivan, Presentation of the Defense, 62:2 J. CRIM. L, CRIMINOLOGY & POLICE
SCI. 153, 160 (1971). See Skakel v. Commissioner, 329 Conn. 1, 64, 188 A.3d 1
(2018) (Skakel). (“[there is nothing as dangerous as a poorly investigated alibi. An
attorney who is not thoroughly prepared does a disservice to his client and runs the
risk of having his client convicted even [when] the prosecution's case is weak”)
8
See Culter, CONVICTION OF THE INNOCENT 239-40 (2012); Garrett,
CONVICTING THE INNOCENT 156-57 (2011); Crozier, Strange, & Loftus, Memory
Errors in Alibi Generation: How an Alibi can Turn Against Us, 35:1 BEHAV. SCI. &
L. 6 (2017); Dysart & Strange, Beliefs about Alibis and Alibi Investigations: A
Survey of Law Enforcement, 18:1 PYSCH., CRIME & L. 11, 11-12 (2012); Olson &
Wells, What Makes a Good Alibi? A Proposed Taxonomy, 28:2 L. & HUM. BEHAV.
157, 157-58 (2004).

unequivocal, based on strangers, and supported by physical evidence? The question
falls largely on defense counsel because alibi is a reaction to the prosecution.
Defense counsel investigates alibi witnesses and looks for confirming evidence.
Counsel decides whether to offer an alibi defense, giving appropriate notice, and
chooses what witnesses to present and how. Investigators and prosecutors are
largely reactive – they follow-up on information provided by the defendant, and
challenge the defense witnesses at trial.
Insisting on only offering an alibi supported by physical evidence would mean
very few alibis would be offered. Alibis supported by strong physical evidence are
rare.9 Insisting on only offering an alibi supported by disinterested witnesses
ignores the risk that the witnesses who are most likely to be believed are also the
9
Culter, CONVICTION OF THE INNOCENT 240 (2012) (14% of alibis offered in survey of
American and Canadian cases were supported by physical evidence).
This may be changing. Cell phone location history, apps, and call records may
document a witness or defendant’s location at key times. Admittedly, these locate
the device, not who is holding it, but it may be persuasive corroboration even if not
absolute. Smart speakers and assistants that capture voices at critical times would
be harder to fabricate.
Litigation about geo-fencing warrants (searches of past location history) is
still in its infancy. See Valentino-DeVries, Tracking Phones, Google is a Dragnet for
the Police, N.Y. TIMES (4/13/19) available at:
https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.h
tml ; Schuppe, Police used Google Location Data to find an Accused Bank Robber. He
says That’s Illegal, ABC NEWS (11/20/19) available at:
https://www.nbcnews.com/news/us-news/police-used-google-location-data-find-accus
ed-bank-robber-he-n1086836

most likely to forget having seen the defendant.10
So what can defense counsel do? Basic research about perception, memory,
and good-faith error should be familiar to attorneys and judges from eyewitness
identification research and case law.11 There is also more specific research available
the psychology of alibis.12 Understanding what one can realistically ask of alibi
witnesses, and communicating that research to fact-finders may lead to a more
accurate assessment of alibi defenses and a decrease in convictions of innocent
defendants.
Where Were you that Night? – The Suspect and the Initial
Questioning
My heart started pounding . . . I had gotten my weekends confused.

Which meant the alibi I gave to the police was not going to check out at
all.
Ronald Cotton (exonerated defendant), Thompson-Cannio, Cotton &
Toreno, PICKING COTTON: OUR MEMOIR OF INJUSTICE AND REDEMPTION
86 (2009)
10
Charman, et al., The (Un)reliability of Alibi Corroborators: Failure to
Recognize faces of Briefly Encountered Strangers Puts Innocent Suspects at Risk,
35:1 BEHAV. SCI. L. 16 (2017).
11
See generally 2019 Report of the United States Court of Appeals for the
Third Circuit Task Force on Eyewitness Identification, 92 TEMPLE L. REV. 1 (2019).
12
This is a new field of research. A 2017 literature search of the term ‘alibi' on
Web of Science generated “three hits for 1988–1997, 11 for 1998–2007, and 43 for
2008–present day. As a comparison, close to 2,500 and 3,000 hits are returned for
the terms ‘eyewitness' and ‘deception', respectively (1988–2017).” Sauerland, Alibis:
Generation, Consistency, Corroboration, Believability, and Detection – Introduction
to this Special Issue, 35:1 BEHAV. SCI. L 3 (2017).

An innocent suspect may first learn that he or she needs an alibi when first
questioned by police. Questioning may occur soon after the crime, when the
suspect’s memory of where he or she was should be fresh. But it may also occur
days, weeks, or months later. The innocent suspect’s memory of his or her
whereabouts on a past date and time that had no significance until that moment
may be wrong – but a good faith mistake may be interpreted as a deliberate lie.
The Reid Method cautions that where a suspect has an alibi “it is imperative
that the alibi be checked, if at all possible, before the interrogation begins.”13 If the
alibi is defective, it will help the questioner. If not, it “may actually establish the
innocence of the suspect, despite other circumstances that may point to his guilt.”14
The manual suggests open-ended questions to elicit an alibi, like “please tell me
everything you did from noon on Friday until you went to bed”.15 If the suspect gives
a general alibi, like I was driving alone in my car that night, then the manual
suggests asking for details about the route the suspect drove, places he visited, and
approximate times of arrival and departure at any place he went.16 Doing this may,
13
Inbau, et al., CRIMINAL INTERROGATION AND CONFESSIONS 18 (5th Ed. 2013)
14
Id.
15
Id. at 86, 156, 444. The manual suggests that “[i]nformation that is volunteered during a
response to an open question – for example – a subject’s alibi – will probably all be truthful,
although perhaps incomplete.” and then gives an example of a truthful answer implying an alibi,
but not actually committing to it. Id. at 86-87.
16
Id. at 175.

the manual suggests, show gaps in the witness’ story or provide details that could
be tested. To test an alibi, the manual suggests:
! asking the witness about a fictional event, like a car accident, that
supposedly happened at the time and place mentions to see if the
suspect will believe the false event is true and add it to his story;17
and/or
! asking the witness for a detailed description of his activities and then
to recount the alibi in reverse chronological order.18
In practice, observers have noted that if a suspect offers an alibi “the interrogator
will attack it as inconsistent, contradicted by all of the case evidence, implausible,
and/or simply impossible – even if none of these assertions are true.”19
Innocent suspects are more likely to waive their Miranda rights and talk to
investigators. They believe, wrongly, that their innocence will be obvious to the
investigators.20 An innocent suspect may have no experience with a serious felony
17
Id. at 175-76. (The authors assume that the suspect has a clear memory of the evening
and “there would be no delay” in saying that the event didn’t happen. Id. at 76.)
18
Id. at 180. (“A person who has related a truthful account”, it posits, “will have little
difficulty doing this, because their memories are based on factual occurrences.” Id.)
19
Drizen & Leo, The Problem of False Confession in the Post-DNA World, 82 N.C. L.
REV. 891, 915 (2004).
20
Kassin & Norwick, Why People Waive their Miranda Rights: The Power of
Innocence, 28 L. & HUM. BEHAV. 211 (2004); Savitsky & Gilovich, The Illusion of
Transparency and the Alleviation of Speech Anxiety, 39 J. EXP. SOC. PSYCH. 618
(2003). Gilovich, Savitsky & Medvec, The Illusion of Transparency: Biased
Assessments of Others’ Ability to Read one’s Emotional States, 75 J. PERSONALITY &
SOC. PSYCH. 332 (1998); Vorauer & Claude, Perceived versus Actual Transparency of
Goals in Negotiation, 24 PERSONALITY & SOC. PSYCH. BULLTN. 371 (1998). See
Kassin, On the Psychology of Confessions: Does Innocence put Innocent at Risk?, 60

investigation, and is likely to be unfamiliar with techniques used by police to obtain
admissions and confessions.21 This may make the suspect more anxious to offer an
alibi without taking the time to verify it. Cotton, an innocent suspect arrested a few
days after Jennifer Thompson was sexually assaulted, confused his weekends and
gave police the wrong information about where he was.
This is not unusual. Innocent suspects may not accurately recall where they
were in the past. In one study, participants were asked to report their whereabouts
on four particular times in the past, then given 48 hours to return with evidence of
their whereabouts – in this low stress/low stakes test over 1/3 (36.4%) were wrong
about where they had been.22 If the suspect in the high stress/high stakes
interrogation room setting provides wrong information to law enforcement, officers
AM. PSYCH. 215 (2005). See also Scherr, Relich, & Kassin, Cumulative
Disadvantage: A Psychological Framework for Understanding how Innocence can
lead to Confession, Wrongful Conviction, and Beyond, PERSPECTIVES ON
PSYCHOLOGICAL SCIENCE (2020) (available at:
https://web.williams.edu/Psychology/Faculty/Kassin/files/Scherr%20Redlich%20Kas
sin%20(2020)%20-%20Cum%20Disadvant)
This same illusory aura of innocence may affect alibi witnesses, who expect
that the truth of their testimony will be obvious to investigators and may be
surprised when it is not.
21
See generally, Inbau et als, CRIMINAL INTERROGATION AND CONFESSION 150-
th
51 (5 Ed. 2013).
22
Olson & Charman, But Can You Prove it? Examining the Quality of Innocent
Suspects’ Alibis, 18:5 PSYCH., C & LAW 453, 459-64 (2012). See Culhane et al,
Generation and Detection of True and False Alibi Statements, 20:4 PSYCH., PSYCHOL.
& L. 619 (2013); Dysart & Strange, Beliefs about Alibis and Alibi Investigations: A
Survey of Law Enforcement, 18:1 PSYCH., CRIME & L. 11, 13 (2012).

may see this as a deliberate lie and as evidence of guilt.23
Cotton, like other witnesses, may have relied on a schema to generate this
alibis – he recalled what he habitually did at that time on a weekend, rather than
recalling specifically what he did on that particular day.24 If he in fact did what he
usually did, the alibi would be reliable. If he did something different, and had
forgotten that he had deviated from his routine, then the alibi would be
inaccurate.25 When police are unable to verify it, the suspect looks guilty.
As noted above, acquaintances and strangers may not recall interacting with
the defendant. If the defendant overconfidently assumes that the witness will do so,
then he or she may suggest alibi witnesses who don’t recall them when contacted by
an investigator.26 If the alibi witness fails to remember the defendant when
23
Id. at 19; See Bowden, Interview and Interrogation: Breaking the Alibi
https://www.policeone.com/investigations/articles/interview-and-interrogation-break
ing-the-alibi-PrttCmxEQCm5Y3kb/ (Last Viewed 1/13/2020).
24
Lens & Charman, Schema Reliance and Innocent Alibi Generation, 21:1
LEGAL & CRIMINOLOGICAL PSYCH 111, 112 (2013). See Crozier, Strange, & Loftus,
Memory Errors in Alibi Generation: How an Alibi can Turn Against Us, 35:1 BEHAV.
SCI. & L. 6, 12 (2017).
25
Lens & Charman, Schema Reliance and Innocent Alibi Generation, 21:1
LEGAL & CRIMINOLOGICAL PSYCH 111, 112 (2013).
26
35:1 BEHAV. SCI. L. 16, 21 (2017); see Gilovich, et al., The Spotlight Effect in Social
Judgement: An Egocentric Bias in Estimates of the Salience of one’s own Actions and
Appearance, 78 J. PERSONALITY & SOC. PYSCH., 211 (2000) (people overestimate the
extent to which others notice them). See also Yarmey, Eyewitness Recall and Photo
Identification: A Field Experiment, 10:1 PSYCHOL., CRIME & L. 53 (2004) (discussing relatively

questioned, then the investigator may assume that the defendant lied to them and
is guilty.27
The consequences of good-faith mistakes are serious. Once a defendant
makes a mistake, it may be near-impossible for them to convince anyone of their
innocence.28 (The one exception seems to be if the defendant lies, then provides a
salacious alibi.29) Changes, even changes that genuinely strengthen the alibi, tend
to weaken how fact-finders perceive it.30
If a suspect hesitates, however, wanting to think about where he or she was,
or to consult records, the prosecution may argue that the delay is a sign of
deception, not an attempt to be accurate. In Outing v. Commissioner, the defendant
was arrested four days after the shooting. Outing told police when he was arrested
that he did not recall where he was at the time of the murder.31 He provided police
poor witness performance identifying a person they briefly interacted with four hours earlier).
27
Id.
28
Suspects’ Alibis, 18:5 PSYCH., CRIME & LAW 453, 456 (2012).
29
See Nieuwkamp, et al., A Lie and a Mistress: On Increasing the Believability
of your Alibi, 23:5 PSYCH, PSYCHOL. & L. 733 (2016).
30
See Culhane & Horsch, Changed Alibis, Current Law Enforcement, Future
Law Enforcement, and Layperson Reactions, 39:7 CRIM. J. & BEHAV. 958, 974 (2012).
31
Outing at 522.
10

with a list of alibi witnesses the next morning.32 (He was incarcerated overnight –
there was no evidence that he’d had any contact with possible alibi witnesses before
providing the list to police.) Trial counsel believed that Outing’s inability to
immediately provide an alibi would undercut an alibi defense.33
Research on autobiographical memory suggests that people can respond
quickly to questions about their past whereabouts with general details, but have a
harder time recalling specific details.34 Had Outing’s attorney been more aware of
the limits of autobiographical memory, she may have been able to defend Outing’s
delay in naming his alibi witnesses, possibly with the aid of expert testimony.
Courts, like investigators, assume that innocent people should be able to
provide relatively strong and accurate alibis.35 This turns out to be untrue; most
people have trouble accurately recalling where they were in the past.36 In
Nieuwkamp’s study of over 800 volunteers drawn from the community, asked about
their whereabouts no more than a week earlier, 90% of subjects reported that they
32
Outing at 522.
33
Outing at 522.
34
Culhane et al, Generation and Detection of True and False Alibi Statements,
20:4 PSYCH., PSYCHOL. & L. 619, 620-21 (2013).
35
Suspects’ Alibis, 18:5 PSYCH., C & LAW 453, 464 (2012).
36
Nieuwkamp, Horselenberg & Van Koppen, The Illusion of the Perfect Alibi:
Estabishing Base Rate of Non-Offenders’ Alibis, 14 J. INVESTIG. PSYCH OFFENDER
PROFIL. 23 (2016) (Perfect Alibi).
11

could support their alibi with at least one witness – 65% could provide a motivated,
familiar person, 16% could provide an acquaintance or stranger.37 About 25% could
provide an item of physical evidence (typically a receipt); only 7% believed they
could find video recordings to support their claim.38 Alibis were weakest during the
times when a person was most likely to be at home, with friends, or at a movie and
strongest when the person was at work or in class.39 This study supports the general
proposition — the majority of a person’s time, especially at night, on weekends, and
during the holidays, is spent with friends and family – the weakest alibi
witnesses.40
In State v. Dickson,41 the defendant first learned he was a suspect in a
murder when he was arrested eighteen months after it occurred. His mother and
aunt repeatedly told police that he was with them at a sports bar on the night of the
murder and asked them to contact the bar to see if it still had video recordings to
prove Dickson’s alibi. Police did not contact the bar, which had a fire six months
after Dickson’s arrest. The Connecticut Supreme Court noted that “neither of the
37
Perfect Alibi at 30.
38
39
40
Culhane & Hosch, An Alibi Witness’ Influence on Mock Jurors’ Verdicts, 34:8
J. APP. SOC. PSYCH. 1604, 1606-07 (2004).
41
322 Conn. 410 (2016).
12

alibi witnesses testified unequivocally that the defendant had been in the sports bar
with his family at 9:30 p.m. on January 9, 2010, when the crime occurred.
Moreover, to the extent that the testimony of the defendant's mother and aunt
would support that conclusion, both witnesses had a clear motive to attempt to
convince the jury that the defendant was in the bar at that time.”42
What about strangers – would the bartender or wait staff have remembered
serving Dickson if asked a year and a half later? Unlikely. Unlike an eyewitness to
a crime, an alibi witness has no reason to realize when they interact with the
defendant that they will be asked to recall him or her later. The alibi witness may
have interacted with dozens of people during the critical time, and may not recall
which customers were there at that time.43
What about supporting physical evidence? Suspects provide leads or
references to physical alibi evidence in less than a quarter of criminal cases.44 In
Dickson, the defendant’s family believed that physical alibi evidence existed, but
police did not try to obtain it before it was lost in a fire at the bar. In a survey of
police officers, less than half (49.2%) said that a thorough investigation of an alibi is
42
Dickson at 459.
43
35:1 BEHAV. SCI. L. 16, 19 (2017).
44
Dysart & Strange, Beliefs about Alibis and Alibi Investigations: A Survey of
Law Enforcement, 18:1 PSYCH., CRIME & L. 11, 19 (2012).
13

always conducted before an arrest warrant is prepared or the defendant arrested,
38.1% said it is often investigated; 7.9% said it is sometimes investigated; and 4.8%
said it is rarely or never investigated before the warrant is prepared or the
defendant is arrested.45 Telling the police about physical alibi evidence does not
mean that it will be pursued.46
Police and Prosecutor Questioning of an Alibi Witness
What happens when a suspect provides alibi witnesses to the police or
prosecution? One survey of 73 prosecutors found that all but one took advantage of
notice-of-alibi rules to make a pretrial investigation of alibi witnesses.47
Epstein theorized that pre-trial investigations would lead to dismissal if the alibi
proved true.48 Nineteen percent reported no cases dismissed after investigation;
45
Dysart & Strange, Beliefs about Alibis and Alibi Investigations: A Survey of
Law Enforcement, 18:1 PSYCH., CRIME & L. 11, 17 (2012).
46
If the police fail to follow up on alibi information, the defendant could
combine an alibi defense with a claim of an investigative failure or omission,
arguing that a jury that could find reasonable doubt if jurors conclude that "the
investigation was careless, incomplete, or so focused on the defendant that it
ignored leads that may have suggested other culprits." State v. Wright, 322 Conn.
270, 322, 140 A.3d 939 (2016) citing Commonwealth v. Silva-Santiago, 453 Mass.
782, 801, 906 N.E.2d 299 (2009). This may be especially important to counter jurors’
inherent belief that if a case makes it to trial, then there is a reason not to trust an
alibi witness – if police had believed the alibi, the case would not have progressed to
trial. Sommers & Douglass, Context Matters: Alibi Strength Varies According to
Evaluator Perspective, 12 LEGAL & CRIMINOLOGICAL PSYCHOL. 41 (2007).
47
Epstein, Advance Notice of Alibi, 55 J. CRIM. L. CRIMINOLOGY & POLICE SCI.
29, 31-32 (1964). This 55-year-old article is the only reported survey of prosecutors to date.
48
Id.
14

this includes a few respondents who said they would not dismiss the case, even if
they thought the alibi might be true, because credibility was for the jury.49 Over
half (58%) reported a few dismissals, 15% reported dismissals in half their cases;
and 8% said there were many dismissals.50 Epstein concluded that “[t]he fact that
comparatively few cases are dismissed as a result of pre-trial investigation is
entirely consistent with our notion of alibis – they are usually false.” (emphasis
original).
There is another possibility, perhaps unknown to Epstein in 1964 – tunnel
vision and investigative bias. If the police have arrested the suspect, they have
already formed a conclusion that he or she is guilty.51 Once prosecutors have filed
charges and begun to prepare their case, they have likewise concluded that the
defendant is guilty.52
49
Id.
50
Id.
51
See generally Rossmo, CRIMINAL INVESTIGATIVE FAILURES 282-83 (2009).
See also Garrett, CONVICTING THE INNOCENT 266 (2011) ("[w]hen police form a
hunch that a suspect is guilty, they may then without realizing it discount any
evidence that does not jibe with their prior belief in the suspect's guilt.")
52
See Findley & Scott, The Multiple Dimensions of Tunnel Vision in Criminal
Cases, 2 Wisc. L. Rev. 291, 329, 331 (2006) (the prosecutorial role “inevitably fosters
tunnel vision”, “ethical prosecutors feel a pressure to push hard to obtain
convictions, because only a conviction serves the interest of justice”)
Similar confirmation bias issues may affect judges considering the effect of
alibi witnesses on the strength of the prosecution’s case on appeal, and whether
trial counsel was ineffective for not pursuing or offering alibi witnesses in a habeas
case.
15

If the police or prosecutor are convinced that the defendant is guilty, then the
alibi witness must be either liars or wrong. Disbelieving investigators may subject
alibi witness to coercive interrogation methods, which may pressure witnesses to
retract or hedge the alibi.53 Police or prosecutors may threaten alibi witnesses with
prosecution for perjury or obstruction of justice.54 Accurate, truthful witnesses may
be intimidated and either hedge or retract their statements.
Even more subtle methods can lead witnesses to retract an accurate, truthful
alibi.55 Witnesses exposed to incriminating information may doubt their own
53
See Moore, et al, Shaping Eyewitness and Alibi Testimony with Coercive
Interview Practices, THE CHAMPION 34 (October, 2014) (coercive techniques used in
specific case lead to retraction from alibi witness).
54
See People v. Henne, 165 Ill.App.3d 315, 326 (1988) (police arrested alibi
witness and charged her with obstruction of justice; witness then hedged her
previous answers The court faulted the defense for not calling the alibi witness at
trial. “For all we know, she did not testify due to her susceptibility of impeachment
by her inconsistent statements, or was not called by the defendant for fear of her
truthful answers.”); People v. Chen, 256 A.D.2d 75, 682 N.Y.S.2d 145 (N.Y. 1998)
(prosecutor’s interview with alibi witness in which prosecutor explained the legal
consequences of perjury did not improperly intimidate the witness). But see People
v. Pena, 175 N.W.2d 767 (Mich. 1970) (improper for prosecutor to send alibi
witnesses a letter quoting the state’s perjury statute).
See generally Sali & Robb, Fighting Governmental Witness Tampering, THE
CHAMPION 34 (June 2017) (potential alibi witness might be told, for example, “that
the investigation is still open, the prosecution may ultimately bring charges against
additional suspects, and continuing to maintain that the defendant was somewhere
else sounds like the kind of thing an accomplice would say”).
55
See Marion, et al, Lost Proof of Innocence: The Impact of Confession on Alibi
Witnesses, 40:1 L & HUM. BEHAV. 65 (2016) (over half of witnesses retracted an alibi
when falsely told that an innocent confederate confessed).
16

memories or fear being seen as lying for the suspect and prosecuted, and soften or
retract an alibi.56 Both truthful and false alibi witnesses may not recognize or
respond when police test them with altered versions of earlier alibi statements.57
If counsel becomes aware of an alibi witness before a police or prosecutors
interview, counsel may want to take a statement to preserve the original alibi from
further contamination by suggestion, post-event information, and pressure.58 If
counsel first becomes aware of the alibi witness after a statement was given,
counsel should see if the interview was recorded and talk with the witness to see if
coercive tactics were used.
Why Didn’t You Go to the Police? – The Alibi Witness After

Arrest
56
Marion, et al, Lost Proof of Innocence: The Impact of Confession on Alibi
Witnesses, 40:1 L & HUM. BEHAV. 65, 66 (2016).
57
Saureland, et al., Deceiving Suspects about the Content of their Alibis:
Consequences for Truthful and Untruthful Suspects, 18:2 J. FORENSIC PRACTICE 143
(2016) (both truthful and false witnesses were largely blind to alteration sin their
alibi statements when interviewed a few days later, leading to the appearance of
inconsistency for both kinds of witnesses). See also Sauerland, Krix, and Sagana,
Deceiving Suspects about their Alibi is Equally Harmful to the Innocent and Guilty,
__ APP. COG. PSYCH. __ (2019) (similar study showed that untruthful witnesses were
slightly better than truthful witnesses at noticing alterations to their prior
statements; guilty suspects are not easier to mislead than innocent ones).
58
Sullivan, Presentation of the Defense, 62:2 J. CRIM. L, CRIMINOLOGY &
POLICE SCI. 153, 161, n. 62 (1971) warns that “[t]he subtle pressures that the
subsequent interview [by the police or prosecutor] may bring to bear on the witness
may disturb the certainty of the witness’s recollections and engender changed
testimony at trial.”
17

Unless I could break this guy's alibi a murderer might be walking on

the street. There was such a small window of opportunity, I had to act
fast.
– Prosecutor’s remark to the press, see Browning, Prosecutorial
Misconduct in the Digital Age, 77 ALB. L. REV. 881, 889 (2013-14).
Sometimes, alibi witnesses do not go to the police and instead go to the
defendant’s family or defense counsel. In State v. Ghere59, the Connecticut Supreme
Court stated that
Although we do not believe that an alibi witness has a duty to report

an alibi story to the police or, for that matter, to any other person, a
witness in many instances naturally may be expected to convey such
information, especially when the witness is friendly with the accused.
** Failure of the witness to do so would, under [those] circumstances,
constitute grounds for impeachment [because the failure to report an
alibi under such circumstances is] relevant on the issue of credibility
or, more specifically, the issue of fabrication.
A review of the Ghere briefs shows that this assertion is based on judicial
experience; neither party provided the Court with research into how alibi witnesses
behave. The Ghere opinion is akin to the historical belief discussed a decade later in
State v. Troupe60 that “any ‘normal’ woman would report a rape soon after its
occurrence. The clear implication of this assumption was that if the woman did not
complain, it was likely that no rape had occurred.” The Troupe Court recognized
that “[i]ndisputably, one of the historic premises of the doctrine—that it is natural
for the victim of a sexual assault to complain promptly following the assault—has
59
201 Conn. 289, 304, 513 A.2d 1226 (1986).
60
237 Conn. 284, 295, 677 A.2d 917 (1996).
18

been discredited substantially in contemporary times. The overwhelming body of
current empirical studies, data, and other information establishes that it is not
inherently ‘natural’ for the victim to confide in someone or to disclose, immediately
following commission of the offense, that he or she was sexually assaulted.”61 Alibi
research does not yet have an overwhelming body of empirical studies about
witness behavior, but there is enough research to suggest that Ghere’s assumption
is flawed and should be abandoned.
A witness may be afraid to get involved in a criminal case62 or to go to the
police or prosecutors. As one court observed, “it is a lamentable but undeniable fact
of modern society that some of our citizens harbor a mistrust for law enforcement
authority which leads them to shun contact with the police even when the
avoidance of contact is not in their own best interest.”63
Witnesses may be afraid of the police in general, or may have immigration
issues, child custody issues, or pending criminal charges that make them
61
Id. at 300-01.
62
See People v. Steede, 149 A.D.2d 744, 540 N.Y.S.2d 528 (2d Dep't 1989)
(witness explained that “there's reasons why you don't go down to that precinct to
volunteer, because if they see you in the presence of other people they may lock you
up too for no reason.”) This is not an unreasonable fear; Kory Wise, one of the
defendants in the Central Park Jogger case became a suspect and falsely confessed
to the crime having gone to the station as an alibi witness for Yusef Salaam. See
generally, Smith, Central Park Revisited, N.Y. MAGAZINE (10/21/02).
63
People v. Conyers, 52 N.Y.S.2d 454, 458 (1981).
19

particularly concerned about contradicting the police narrative. If the case has
received significant media attention, the witness may be afraid of becoming part of
the story. The witness may be afraid of disapproval from the victim’s family or
friends.
Witnesses may believe that once the defendant has been arrested, going to
the police or prosecutors, even with a strong alibi, will not lead to the end of the
case.64 The further along the case is, the less likely it is that exculpatory evidence
would lead to a dismissal instead of giving the prosecutor time to prepare an attack
on the evidence.65
No empirical research exists to suggest that alibis presented early in the
criminal investigation process are better for an innocent suspect. To avoid good-
faith mistakes, an innocent suspect may want to wait until he or she can confirm
64
See Crozier, Strange, & Loftus, Memory Errors in Alibi Generation: How an
Alibi can Turn Against Us, 35:1 BEHAV. SCI. & L. 6, 14 (2017).
65
Culhane & Horsch, Changed Alibis, Current Law Enforcement, Future Law
Enforcement, and Layperson Reactions, 39:7 CRIM. J. & BEHAV. 958, 975 (2012).
In 2000, a Commission of Inquiry was established in Manitoba, Canada to
look into the exoneration of Thomas Sophonow, falsely convicted of murder. The
Commissioner made a number of recommendations – as to alibi evidence, he
suggested that the witness be interviewed by officers other than those involved in
the investigation of the offense, that any interview with an alibi witness be recorded
in its entirety, that the witness be treated with respect and courtesy – the witness
should not be cross-examined, leading questions should not be used, police should
not suggest that they are mistaken, threaten, intimidate, or influence the witness to
change their story. The Honourable Peter Cory, Commissioner, THE INQUIRY
REGARDING THOMAS SOPHONOW 20, 99-100 (November 5, 2001).
20

the alibi, even if that means waiting until the eve of trial.66
The Alibi Witness and Defense Counsel
Defense counsel is obligated to make all reasonable efforts to identify and
interview potential alibi witnesses.67. This includes reasonable efforts to identify
and locate witnesses, even if the defendant doesn’t know their full name. “[C]ounsel
reasonably cannot limit the pretrial investigation of a case to only those leads
offered by the client himself. * * * counsel has an independent duty to investigate
potentially important witnesses not suggested by the client, including, of course,
potentially important alibi witnesses.” (internal citations omitted).68 “[A] decision by
counsel to forgo an investigation into the possible testimony of a potentially
significant witness is constitutionally impermissible unless counsel has a sound
justification for doing so; speculation, guesswork or uninformed assumptions about
the availability or import of that testimony will not suffice.”69 A thorough
investigation of an alibi defense is especially important when “the missing witness
66
Most jurisdictions have procedural rules requiring defense counsel disclose
an alibi to the prosecutor prior to trial. Counsel should keep these requirements in
mind and make proper disclosures.
67
Skakel v. Commissioner, 329 Conn. 1, 36, 188 A.3d 1 (2018); the Skakel case
and Gaines v. Commissioner, 306 Conn. 664, 51 A.3d 948 (2012) (discussed infra)
are rare examples of successful habeas claims that trial counsel was ineffective for
not investigating or presenting an alibi witness.
68
Skakel at 55.
69
Skakel at 24-35.
21

is disinterested in a case in which the other witnesses have a relationship to the
defendant.”70
The Skakel Court set out four factors to consider in reviewing the
reasonableness of trial counsel’s decision not to investigate and/or present alibi
witness/witnesses. They include: “(1) the importance of the alibi to the defense; (2)
the significance of the witness' testimony to the alibi; (3) the ease with which the
witness could have been discovered; and (4) the gravity of the criminal charges and
the magnitude of the sentence that the petitioner faced.”71
The defendant’s family or friends may seek out alibi witnesses, and try to
encourage them to meet with defense counsel, or a defense investigator. Counsel
should warn incarcerated defendants about trying to contact witnesses themselves
or discussing contacting witnesses with family. Incarcerated defendants’ phone calls
and mail are routinely recorded and monitored. A recording of a defendant’s call, or
copy of a letter, seeming to intimidate a witness or create a false alibi would be
devastating to the defense and may lead to additional charges of tampering and/or
obstruction of justice, as well as a jury instruction about consciousness of guilt.72
70
Skakel at 36.
71
(internal citations omitted) Skakel at 37.
72
Counsel should, of course, caution both defendants and their families
against actually tampering with witnesses or evidence, obstruction of justice, and
perjury, which can lead to separate prosecutions or arguments that such efforts
show consciousness of guilt.
22

Family and friends should likewise be cautioned about appearing as if they
are trying to pressure an alibi witness or influence his or her testimony. One
treatise opines that:
Alibi witnesses are often honest by mistaken as to the occasion to

which they testify. Many alibis are built up of the testimony of
witnesses who, approached by the defendant or someone in his behalf,
are asked leading questions such as to whether they do not remember
that at a particular time and place they were with the defendant and,
if the witnesses are friends or member of the family of the accused,
they are very likely to fix some occassion when they were in the
company of the defendant as having occurred on the date suggested in
the inquiry. In interviewing alibi witnesses they should be asked with
whom they have talked on the subject and what was said, when they
first had occasion to think back and recall the occasion, what means or
facts they have to identify the occasion as occurring on that particular
date and what other facts and incidents were connected with the
occasion in question.73
Ideally, a defense investigator should contact potential alibi witnesses instead. He
or she is likely to be trained in nonsuggestive questioning methods, will be able to
document the conversation, and can testify, if needed, at trial.
Counsel should look for any evidence to support the alibi – receipts, security
videos, and cell phone records, for example – and carefully document how the
supporting evidence was obtained and preserved.
Tunnel vision and confirmation bias, not to mention cynicism about an alibi
defense, may lead counsel to discount an alibi witness. Regardless of any cynicism,
73
Frick, CRIMINAL INVESTIGATION 24 (5th Ed. 1949).
23

have an investigator interview potential alibi witnesses, look for corroborating
physical evidence, and take statements as appropriate. Memory is fragile and
vulnerable to after-acquired information; if counsel does not investigate the alibi
early, then vital information may be lost forever.
Once counsel learns of an alibi or alibi witness, he or she must consider
whether the jurisdiction has a notice of alibi defense requirement and, if so, when it
must be complied with.74 Notice-of-alibi rules were enacted in the early 20th century,
and dramatically reduced the use of alibi defenses at trial.75 “Convictions where an
alibi was offered had greatly increased since passage of the act.”76 In one survey of
prosecutors, 81% of respondents said that alibis were “only occasionally successful”,
11% said that they were successful “about half of the time”, only 8% reported more
frequent success.77 As suggested above, the decline may not have been entirely due
to deterring false alibis, but could include accurate, truthful alibi witnesses
deterred by prosecutor questioning from giving strong testimony, or testifying at all.
If the defense is aware of potential alibi witnesses, but uncertain whether it
74
See Wardius v Oregon, 412 U.S. 470 (1973) (notice-of-alibi rules must
impose reciprocal obligations on the prosecution); Williams v. Florida, 399 U.S. 78
(1970) (upholding Florida’s notice-of-alibi rule).
75
Epstein, Advance Notice of Alibi, 55 J. CRIM. L. CRIMINOLOGY & POLICE SCI.
29, 31 (1964).
76
Id.
77
Id.
24

will rely on an alibi defense at trial, then it may want to delay notice until a
decision has been made. (Notice must normally be given in time for the prosecution
to investigate the alibi witnesses if it wishes.) In Outing, trial counsel was
concerned about potential alibi witnesses who would say that the defendant was
less than a mile from the crime scene shortly after the murder.78 None of the
witnesses could pinpoint the defendant’s location at the exact time of the shooting.79
In that case, deciding to offer the alibi witnesses and disclosing them to the
prosecution could have weakened the defendant’s case. Similar problems could arise
if the alibi witnesses describe the defendant wearing something like descriptions of
the culprit around the time that the crime occurred.
Whether to Offer an Alibi Defense
An alibi is not a traditional affirmative defense – it is a response to the
prosecution’s case. Logically, an accurate and truthful80 alibi means that the
prosecutor’s witnesses have mis-identified an innocent defendant either through
good-faith eyewitness identification mistakes, or through deliberate lies by co-
78
Outing at 522.
79
Outing at 521.
80
Both the prosecutor and defense counsel are, of course, prohibited from
offering perjured testimony.
25

offenders or cooperating witnesses.81 Alibi defenses may work well when combined
with arguments about mistaken eyewitnesses, lying informants or co-operating
witnesses, and investigative failures or omissions, including a rush to judgment and
ignoring exculpatory evidence in the investigation. If the prosecution’s case is based
on physical or forensic evidence establishing that the defendant was at the crime
scene, then even an accurate, truthful alibi may be unpersuasive.82
Counsel needs to consider the relative strengths of the prosecution and
defense cases and the seriousness of the charges. Counsel should consult colleagues
to see how the prosecutor in this case has cross-examined alibi witnesses and
argued about alibi in closing. Counsel then needs to think about the alibi witnesses
and any corroboration of the alibi.
Counsel should make the decision whether or not to present an alibi along
with the client. Admittedly, decisions about which witnesses to call and what
defenses to raise are traditionally within trial counsel’s discretion. When a client is
represented by assigned counsel, he or she has no right to his choice of counsel.83
81
See Griffin v. Warden, 970 F.2d 1355, 1359 (4th Cir. 1992) ("[e]yewitness
identification evidence... is precisely the sort of evidence that an alibi defense
refutes best"); State ex rel. Wearry v. Cain, 161 So.3d 620, 621-22 (La.2015) (same).
82
The defendant may have had innocent access to the area and left DNA or
fingerprints prior to the crime. Video evidence is often unclear and may result in a
mistaken identification. Forensic evidence may be tainted by confirmation bias if
the examiner was aware of extrinsic inculpatory information at the time of the test.
83
See Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624-625
26

Unless the defendant can show circumstances mandating a change of assigned
counsel well before the start of trial, he or see either cedes to his assigned lawyer
trial management decisions or waives his right to counsel under Faretta v.
California84. Those ceded decisions included “what arguments to pursue, what
evidentiary objections to raise, and what agreements to conclude regarding the
admission of evidence.”85
It is the client’s future that is at stake in the trial. The client should have
some input on the decision of whether or not to present an alibi defense. It may be
important to the client that his or her family testify and demonstrate the client’s
innocence, even if that risks weakening the case. The final decision is counsel’s, but
if the client feels strongly about it, counsel should expect to have to defend the
decision in post-conviction proceedings.
(1989). See also United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); Wheat v.
United States, 486 U. S. 153, 159 (1988).
84
422 U.S. 806 (1975).
85
McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) (defendant decides
whether to plead guilty, waive the right to a jury trial, testify in one's own behalf,
and forgo an appeal and sets the general objectives of his defense.
In McCoy, Justice Alito contends that the criminal justice system “would
break down if defense counsel were required to obtain the client's approval for every
important move made during the course of the case.[] Among the decisions that
counsel is free to make unilaterally are the following: choosing the basic line of
defense, moving to suppress evidence, delivering an opening statement and deciding
what to say in the opening, objecting to the admission of evidence, cross-examining
witnesses, offering evidence and calling defense witnesses, and deciding what to say
in summation.” McCoy at 1516.
27

While the jury will be instructed that the defendant does not need to prove
the alibi is true, and that the prosecutor must disprove it to prove its case beyond a
reasonable doubt, jurors may nevertheless perceive the alibi as pitting the
credibility of the alibi witnesses against the prosecutor’s witnesses.86 In some cases,
jurors may even be instructed that if they find the alibi witnesses testified falsely,
then they can infer the defendant’s consciousness of guilt for manufacturing a false
alibi. Counsel may want to consider asking for alternative jury instructions to
emphasize that the burden of proof rests on the prosecutor and does not shift to the
defense.
Defense Counsel Preparation of Alibi Witnesses
Counsel should be careful not to tamper or interfere with the alibi witnesses,
or to appear to do so. Counsel should caution alibi witnesses that the police and/or
prosecutor are likely to contact them. As noted above, police or prosecutors may
86
See e.g. Spearman v. Commissioner, 164 Conn. App. 530, 548 n. 12, 138
A.3d 378 (2016) where defense counsel did not offer alibi witnesses because:
[It was] my fear ... that the jurors would potentially compare the two
— the two versions and see that maybe [the petitioner's] family had a
greater motive to protect him and * * * compare that [version to] [the
prosecutor’s witness’] motive for a couple hundred dollars and say,
well, the [defendant’s witnesses] have a greater motive and maybe
water down the proof beyond a reasonable doubt standard and not hold
the state to that — to that high standard, so I was — I made — you
know, made the decision that it was — that we had done enough on
cross-examination and didn't want to take that risk of — to having the
jury water down the standard of proof beyond a reasonable doubt. And
that was only made after — after the state rested.
28

threaten the witnesses with obstruction or perjury charges for contradicting their
case. If the witness feels threatened or pressured, the witness should let defense
counsel know that.
Some jurisdictions permit defense counsel to suggest that witnesses not talk
to the prosecutor and/or police87 – others view this as potentially obstruction or
tampering. If the witness refuses to meet with the prosecutor and/or police, expect
the witness to be cross-examined about this at trial. At minimum, counsel should
suggest that if an alibi witness wants to talk to the police and/or prosecutors, that
he or she ask for any interview to be recorded from start to finish so that there is an
objective record of what was said, and how it was said. Counsel can then request a
copy of the recording through discovery.
Counsel should caution witnesses that police and/or prosecutors will review
their public social media posts and that they should be wary of unusual social
media contacts or friend requests after their names have been disclosed.88 Witnesses
should let defense counsel know of any suspicious contacts or activity.
Motion in Limine: Voir Dire when Witness Comes Forward Late
87
See Foster v. State, 35 So. 3d 112 (Fla. Dist. Ct. App. 2010) (proper for
attorney to give his office address as contact address for alibi witnesses).
88
See Browning, Prosecutorial Misconduct in the Digital Age, 77 ALB. L. REV.
881, 889-902 (2013-14) (prosecutor created a false social media identity and
engaged in social media chats with alibi witnesses to persuade them to recant their
alibi).
29

Counsel could ask the trial court to preclude cross-examination of an alibi
witness about the timing of their disclosure until the prosecutor demonstrates 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.”89 The witness should be questioned outside of the jury’s presence if
there is any concern that the witness was reluctant to come forward because of
otherwise inadmissible personal concerns or fear of the defendant or victim’s family.
Dawson and Bryant also suggest voir dire if there is a possibility that the witness
was explicitly told by defense counsel not to go to the police or prosecutor – “in such
a case examination on the issue of the witness' post-consultation silence would be
improper and could well result in a mistrial.”90
89
People v. Dawson, 50 N.Y.2d 311, 321 n.4, 406 N.E.2d 771 (1980). See State
v. Bryant, 202 Conn. 676, 705-06, 523 A.2d 451 (1987); Commonwealth v. Brown, 11
Mass. App. 288, 416 N.E.2d 218 (1981).
90
Bryant at 706.
Counsel should be wary of any advice that may be construed as tampering
with a witness or interfering in a police investigation, and should consult the ethics
rules and case law in his or her jurisdiction. See Commonwealth v. Hart, 455 Mass.
230, 238, 914 N.E.2d 904 (2009) (Massachusetts ethics rules now prohibit counsel
from requesting "a person other than a client to refrain from voluntarily giving
relevant information to another party." Mass. R. Prof. C. 3.4 (f).
30

Counsel should expect a vigorous cross-examination.91 Defense counsel needs
to prepare the alibi witness to answer questions about:
• What is the witness’ relationship with the defendant?
• Any other information that affects the witness’ credibility,

including past convictions, or suggests bias.92
• Why the witness came forward when they did?
• When did the witness realize the defendant had been arrested?
• What did the witness learn about the crime?
• The prosecutor may ask a witness if he or she was aware

of other incriminating information like witnesses, forensic
evidence, or an admission/confession.
• When did the witness realize he or she could provide an alibi?
• If the witness did not go directly to the police or prosecutors, why not?
• Note: if the witness did go to the police or prosecutors, is there

any recording of the interaction? Did police or prosecutors
pressure the witness about the alibi?
• How is the witness sure about the alibi?
91
See State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979) ("[w]here a
defendant proposes an alibi as his defense, one permissible method of determining
whether the alibi was fabricated is to inquire into the specific details and the
surrounding circumstances of the alibi on cross-examination in an attempt to show
inconsistencies in the testimony of the various alibi witnesses, since the claim of
alibi is subject to searching scrutiny").
92
Asking the witness if he or she would lie or shade the truth for the
defendant was held to be improper – speculative and argumentative – in Watson v.
State, 257 Ark. 876, 531 S.W.2d 205 (1975).
31

• Does the witness have any supporting physical evidence?
• If there was supporting evidence not under the witness’ control,

did he or she tell anyone about it?
When did You Realize You had Exculpatory Information?
Witnesses who are casually acquainted with the defendant may not realize
that they can provide an alibi. Witnesses may be uncertain about dates or times –
for the witness the crime may have occurred when he or she was doing something
routine, and had not paid particular attention to specific times or places.
Sometimes the exact time or location of the offense is uncertain. Not only
could witnesses be unsure if they could provide an alibi for that time, investigators
or forensic experts who become aware of a strong alibi may subconsciously
reconsider the evidence and change their estimate of time or location to still support
the defendant as culprit.
Did You have a Motive to Exonerate the Defendant?
Most alibi witnesses are the defendant’s family, friends, co-workers, and
other people who know the witness well (“motivated” witnesses).93 This is normal –
one spends the most time around one’s family, friends, and co-workers.94
93
See Culhane & Hosch, An Alibi Witness’ Influence on Mock Jurors’ Verdicts,
34:8 J. APP. SOC. PSYCH. 1604, 1606-07 (2004).
94
Id.
32

Unfortunately, police and jurors tend to be skeptical of motivated alibi witnesses.95
If the crime took place during business hours on a weekday, the suspect’s
alibi witnesses are most likely his or her co-workers. If it took place late at night or
on a holiday, then the suspect’s alibi witnesses are most likely family. Expecting the
suspect to be able to provide neutral alibi witnesses for most dates and times is
unrealistic.
Would You Lie for the Defendant?
What about the popular assumption that friends and family are likely to lie
for the defendant? In one study, 62% of jury-eligible participants felt a biologically-
related alibi witness would be most likely to lie for a defendant; 50% felt the same
about someone related by marriage, and 32% felt the same about witnesses socially-
related to the defendant.96
95
See Dysart & Strange, Beliefs about Alibis and Alibi Investigations: A
Survey of Law Enforcement, 18:1 PSYCH., CRIME & L. 11, 17 (2012) (police least
likely to believe friends and family members, most likely to believe acquaintances
and strangers). See also Culhane et al, Generation and Detection of True and False
Alibi Statements, 20:4 PSYCH., PSYCHOL. & L. 619, 634 (2013); Hosch, et al, Effect of
an Alibi Witness’s Relationship to the Defendant on Mock Jurors’ Judgments, 35 L.
& HUM. BEHAV. 127, 139 (2011) (subjects more skeptical of kin than of those with
social relationship); Culhane & Hosch, An Alibi Witness’ Influence on Mock Jurors’
Verdicts, 34:8 J. APP. SOC. PSYCH. 1604, 1606-07 (2004) (mock jurors skeptical of
both kin and those with a personal relationship with defendant); Olson & Wells,
What Makes a Good Alibi? A Proposed Taxonomy, 28:2 L. & HUM. BEHAV. 157, 159,
161 (2004).
96
Marion & Burke, False Alibi Corroboration: Witnesses Lie for Suspects who
Seem Innocent, Whether They Like Them or Not, 37:2 L & HUM. BEHAV. 136, 136
(2013).
33

There is some research about when people are willing to provide false alibis.
In one study 23% of participants were willing to corroborate a false alibi, regardless
of how much they liked the suspect.97 Witnesses were less likely to lie when the
witness had seen evidence pointing to the suspect’s guilt than when there was
ambiguous evidence of guilt.98 Unfortunately, truthful witnesses are more likely to
retract an accurate alibi if exposed to incriminating evidence.99
It is really hard to separate an alibi provided in good faith from a lie.100 Study
after study shows that people are not good at accurately assessing deceit. In most
cases, investigators and fact-finders would be just as accurate if they flipped a
coin.101 This makes it hard for investigators and fact-finders to assess an alibi
97
Marion & Burke, False Alibi Corroboration: Witnesses Lie for Suspects who
Seem Innocent, Whether They Like Them or Not, 37:2 L & HUM. BEHAV. 136, 141
(2013).
98
Id. at 142.
99
Marion, et al, Lost Proof of Innocence: The Impact of Confession on Alibi
Witnesses, 40:1 L & HUM. BEHAV. 65 (2016) (over half of witnesses retracted an alibi
when falsely told that an innocent confederate confessed).
100
Charman, Matuku, & Mosser, The Psychology of Alibis in Bornstein &
Miller Eds., ADVANCES IN PSYCHOLOGY AND LAW 44-56 (2019).
101
See Nieuwkamp, Horsenlenberg & Van Koppen, True and False Alibis
Among Prisoners and their Detection by Police Detectives, 25:5 PYSCH., PSYCHOL & L
902 (2019); Culhane et al, Generation and Detection of True and False Alibi
Statements, 20:4 PSYCH., PSYCHOL. & L. 619, 627-29 (2013); see generally Granhag,
Vrij & Verschuere eds., DETECTING DECEPTION: CURRENT CHALLENGES AND
COGNITIVE APPROACHES (2015); Vrij, DETECTING LIES AND DECEPTION (2nd Ed.
2008); Vrij & Mann, Who Killed my Relative? Police Officers' Ability to Detect
Real-Life High-Stake Lies, 7 PSYCH. CRIME & L, 119 (2001).
34

witness.
The DNA exoneration cases suggest that there is a systemic bias in our
justice system against alibis provided by innocent suspects.102
Could You be Mistaken?
The police or prosecutor may suggest that an alibi witness has made a good-
faith mistake – confusing the date, time, or identity of the defendant. It is not an
unreasonable argument. The alibi witness had no reason to realize that he or she
would have to recall details of their interaction with the defendant days, weeks,
months, or years later.103
Counsel may want to look at the eyewitness identification case law in their
jurisdiction to ask for jury instructions104 on perception, memory, and the effects of
102
See Charman, Matuku, & Mosser, The Psychology of Alibis in Bornstein &
Miller Eds., ADVANCES IN PSYCHOLOGY AND LAW 42 (2019).
103
See Charman, et al., The (Un)reliability of Alibi Corroborators: Failure to
35:1 BEHAV. SCI. L. 16, 19 (2017); Crozier, Strange, & Loftus, Memory Errors in
Alibi Generation: How an Alibi can Turn Against Us, 35:1 BEHAV. SCI. & L. 6, 10
(2017); Kassam et al, Misconceptions of Memory: The Scooter Libby Effect, 20:5
PSYCH. SCI. 551 (2009) (motivation to recall does not help if the original event was
not memorable).
104
Look at your jurisdiction’s standard alibi instruction as well. Several
federal pattern jury instructions omit the word “alibi”, “because of widespread
negative connotations” associated with it. Committee Comment to Seventh Circuit
Pattern Criminal Jury Instruction 6.03. See Sand ed., MODERN FEDERAL CRIMINAL
JURY INSTRUCTIONS, Instruction 8-2, p. 8-10 (2019). See also Instructions
Disparaging Defense of Alibi, 146 A.L.R. 1377 (1943, 2019 supp.).
35

after-acquired information and suggestion. The jury should have some guidance
about how much accuracy they can realistically expect from a witness – be it the
prosecutor’s eyewitness or the defendant’s alibi witness.
Are You Sure You can Account for Every Moment When the Defendant
Could have Committed the Crime?
Often the witness cannot testify with certainty that the defendant was in his
or her sight, without distraction, at all relevant times.105 The Skakel court observed
that “partial alibis are unconvincing. Indeed, it has been argued that a partial or
incomplete alibi is not really an alibi in the truest sense; see, e.g., Williams v. State,
185 So.3d 1270, 1271 (Fla. App. 2016) (‘a partial alibi is no alibi at all’); because it
fails to account for a defendant's whereabouts for at least some period of time
during which the crime reasonably could have been committed by the defendant.
Thus, when a true partial alibi is at issue, it is invariably the case that the
defendant just as likely could have committed the crime during a period of time not
covered by the alibi.”106
105
See e.g. Johnson v. Commissioner, 330 Conn. 520, 198 A.3d 52 (2019) (jury
could have concluded that defendant snuck out of house, committed crime at nearby
location, and returned without his absence being detected by busy family members);
State v. Dickson, 322 Conn. 410, 459 (2016) (similar); Spearman v. Commissioner,
164 Conn. App. 530, 138 A.3d 378 (2016) (similar); LaPointe v. Commissioner, 316
Conn. 225 (2015) (witness could not provide "complete" alibi, because could not
account for defendant's whereabouts for 45 minutes while she was getting her son
to bed, a period in which the crime could have occurred).
106
Skakel v. Commissioner, 329 Conn. 1, 67-69, 188 A.3d 1 (2018) (internal
quotation marks omitted in original). See also id at 126-34 (Eveleigh, J. dissenting)
36

Partial alibis may be more useful than the Court suggests – if the jury
believes the alibi witness, then it would need to consider whether it is plausible that
the defendant could have snuck away, committed the crime, and returned
undetected by the witness.107 At trial, counsel may wish to ask witnesses whether
they observed any unusual demeanor or behavior before or after they last saw the
defendant – was he out of breath, sweaty, unaccountably upset, wearing different
clothing, or otherwise behaving oddly? In post-conviction, counsel may argue that
this question should have been put to the jury, which could have weighed the
probability of the prosecution’s argument.
Can I Offer an Expert Witness?
If your jurisdiction allows you to offer an eyewitness identification expert,
you should be able to offer an expert to talk about how perception, memory,
suggestion, and so on work in the alibi witness context. If the prosecutor’s case is
built on flawed eyewitness identification testimony, then you may already be
planning to offer an identification expert and can ask your expert if he or she can
also look at and talk about alibi witnesses research.
(discussing partial alibis).

107
See Spearman v. Commissioner, 164 Conn. App. 530, 548 n. 12, 138 A.3d
378 (2016) (relatives’ alibi testimony in arson case that defendant was asleep in his
room when fire was set would have left open possibility that defendant had set the
fire and run across the street to his home before the alibi witnesses first saw him
there).
37

Closing Argument
Prosecutors are given significant discretion to comment on alibi witnesses in
closing argument. Expect the prosecutor to ridicule your witnesses.108
Be wary of prosecutorial closing arguments that stray into impropriety by:
• vouching for the state’s witnesses
• improper comment on prosecutor’s belief in defense witness’s

credibility
• improper attack on defense counsel as suborning or soliciting perjured

alibi
• shifting the burden of proof

• prosecutor can recount testimony about police attempts to
contact alibi witnesses without shifting burden of proof.109
• implications that the defendant or alibi witnesses had a duty to come

forward to police
• This can become an improper comment on the defendant’s right
to remain silent.110
• the prosecutor arguing about what he or she would do to protect a
108
See People v. Henderson, 77 N.E.3d 1046 (Ill. App. 2017) (alibi witness were
as credible as believing in “the Easter Bunny”); State v. Lazo, 209 N.J. 9, 34 A.3d
1233 (2012) (prosecutor described alibi as “convenient”); Hamilton v. State, 396 P.3d
1009 (Wyo. 2017) (alibi defense was “nonsense”).
109
Commonwealth v. Bresilla, 470 Mass. 422, 23 N.E.3d 75 (2015).
110
Buchanan v. State, 523 P.2d 1134 (Okla. Crim. 1974); but see Kirkland v.
State, 726 S.E.2d 644 (Ga. App. 2012) (prosecutor’s argument about defendant’s
failure to substantiate alibi given to investigators not improper comment on silence
at trial, but inartful attempt to comment on alibi).
38

loved one.111 •
Object to improper arguments, ask for curative instructions, and preserve the
record for appellate review.
Ineffective Assistance for Not Presenting an Alibi Defense
After conviction, defendants frequently tell their post-conviction lawyers that
their trial attorneys did not investigate or present alibi witnesses. As Skakel
explained above, counsel has a duty to investigate alibi witnesses. Post-conviction
counsel’s first step should be to talk with trial counsel and the defense investigator
and find out if what trial counsel did.
Defendants may say that they, or their families, told trial counsel about
witnesses. Trial counsel’s copies of letters, notes, and memos may mention what
names were provided. Skakel also notes that counsel has some obligation to look for
witnesses even if the defendant hasn’t provided their names.
If counsel was aware of alibi witnesses, investigated them, and found them
not credible, or had concerns that using them would strengthen the prosecution case
– perhaps putting the defendant near the crime scene112, or wearing clothing like
111
Prosecutor’s remarks that he was sure the alibi witnesses “love [defendant
as much as I love my children and my wife” and that “if anyone of them is locked up
for a crime, you better believe that I am going to go tell someone that this person
was with me that night” were acceptable hypotheticals about human nature and the
alibi witness’ motives. Commonwealth v. Carson, 590 Pa. 501, 913 A.3d 220 (2006).
112
Post-conviction counsel may need to offer information about the geography
to rebut arguments that the client could plausibly have gone from the scene of the
39

the culprit’s – then he or she may have made a reasonable tactical decision not to
use the alibi witness.
If trial counsel did not locate a witness and they are still available, then post-
conviction counsel’s investigator should interview the witness.113 In Skakel and
Gaines114, another successful habeas case involving new alibi witnesses, the trial
court found the alibi witnesses “highly credible”115 or “credible and compelling”116.
On appeal, the petitioner was defending a granted habeas petition from the
respondent’s appeal. If the habeas court finds the alibi witnesses not credible, then
an appellate court generally defers to the factfinder based on his or her “firsthand
alibi to the crime and returned, and make sure the time-line is clear to the habeas
judge.
113
If there is any uncertainty that the person post-conviction counsel is
speaking with is the same person present at the time of the offense, then counsel
may need to show a picture of the witness to other witnesses to confirm his identity.
This can come up if the witness was identified earlier only by nick-name, first-
name, or role (defendant’s cousin’s friend), but not by full name.
114
Gaines v. Commissioner, 306 Conn. 664, 51 A.3d 948 (2012).
115
Skakel at 4.
116
Gaines at 676. Gaines’ co-defendant was unsuccessful in his habeas
petition. There, the same alibi witnesses who had testified for Gaines invoked their
fifth amendment privilege against self-incrimination and did not provide testimony
at the habeas trial. The trial court instead had the transcripts of their testimony
from Gaines’ habeas trial. The habeas court found the alibi witnesses to be not
credible and denied Shipman’s petition. Shipman v. Commissioner, 172 Conn. App.
600, 161 A.3d 585 (2017).
40

observation of their conduct, demeanor and attitude.”117
Post-conviction counsel will need to address the same credibility issues as
trial counsel – what are the witness’ biases, how does the witness remember the
events, and why didn’t he or she come forward sooner. Even more time will have
passed between the crime and their meeting with an investigator; it is normal if the
witness does not recall all details as well as they would have if interviewed pre-
trial.
Counsel may need to consult an expert to provide testimony about perception,
memory, and especially autobiographical memory, to explain the harm caused by
not making a timely investigation. Counsel will need to find out where the witness
was at the time of trial, whether the witness would have been then-willing to talk to
trial counsel if asked, and why the witness did not come forward on his or her own.
Trial counsel may offer some version of the testimony offered by counsel in
Johnson and Outing about why they felt that offering an alibi defense was unwise.
Post-conviction counsel will need to address why those concerns were not
reasonable in light of whatever investigation trial counsel did. This may also be a
useful area for expert testimony. Post-conviction counsel may also ask, as the
Skakel court did, how the missing alibi witness(es) would have affected the jury’s
view of other evidence or other choices made by defense counsel.
117
Shipman at 614, n. 5.
41

Conclusion
Alibi is an important defenses for the innocent defendant. Prosecutors and
judges are skeptical of alibi witnesses, perhaps overly so. Defense attorneys seem
reluctant to offer all but the most rock solid of alibis. The result may be a loss of
accurate, truthful alibi testimony supporting innocent defendants.
There are a growing number of research articles about the psychology of alibi
witnesses and how they are perceived by investigators and jurors. As yet, research
does not know much about how easily or often alibis are fabricated, whether there
are reliable cues for an investigator or fact-finder trying to evaluate an alibi, how
jurors actually react to incomplete or partial alibis, and how well jurors follow jury
instructions when weighing alibi witness testimony.
Investigators and prosecutors should consider the effects of investigative bias
and tunnel vision when they evaluate an alibi witness. The Sophonow
recommendations to fairly evaluate an alibi should be used more often.
Investigators and prosecutors should be prohibited from threatening alibi witnesses
with criminal charges.
Defense counsel should investigate alibi witness, even if he or she is skeptical
about using an alibi at trial, and document that investigation. If counsel decides to
present an alibi defense, then he or she should carefully prepare the witness for
contact from the prosecutor and/or police after disclosure, and for inevitable cross-
42

examination questions at trial. Counsel should be prepared for a vigorous closing
argument and alert for prosecutorial misconduct or impropriety in cross-
examination or closing. Counsel should consider expert testimony about perception,
memory (particularly auto-biographical memory), suggestion and after-acquired
information, and good-faith mistake in appropriate cases.
Courts and counsel should consider jury instructions about perception,
memory, suggestion and after-acquired information, and good-faith mistake to give
jurors a proper framework to evaluate prosecution and defense witnesses alike.
43

SSRN Id3572102

Uploaded by

Copyright:

Available Formats

You might also like

SSRN Id3572102

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

SSRN Id3572102

Uploaded by

Copyright:

Available Formats

Draft Accepted for Publication in vol. 56 of the Criminal Law Bulletin (2020).

INVESTIGATING AND PRESENTING AN ALIBI

Alibis always sound so delightfully healthy, but they crack-up

high likelihood of backfiring?

Electronic copy available at: https://ssrn.com/abstract=3572102

rules (such as Fed.R. Crim.P. 12.1) found in many jurisdictions.

Defense attorneys, on the other hand, frequently decline to offer alibi

clever cross-examination and summation, leading to the defendant’s conviction.

Appellate dockets frequently contain post-conviction cases arguing that trial

Electronic copy available at: https://ssrn.com/abstract=3572102

witness’ testimony is consistent with other defense witnesses.7

So who’s right? Is an alibi defense the key to the jailhouse door, or a

incriminating evidence at trial.8 Fact-finders, it seems, underbelieve alibi witnesses.

them, an everyday event.

Electronic copy available at: https://ssrn.com/abstract=3572102

unequivocal, based on strangers, and supported by physical evidence? The question

falls largely on defense counsel because alibi is a reaction to the prosecution.

largely reactive – they follow-up on information provided by the defendant, and

challenge the defense witnesses at trial.

Insisting on only offering an alibi supported by physical evidence would mean

rare.9 Insisting on only offering an alibi supported by disinterested witnesses

Electronic copy available at: https://ssrn.com/abstract=3572102

most likely to forget having seen the defendant.10

witnesses, and communicating that research to fact-finders may lead to a more

accurate assessment of alibi defenses and a decrease in convictions of innocent

My heart started pounding . . . I had gotten my weekends confused.

Electronic copy available at: https://ssrn.com/abstract=3572102

Electronic copy available at: https://ssrn.com/abstract=3572102

be tested. To test an alibi, the manual suggests:

will attack it as inconsistent, contradicted by all of the case evidence, implausible,

and/or simply impossible – even if none of these assertions are true.”19

investigators.20 An innocent suspect may have no experience with a serious felony

Electronic copy available at: https://ssrn.com/abstract=3572102

investigation, and is likely to be unfamiliar with techniques used by police to obtain

gave police the wrong information about where he was.

interrogation room setting provides wrong information to law enforcement, officers

Electronic copy available at: https://ssrn.com/abstract=3572102

may see this as a deliberate lie and as evidence of guilt.23

an investigator.26 If the alibi witness fails to remember the defendant when

Electronic copy available at: https://ssrn.com/abstract=3572102

The consequences of good-faith mistakes are serious. Once a defendant

makes a mistake, it may be near-impossible for them to convince anyone of their

to weaken how fact-finders perceive it.30

If a suspect hesitates, however, wanting to think about where he or she was,

deception, not an attempt to be accurate. In Outing v. Commissioner, the defendant

Electronic copy available at: https://ssrn.com/abstract=3572102

immediately provide an alibi would undercut an alibi defense.33

Research on autobiographical memory suggests that people can respond

Courts, like investigators, assume that innocent people should be able to

Electronic copy available at: https://ssrn.com/abstract=3572102

provide an item of physical evidence (typically a receipt); only 7% believed they

proposition — the majority of a person’s time, especially at night, on weekends, and

In State v. Dickson,41 the defendant first learned he was a suspect in a

Electronic copy available at: https://ssrn.com/abstract=3572102

which customers were there at that time.43

What about supporting physical evidence? Suspects provide leads or

references to physical alibi evidence in less than a quarter of criminal cases.44 In