Alibi -- Practice Under Fed. R. Crim. P. 12.1


The burden of producing an alibi defense is triggered when the government submits a written demand that requires the date time and place that an alleged offense was committed. It is advised that great caution is taken when responding to the demand for an alibi. This is because the information that the alibi contains may be treated as a bill of particulars and could potentially be used to restrict the government in its proof.


Defendants are given ten (10) days to serve the government with written notice of his or her intention to offer an alibi defense that provides the specific place(s) where he or she claims to have been at the time the alleged offense occurred (unless the court prescribes a different period of time). This alibi should include the names and addresses of witnesses that can corroborate this alibi.


The government is then given 10 days to serve the defendant with written notice of the witnesses it intends to call to establish and verify the defendant’s presence at the crime scene or to refute this alibi. Additionally, the court may allow more than 10 days for the government to rebut an alibi, but may prescribe no less than 10 days). Due to disclosure obligations, defendants may withdraw an alibi due to information they wouldn’t have otherwise received, which is why the decision to demand alibi discovery should be made with caution.


Discovery of Alibi Witnesses -- Fed. R. Crim. P. 12.1


Rule 12.1(a) of the Federal Rules of Criminal Procedure allows the government to discover (on written demand), before a trial, a defendant’s alibi and corroborating witnesses. In a tradeoff of sorts for such discovery, the government is required to disclose to the defense all the names and addresses of the witnesses whom it intends to use as a basis to establish the presence of the defendant at the scene of the offense and refute the defendant’s alibi.


According to Rule 12.1(b), both the defendant and the government have an obligation to notify one another of additional witnesses who should be included, inclose those who are originally disclosed. This rule applies equally to both parties and should work to satisfy the constitutional requirements of the Fifth Amendments.


Failure to comply from either party can potentially result in the exclusion of the testimony of the witness who was not disclosed (besides the defendant). Although a finding of bad faith is not a prerequisite or a requirement of exclusion, it is an important factor in determining whether the exclusion of an alibi witness is appropriate. However, courts are sometimes hesitant to exclude alibi testimony as a punishment for negligent conduct. Non-compliance may, in fact, be excused if good cause is shown. If the need to ensure the safety of a government witness has been held to satisfy good cause, the court should take no action against such non-disclosure. If a defendant withdraws an alibi defense, the fact that he or she once intended to assert an alibi may not be used against him in any form of civil or criminal proceeding.


Unsolicited Disclosure By the Defendant


Discovery under Rule 12 is a procedure triggered by the prosecution for their benefit. A defendant’s unsolicited disclosure of an alibi or alibi witnesses should not trigger the government's reciprocal discovery obligations.


Specific Incident During a Continuing Offense


Rule 12.1 can also be used to obtain alibi discovery for specific periods of time or specific incidents during a continuing offense. If this is the desired form of discovery, the government is advised against limiting its scope to prove that particular events took place only during the time frame in its demand. To ensure that the government is not so limited in its discovery, the demand should either include the entire frame of time that the offense occurred or the government is advised to specify that the period indicated in the demand is not the entire time period that the offense occurred.


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