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did not have co-workers or employment records to Alibi Defenses: establish their whereabouts on weekdays. Others had only family members who said the defendant was at Millstone or Key to home at the time of the crime. Prosecutors argued that weak alibis were false and a sign of the defendant’s the Jailhouse Door? efforts to deceive the jury. Even strong alibis were not enough — one exoneree had 11 alibi witnesses to estab- lish that he was at a two-day long sports competition, Alibis always sound so delightfully healthy, but supported by credit card receipts for his travel, meals, they crack-up dreadfully easily. … Whatever the and purchases on the trip. The prosecutor successfully truth about his defence, Dave Anstey it seemed argued that the witnesses were liars or mistaken. had total faith in it. As for me, I’m not sure that I Prosecutors have been known to expand an offense date like cast iron alibis. They’re the sort that sink to evade an airtight alibi (i.e., when the defendant was quickest, to the bottom of the sea. in jail on the date the crime was committed). Some trial defense attorneys decline to offer alibi — Horace Rumpole (attorney), Mortimer, defenses. The post-conviction dockets are littered with THE TRIALS OF RUMPOLE (1979) defendants who claim trial counsel was ineffective for not investigating or not presenting alibi witnesses. In Johnson v. Commissioner,3 for example, trial s an alibi defense the key to the jailhouse door, or is counsel said: it a millstone? The DNA exoneration cases suggest Ithe latter. In about two-thirds (68 percent) of the My belief about alibis is that unless they are DNA exoneration cases, the innocent defendants solid, they can get you into trouble. It’s the last offered an alibi that was not believed by law enforce- thing the jury hears if you have a good prose- ment; worse, prosecutors used weak alibis as incrimi- cutor who’s a good cross-examiner and can try nating evidence at trial.1 Of the 140 exonerees who pre- to kind of attack either a family member who’s sented an alibi, 121 had witnesses, the remainder had an alibi witness or some other vulnerability to only their own testimony.2 Many were unemployed and the alibi. To me, it pulls attention away from the weaknesses in the state’s case, and it kind Editor’s Note: This article is adapted from Lisa Steele, of develops jurors’ focus on the weaknesses in Investigating and Presenting an Alibi Defense, 56:6 CRIM. the alibi. So, it’s just been my practice to shy L. BULL. 1083 (2020). away from alibis unless they’re solid, and I had some concerns about the alibi in this case.

BY LISA J. STEELE

20 NACDL.ORG THE CHAMPION In Outing v. Commissioner,4 trial pect will believe the false event is of justice charges.24 Investigators may counsel “testified that she had ulti- true and add it to his story;11 also confront witnesses with other evi- mately concluded, on the basis of her and/or dence of guilt, which can lead witnesses experience as a trial attorney, that the to weaken or disavow their alibi.25 presentation of an incomplete alibi v ask the witness for a detailed Police may find that witnesses can defense, bolstered only by friends and description of his activities and then provide only incomplete alibis. For relatives of the accused, often under- to recount the alibi in reverse example, witnesses may not be certain mines the defendant’s defense in a chronological order.12 about the exact time the suspect murder trial.” In both cases, the habeas arrived and departed, or they may not and the appellate courts found the Again, the reader should consider be sure that he was with them the attorney to have made a reasonable how well he or she would fare in this test. entire time.26 Investigators may con- tactical decision. In practice, observers have noted clude that the suspect could have com- So what can defense counsel do to that if a suspect offers an alibi “the mitted the crime when a witness was improve alibi defenses? interrogator will attack it as inconsis- not paying attention, or that the wit- tent, contradicted by all of the case evi- ness was wrong about when the suspect The Suspect at the Station dence, implausible, and/or simply arrived or left. The alibi witness may impossible — even if none of these also place the suspect near the scene of My heart started pounding. … assertions are true.”13 the crime around the time that it I had gotten my weekends con- occurred — as much a boon to the fused. Which meant the alibi I Once a suspect makes a mistake, it prosecution as to the defense. gave to the police was not going may be nearly impossible for him to Police may have trouble getting the to check out at all. convince anyone of his innocence.14 witness to cooperate. Some witnesses do (The one exception seems to be if the not want to be involved with the police.27 — Ronald Cotton defendant lies and then provides a sala- In State v. Ghere,28 the Connecticut (exonerated defendant)5 cious alibi.15) Changes, even changes Supreme Court stated: that genuinely strengthen the alibi, tend First, it helps to think about the to weaken how fact-finders perceive it.16 Although we do not believe alibi from an innocent suspect’s per- It is not surprising that innocent that an alibi witness has a duty ALIBI DEFENSES spective. When questioned or arrest- suspects have trouble providing alibis to report an alibi story to the ed, law enforcement officers asked the during interrogations; the surprising police or, for that matter, to suspect about a date and time that part is what happens when they do. any other person, a witness in might have been days, weeks, or many instances naturally may months earlier.6 The innocent suspect The Alibi Witness and Investigators be expected to convey such had no reason to pay specific atten- information, especially when tion to where he was, when he was Unless I could break this guy’s the witness is friendly with the there, and who was with him. He had alibi, a murderer might be walk- accused. … Failure of the wit- no reason to retain a receipt or other ing on the street. There was such ness to do so would, under physical evidence.7 a small window of opportunity, [those] circumstances, consti- If the suspect gives police an alibi I had to act fast. tute grounds for impeach- during the interview, he, like Ronald ment [because the failure Cotton, risks misremembering and — Prosecutor’s remark to the press17 to report an alibi under such looking like a liar.8 If he waits to think circumstances is] relevant on about it or to check with his family What happens when the police the issue of credibility or, and friends, he looks like he is fabri- investigate the suspect’s alibi?18 Disin- more specifically, the issue cating the alibi.9 terested witnesses, those most likely to of fabrication. The Reid manual10 suggests asking be credited, are also those most likely to suspects to “please tell me everything forget having seen the defendant.19 The Another court observed that “it is a you did from noon on Friday until you police may interpret a witness’s inabili- lamentable but undeniable fact of modern went to bed.” If the suspect gives a gen- ty to recall the suspect as a lie by the society that some of our citizens harbor a eral alibi, like “I was driving alone in suspect, further convincing them that mistrust for law enforcement authority my car that night,” then the manual the suspect is guilty. which leads them to shun contact with the suggests asking for details about the The witness may explain that he was police even when the avoidance of contact route the suspect drove, places he visit- with family or friends — the people with is not in their own best interest.”29 ed, and approximate times of arrival whom the suspect was most likely to be Witnesses may be afraid of the police in and departure at any place he visited. on an ordinary day, at an ordinary general, or they may have immigration The reader may wish to consider how time.20 Police may investigate, but law issues, child custody issues, or pending well he or she could provide similar enforcement tends to discount alibis criminal charges that make them particu- details on short notice. from family and friends because they are larly concerned about contradicting the To test an alibi, the Reid manual perceived as biased.21 police narrative. If the case has received suggests the following: If the witness does provide an significant media attention, the witness alibi, police may not believe the wit- may be afraid of becoming part of the v ask the witness about a fictional ness.22 Disbelieving investigators may story. The witness may be afraid of disap- event, like a car accident, that sup- challenge the witness with coercive proval from the victim’s family or friends.30 posedly happened at the time and interrogation techniques23 or threaten If the defendant does not offer an place mentioned to see if the sus- the witness with perjury or obstruction alibi or police disbelieve the alibi wit-

NACDL.ORG JANUARY/FEBRUARY 2021 21 nesses, then the suspect becomes a uninformed assumptions about the may be able to defer notice until closer defendant. Now defense counsel must availability or import of that testimo- to trial. decide how to proceed. ny will not suffice.”35 Some jurisdictions permit defense In Skakel v. Commissioner, the counsel to suggest that witnesses not Alibis and the Defense Attorney Connecticut Supreme Court set out talk to the prosecutor and/or police,38 An alibi is not a traditional affir- four factors to consider in reviewing but others view this as potentially mative defense — it is a response to the the reasonableness of trial counsel’s obstruction or tampering. Counsel prosecution’s case. Logically, an accu- decision not to investigate and/or pres- needs to be familiar with the ethics rate alibi means that the prosecutor’s ent alibi witnesses. They include: “(1) rules in their jurisdiction. witnesses have misidentified an inno- the importance of the alibi to the If the witness refuses to meet with cent defendant either through good- defense; (2) the significance of the wit- the prosecutor and/or police, expect faith eyewitness identification mistakes ness’s testimony to the alibi; (3) the the witness to be cross-examined or through deliberate lies by co-offend- ease with which the witness could have about this at trial. At minimum, coun- ers or cooperating witnesses.31 Alibi been discovered; and (4) the gravity of sel can suggest that if an alibi witness wants to talk to the police and/or pros- ecutors, then counsel can ask for any Even a strong alibi is not enough. One exoneree, interview to be recorded from start to finish so that there is an objective who could not have been at the crime scene because he record of what was said and how it was was attending a two-day sports competition, had 11 alibi said. Counsel can then request a copy of the recording through discovery. witnesses as well as credit card receipts for his travel, As discussed at the outset, offering an alibi defense is risky. While the jury meals, and trip purchases. The prosecutor successfully will be instructed that the defendant argued that the witnesses were liars or mistaken. does not need to prove the alibi is true and that the prosecutor must disprove it to prove its case beyond a reasonable defenses may work well when com- the criminal charges and the magni- doubt, jurors may nevertheless per- bined with arguments about mistaken tude of the sentence that the petitioner ceive the alibi as pitting the credibility eyewitnesses, lying informants, co- faced.”36 A trial attorney who ignores of the alibi witnesses against the pros- operating witnesses, and investigative these factors risks a finding of ineffec- ecutor’s witnesses.39 In some cases, failures or omissions, including a rush tive assistance of counsel. jurors may even be instructed that if to judgment and ignoring exculpatory Counsel should caution the defen- they find the alibi witnesses testified evidence in the investigation. But, as dant’s family or friends about seeking falsely, then they can infer the defen- noted at the outset, a weak alibi may out alibi witnesses or encouraging dant’s consciousness of guilt for man- divert the jury’s attention from a weak them to meet with defense counsel or ufacturing a false alibi. prosecution case. an investigator. The prosecution may Therefore, counsel needs to prepare Defense counsel is obligated to argue that the defendant’s allies pres- alibi witnesses to respond to typical ALIBI DEFENSES make all reasonable efforts to identify sured or influenced the alibi.37 Counsel cross-examination ploys.40 Expect ques- and interview potential alibi witness- should also warn incarcerated defen- tions about the following: es.32 This includes reasonable efforts to dants about trying to contact witness- identify and locate witnesses, even if the es themselves or discussing contacting 1. The witness’ relationship with the defendant does not know their full witnesses with family. Incarcerated defendant. names. “[C]ounsel reasonably cannot defendants’ phone calls and mail are limit the pretrial investigation of a case routinely recorded and monitored. A 2. The timing of the witness coming to only those leads offered by the client recording of a defendant’s call or copy forward. himself. … Counsel has an independent of a letter, seeming to create a false duty to investigate potentially impor- alibi, would be devastating to the v When did the witness realize the tant witnesses not suggested by the defense and may lead to additional defendant had been arrested? client, including, of course, potentially charges of tampering and/or obstruc- important alibi witnesses.”33 This tion of justice, as well as a jury instruc-  What does the witness means following those leads and docu- tion about consciousness of guilt. know about the crime? menting the results. Counsel should also look for any Commentators warn defense evidence to support the alibi — receipts,  Is the witness aware of counsel to “exercise extreme caution” security videos, and cellphone records, other incriminating infor- in choosing alibi witnesses and “take for example — and carefully document mation, such as a confes- pains” to ensure that the alibi witness’s how the supporting evidence was sion, eyewitnesses, or foren- testimony is consistent with other obtained and preserved. sic evidence? defense witnesses.34 However, “a deci- Once the defense becomes aware sion by counsel to forgo an investiga- of potential alibi witnesses, then coun- v When did the witness realize he tion into the possible testimony of a sel needs to review the jurisdiction’s could provide an alibi, and who potentially significant witness is con- notice of alibi rules and make sure to did he first approach? stitutionally impermissible unless comply with disclosure requirements. counsel has a sound justification for If counsel is not certain that he or she 3. If the witness did not go directly to doing so; speculation, guesswork or will offer an alibi defense, then counsel the police or prosecutors, why not?

22 NACDL.ORG THE CHAMPION 4. How is the witness sure about closing. Counsel should consider expert infancy. See Valentino-DeVries, Tracking the alibi? testimony about perception, memory Phones, Google Is a Dragnet for the Police, N.Y. (particularly autobiographical memo- TIMES (4/13/19) available at https://www.ny v Could the witness have con- ry), suggestion and after-acquired infor- times.com/interactive/2019/04/13/us/googl fused the day or time of day? mation, and good-faith mistake in e-location-tracking-police.html; Jon Schuppe, appropriate cases. Police Used Google Location Data to Find an v Does the witness have any sup- The exoneration cases show the Accused Bank Robber. He Says That’s Illegal, porting physical evidence? risks of presenting alibi witnesses, but ABC NEWS (11/20/19) available at https:// with solid preparation and an under- www.nbcnews.com/news/us-news/police v If there was supporting evi- standing of growing research into alibis -used-google-location-data-find-accused dence not under the witness’s and witness memory, perhaps the -bank-robber-he-n1086836. control, did he or she tell any- defense can do better. 8. Elizabeth Olson & Steve Charman, one about it? © 2021, Lisa J. Steele. All rights But Can You Prove It? Examining the Quality reserved. of Innocent Suspects’ Alibis, 18:5 PSYCH., CRIME The jury will be wondering about & L. 453, 459-64 (2012). See Scott Culhane et the witness’s motives, memory, and Notes al., Generation and Detection of True and whether he or she talked to police 1. See BRIAN CUTLER, CONVICTION OF THE False Alibi Statements, 20:4 PSYCH., PSYCHOL. & before trial.41 It may be more persua- INNOCENT 239-40 (2012); BRANDON GARRETT, L. 619 (2013); Jennifer Dysart & Deryn sive to explore those issues in direct CONVICTING THE INNOCENT 156-58 (2011); Strange, Beliefs About Alibis and Alibi examination rather than leaving these William Crozier, Deryn Strange & Elizabeth Investigations: A Survey of Law Enforcement, questions to the prosecutor in cross. Loftus, Memory Errors in Alibi Generation: 18:1 PSYCH., CRIME & L. 11, 13 (2012). Counsel may also wish to consider How an Alibi Can Turn Against Us, 35:1 BEHAV. 9. Outing, supra, note 4, at 522. The expert testimony about perception, SCI. & L. 6 (2017); Jennifer Dysart & Deryn defendant was arrested four days after a memory, and good-faith error to help Strange, Beliefs About Alibis and Alibi shooting. He could not recall where he the jury understand what it can realis- Investigations: A Survey of Law Enforcement, was during his interrogation. The next tically expect from an accurate, truth- 18:1 PYSCH., CRIME & L. 11, 11-12 (2012); morning, he provided police with a list of ful alibi witness. Elizabeth Olson & Gary Wells, What Makes a alibi witnesses. (He was incarcerated Counsel should also be alert dur- Good Alibi? A Proposed Taxonomy, 28:2 L. & overnight — there was no evidence that ing closing argument to attacks on the HUM. BEHAV. 157, 157-58 (2004). he’d had any contact with possible alibi alibi witness,42 vouching for the prose- 2. BRANDON GARRETT, CONVICTING THE witnesses before providing the list to cution’s witnesses, improper com- INNOCENT 156-58 (2011). police.) Trial counsel believed that ments on the prosecutor’s belief in the 3. 330 Conn. 520, 544 n.4, 198 A.3d 52 Outing’s inability to immediately provide alibi witness’s credibility, improper (2019). an alibi would undercut an alibi defense. suggestions that defense counsel has 4. 190 Conn. App. 510, 522, 211 A.3d 10. Fred Inbau et al., CRIMINAL offered a perjured alibi, suggestions 1053 (2019). INTERROGATION AND CONFESSIONS 18, 85, 156, that the witness had a duty to come 5. JENNIFER THOMPSON-CANNIO, RONALD 444 (5th ed. 2013). The manual suggests forward, and shifting the burden of COTTON & ERIN TORENO, PICKING COTTON: OUR that “[i]nformation that is volunteered proof to the defense. Counsel should MEMOIR OF INJUSTICE AND REDEMPTION 86 (2009). during a response to an open question — ALIBI DEFENSES object as appropriate to preserve the 6. In State v. Dickson, 322 Conn. 410, for example — a subject’s alibi — will record on appeal and ask the trial 141 A. 3d 810 (2016), the defendant first probably all be truthful, although perhaps court to act if it is possible to cure the learned he was a suspect in a murder incomplete,” and then gives an example of improper argument. when he was arrested 18 months after it a truthful answer implying an alibi, but not occurred. His mother and aunt repeatedly actually committing to it. Id. at 86-87. Conclusion told police that he was with them at a 11. Id. at 175-76. (The authors assume Alibi is an important defense for the sports bar on the night of the murder and that the suspect has a clear memory of innocent defendant. Prosecutors and asked them to contact the bar to see if it the evening and “there would be no judges are overly skeptical of alibi wit- still had video recordings to prove delay” in saying that the event did not nesses. Defense attorneys seem reluctant Dickson’s alibi. Police did not contact the happen. Id. at 76.) to offer all but the most rock solid of ali- bar, which had a fire six months after 12. Id. at 180. (“A person who has bis. The result may be a loss of accurate, Dickson’s arrest. related a truthful account,” it posits, “will truthful alibi testimony supporting 7. Alibis supported by strong physical have little difficulty doing this, because innocent defendants. evidence are rare. CUTLER, CONVICTION OF THE their memories are based on factual Defense counsel should investigate INNOCENT 240 (2012) (14 percent of alibis occurrences.” Id.). alibi witnesses — even if he or she is offered in survey of American and Canadian 13. Steven Drizen & Richard Leo, The skeptical about using an alibi at trial — cases were supported by physical evidence). Problem of False Confession in the Post-DNA and document that investigation. If This may be changing. Cellphone location World, 82 N.C. L. REV. 891, 915 (2004). counsel decides to present an alibi history, apps, and call records may document 14. Elizabeth Olson & Steve Charman, defense, then he or she should prepare a witness or defendant’s location at key times. But Can You Prove It? Examining the Quality the witness for contact from the prose- Admittedly, these locate the device, not who of Innocent Suspects’ Alibis, 18:5 PSYCH., CRIME cutor and/or police after disclosure and is holding it, but it may be persuasive & L. 453, 456 (2012). for inevitable cross-examination ques- corroboration even if not absolute. Smart 15. See Ricardo Nieuwkamp et al., A Lie tions at trial. Counsel should be pre- speakers and assistants that capture voices at and a Mistress: On Increasing the Believability of pared for a vigorous closing argument critical times would be harder to fabricate. Your Alibi, 23:5 PSYCH, PSYCHOL. & L. 733 (2016). and alert for prosecutorial misconduct Litigation about geo-fencing warrants 16. See Scott Culhane & Harmon or impropriety in cross-examination or (searches of past location history) is still in its Horsch, Changed Alibis, Current Law

24 NACDL.ORG THE CHAMPION Enforcement, Future Law Enforcement, and PSYCHOL. & L. 619, 634 (2013); Harmon Hosch threatened to withdraw witness’s plea Layperson Reactions, 39:7 CRIM. J. & BEHAV. et al., Effect of an Alibi Witness’s Relationship agreement in unrelated case if she testified 958, 974 (2012). to the Defendant on Mock Jurors’ Judgments, in support of defendant’s alibi); People v. 17. John Browning, Prosecutorial 35 L. & HUM. BEHAV. 127, 139 (2011) (subjects Pena, 175 N.W.2d 767 (Mich. 1970) (improper Misconduct in the Digital Age, 77 ALB. L. REV. more skeptical of kin than of those with for prosecutor to send alibi witnesses a letter 881, 889 (2013). social relationship); Scott Culhane & quoting the state’s perjury statute). See 18. See Jennifer Dysart & Deryn Strange, Harmon Hosch, An Alibi Witness’ Influence on generally Kevin Sali & John Robb, Fighting Beliefs About Alibis and Alibi Investigations: A Mock Jurors’ Verdicts, 34:8 J. APP. SOC. PSYCH. Governmental Witness Tampering, THE Survey of Law Enforcement, 18:1 PSYCH., CRIME & 1604, 1606-07 (2004) (mock jurors skeptical CHAMPION, June 2017, at 34 (potential alibi L. 11, 17-19 (2012) (in survey of police officers, of both kin and those with a personal witness might be told, for example, “that the less than half (49.2 percent) said that a relationship with defendant); Elizabeth investigation is still open, the prosecution thorough investigation of an alibi is always Olson & Gary Wells, What Makes a Good may ultimately bring charges against conducted before an arrest warrant is Alibi? A Proposed Taxonomy, 28:2 L. & HUM. additional suspects, and continuing to prepared or the defendant arrested, 38.1 BEHAV. 157, 159, 161 (2004). maintain that the defendant was somewhere percent said it is often investigated; 7.9 22. See generally D. KIM ROSSMO, CRIMINAL else sounds like the kind of thing an percent said it is sometimes investigated; INVESTIGATIVE FAILURES 282-83 (2009). See also accomplice would say”). and 4.8 percent said it is rarely or never BRANDON GARRETT, CONVICTING THE INNOCENT 266 25. See S.B. Marion et al., Lost Proof of investigated before the warrant is prepared (2011) (“[w]hen police form a hunch that a Innocence: The Impact of Confession on Alibi or the defendant is arrested). suspect is guilty, they may then without Witnesses, 40:1 L & HUM. BEHAV. 65 (2016) 19. Steve Charman et al., The realizing it discount any evidence that does (over half of witnesses retracted an alibi (Un)reliability of Alibi Corroborators: Failure not jibe with their prior belief in the when falsely told that an innocent to Recognize Faces of Briefly Encountered suspect’s guilt.”); Keith Findley & Michael confederate confessed). Strangers Puts Innocent Suspects at Risk, 35:1 Scott, The Multiple Dimensions of Tunnel 26. See Dickson, supra note 6, at 459 BEHAV. SCI. L. 16 (2017); see T. Gilovich et al., Vision in Criminal Cases, 2 WIS. L. REV. 291, where court discounted two alibi The Spotlight Effect in Social Judgement: An 329, 331 (2006) (the prosecutorial role witnesses because neither “testified Egocentric Bias in Estimates of the Salience of “inevitably fosters tunnel vision,” “ethical unequivocally that the defendant had One’s Own Actions and Appearance, 78 J. prosecutors feel a pressure to push hard to been in the sports bar with his family at PERSONALITY & SOC. PYSCH. 211 (2000) (people obtain convictions, because only a 9:30 p.m. on January 9, 2010, when the overestimate the extent to which others conviction serves the interest of justice”). crime occurred. Moreover, to the extent notice them). See also A. Daniel Yarmey, 23. See Laura Fallon & Brent Snook, that the testimony of the defendant’s Eyewitness Recall and Photo Identification: A Beyond Common Sense and Human mother and aunt would support that Field Experiment, 10:1 PSYCHOL., CRIME & L. 53 Experience: Lay Perceptions of Witness conclusion, both witnesses had a clear (2004) (discussing relatively poor witness Coercion, 47:2 CRIM J. & BEHAV. 208, 210 motive to attempt to convince the jury performance identifying a person they (2020) (“rampant” coercive interview that the defendant was in the bar at that briefly interacted with four hours earlier). methods used in Canadian case led to alibi time.” See also Johnson v. Commissioner, 20. R. Nieuwkamp, R. Horselenberg & P. witnesses recanting); Timothy Moore, Brian 330 Conn. 520, 198 A.3d 52 (2019) (jury Van Koppen, The Illusion of the Perfect Alibi: Cutler & David Shulman, Shaping Eyewitness could have concluded that defendant Establishing Base Rate of Non-Offenders’ and Alibi Testimony with Coercive Interview snuck out of house, committed crime at

ALIBI DEFENSES Alibis, 14 J. INVESTIG. PSYCH. OFFENDER PROFIL. 23 Practices, THE CHAMPION, October 2014, at 34 nearby location, and returned without his (2016). This study of over 800 volunteers (coercive techniques used in specific case absence being detected by busy family drawn from the community asked about lead to retraction from alibi witness). members); Spearman v. Commissioner, 164 their whereabouts no more than a week 24. See People v. Henne, 165 Ill.App.3d Conn. App. 530, 138 A.3d 378 (2016) earlier, 90 percent of subjects reported that 315, 326 (1988) (police arrested alibi witness (relatives’ alibi testimony in arson case they could support their alibi with at least and charged her with obstruction of justice; that defendant was asleep in his room one witness — 65 percent could provide a witness then hedged her previous answers. when fire was set would have left open motivated, familiar person, 16 percent The court faulted the defense for not calling possibility that defendant had set the fire could provide an acquaintance or stranger. the alibi witness at trial. “For all we know, she and run across the street to his home About 25 percent could provide an item of did not testify due to her susceptibility before the alibi witnesses first saw him physical evidence (typically a receipt); only of impeachment by her inconsistent there); LaPointe v. Commissioner, 316 7 percent believed they could find video statements, or was not called by the Conn. 225 (2015) (witness could not recordings to support their claim. Alibis defendant for fear of her truthful answers.”); provide “complete” alibi, because could were weakest at night and on the People v. Chen, 256 A.D.2d 75, 682 N.Y.S.2d not account for defendant’s whereabouts weekends — the times when a person was 145 (N.Y. 1998) (prosecutor’s interview with for 45 minutes while she was getting her most likely to be at home, with friends, or at alibi witness in which prosecutor explained son to bed, a period in which the crime a movie and strongest when the person the legal consequences of perjury did not could have occurred). was at work or in class. improperly intimidate the witness). But see If the police fail to follow up on alibi 21. See Jennifer Dysart & Deryn United States v. Vavages, 151 F.3d 1185, 1190- information, the defendant could combine Strange, Beliefs About Alibis and Alibi 91 (9th Cir. 1998) (prosecutor substantially an alibi defense with a claim of an Investigations: A Survey of Law Enforcement, interfered with witness’s decision whether to investigative failure or omission, arguing 18:1 PSYCH., CRIME & L. 11, 17 (2012) testify when warnings about committing that a jury that could find reasonable doubt (police least likely to believe friends and perjury were intimidating and intended to if jurors conclude that “the investigation family members, most likely to believe stifle witness’s testimony; prosecutor made was careless, incomplete, or so focused on acquaintances and strangers). See also Scott “an unambiguous statement of his belief the defendant that it ignored leads that Culhane et al., Generation and Detection of that [witness] would be lying if she testified may have suggested other culprits.” State v. True and False Alibi Statements, 20:4 PSYCH., in support of [defendant’s] alibi” and Wright, 322 Conn. 270, 322, 140 A.3d 939

26 NACDL.ORG THE CHAMPION (2016) citing Commonwealth v. Silva- successful habeas claims that trial counsel inconsistencies in the testimony of the Santiago, 453 Mass. 782, 801, 906 N.E.2d 299 was ineffective for not investigating or various alibi witnesses, since the claim of (2009). This may be especially important to presenting an alibi witness. alibi is subject to searching scrutiny”). counter jurors’ inherent belief that if a case 33. Skakel, supra note 32, at 55 (internal 41. The thrust of the cross-examination makes it to trial, then there is a reason not citations omitted). is often that the witness is lying for the to trust an alibi witness — if police had 34. Thomas Sullivan, Presentation of the defendant. See Stephanie Marion & Tara believed the alibi, the case would not have Defense, 62:2 J. CRIM. L, CRIMINOLOGY & POLICE Burke, False Alibi Corroboration: Witnesses progressed to trial. Samuel Sommers & Amy SCI. 153, 160 (1971). See Skakel, supra note Lie for Suspects Who Seem Innocent, Whether Douglass, Context Matters: Alibi Strength 32, at 64 (“[t]here is nothing as dangerous They Like Them or Not, 37:2 LAW & HUM. BEHAV. Varies According to Evaluator Perspective, 12 as a poorly investigated alibi. An attorney 136, 136 (2013) (62 percent of jury-eligible LEGAL & CRIMINOLOGICAL PSYCHOL. 41 (2007). who is not thoroughly prepared does a participants felt a biologically related alibi 27. See People v. Steede, 149 A.D.2d 744, disservice to his client and runs the risk of witness would be most likely to lie for a 540 N.Y.S.2d 528 (2d Dep’t 1989) (witness having his client convicted even [when] the defendant; 50 percent felt the same about explained that “there’s reasons why you prosecution’s case is weak”). someone related by marriage, and 32 don’t go down to that precinct to 35. Skakel, supra note 32, at 24-35. percent felt the same about witnesses volunteer, because if they see you in the 36. Skakel, supra note 32, at 37 (internal socially related to the defendant). Marion presence of other people, they may lock citations omitted). and Burke found that 23 percent of you up too for no reason.”). This is not an 37. Counsel should, of course, caution participants were willing to corroborate a unreasonable fear; Kory Wise, one of the both defendants and their families against false alibi, regardless of how much they defendants in the Central Park jogger case, actually tampering with witnesses or liked the suspect. Witnesses were less likely became a suspect and falsely confessed to evidence, obstruction of justice, and to lie when the witness had seen evidence the crime after having gone to the station perjury, which can lead to separate pointing to the suspect’s guilt than when as an alibi witness for Yusef Salaam. See prosecutions or arguments that such there was ambiguous evidence of guilt. generally Chris Smith, Central Park Revisited, efforts show consciousness of guilt. Alternately, the prosecutor may imply N.Y. MAGAZINE (October 21, 2002). 38. See Foster v. State, 35 So. 3d 112 (Fla. that the alibi witness has made a good- 28. 201 Conn. 289, 304, 513 A.2d 1226 Dist. Ct. App. 2010) (proper for attorney to faith mistake — confusing the date, time, (1986). A review of the Ghere briefs shows that give his office address as contact address location, or the identity of the defendant. this assertion is based on judicial experience; for alibi witnesses). See Steve Charman et al., The (Un)reliability neither party provided the court with 39. See, e.g., Spearman v. Commissioner, of Alibi Corroborators: Failure to Recognize research into how alibi witnesses behave. 164 Conn. App. 530, 548 n.12, 138 A.3d 378 Faces of Briefly Encountered Strangers Puts 29. People v. Conyers, 52 N.Y.S.2d 454, (2016) where defense counsel did not offer Innocent Suspects at Risk, 35:1 BEHAV. SCI. L. 458 (1981). alibi witnesses because: 16, 19 (2017); William Crozier, Deryn Strange 30. If an alibi witness comes forward & Elizabeth Loftus, Memory Errors in Alibi late, consider a motion in limine to preclude [It was] my fear ... that the jurors Generation: How an Alibi Can Turn Against cross-examination of an alibi witness about would potentially compare the two Us, 35:1 BEHAV. SCI. & L. 6, 10 (2017); Karim the timing of the witness disclosure until the — the two versions and see that Kassam et al., Misconceptions of Memory: prosecutor demonstrates that “the witness maybe [the petitioner’s] family had The Scooter Libby Effect, 20:5 PSYCH. SCI. 551 was aware of the nature of the charges a greater motive to protect him (2009) (motivation to recall does not help if

ALIBI DEFENSES pending against the defendant, had reason and * * * compare that [version to] the original event was not memorable). to recognize that he possessed exculpatory [the prosecutor’s witness’] motive 42. See People v. Henderson, 77 N.E.3d information, had a reasonable motive for for a couple hundred dollars 1046 (Ill. App. 2017) (alibi witness were as acting to exonerate the defendant and, and say, well, the [defendant’s credible as believing in “the Easter Bunny”); finally, was familiar with the means to make witnesses] have a greater motive State v. Lazo, 209 N.J. 9, 34 A.3d 1233 (2012) such information available to law and maybe water down the proof (prosecutor described alibi as “convenient”); enforcement authorities.” See People v. beyond a reasonable doubt Hamilton v. State, 396 P.3d 1009 (Wyo. 2017) Dawson, 50 N.Y.2d 311, 321 n.4, 406 N.E.2d standard and not hold the state to (alibi defense was “nonsense”). n 771 (1980). See State v. Bryant, 202 Conn. 676, that — to that high standard, so I 705-06, 523 A.2d 451 (1987); Commonwealth was — I made — you know, made About the Author v. Brown, 11 Mass. App. 288, 416 N.E.2d 218 the decision that it was — that we (1981). The witness should be questioned had done enough on cross- Lisa Steele is an appellate attorney in outside of the jury’s presence if there is any examination and didn’t want to Massachusetts and concern that the witness was reluctant to take that risk of — to having the Connecticut. She come forward because of otherwise jury water down the standard of is the author of inadmissible personal concerns or fear of proof beyond a reasonable doubt. Defense Counsel the defendant or victim’s family. And that was only made after — Playbook for Eye- 31. See Griffin v. Warden, 970 F.2d 1355, after the state rested. witness Identifica- 1359 (4th Cir. 1992) (“[e]yewitness tion Cases (NACDL identification evidence … is precisely the 40. See State v. Briggs, 179 Conn. 328, Press 2020). sort of evidence that an alibi defense 333, 426 A.2d 298 (1979) (“[w]here a NACDL MEMBER refutes best”); State ex rel. Wearry v. Cain, 161 defendant proposes an alibi as his defense, So.3d 620, 621-22 (La. 2015) (same). one permissible method of determining 32. Skakel v. Commissioner, 329 Conn. 1, whether the alibi was fabricated is to Lisa J. Steele 36, 188 A.3d 1 (2018); the Skakel case and inquire into the specific details and the Shrewsbury, Massachusetts Gaines v. Commissioner, 306 Conn. 664, 51 surrounding circumstances of the alibi on EMAIL [email protected] A.3d 948 (2012) are rare examples of cross-examination in an attempt to show

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