“Although alibi is frequently characterized as a defense, it is in fact merely a rebuttal of the prosecution’s evidence. The defendant may not be required to ‘prove’ an alibi[.]” People v Burden, 395 Mich 462, 466 (1975). See Section 10.4(D) for more information on burden of proof.
MCL 768.20 requires the defendant to give written notice to the prosecuting attorney of his or her intent to offer an alibi:
“If a defendant in a felony case proposes to offer in his [or her] defense testimony to establish an alibi at the time of the alleged offense, the defendant shall at the time of arraignment on the information or within 15 days after that arraignment but not less than 10 days before the trial of the case, or at such other time as the court directs, file and serve upon the prosecuting attorney a notice in writing of his [or her] intention to claim that defense. The notice shall contain, as particularly as is known to the defendant or the defendant’s attorney, the names of witnesses to be called in behalf of the defendant to establish that defense. The defendant’s notice shall include specific information as to the place at which the accused claims to have been at the time of the alleged offense.” MCL 768.20(1).
Within ten days after receipt of the notice, but not later than five days before trial, “or at such other time as the court may direct,” the prosecuting attorney must file and serve on the defendant a notice of rebuttal containing the names of the witnesses the prosecuting attorney proposes to call to controvert the defendant’s alibi. MCL 768.20(2). Each party has a continuing duty to promptly disclose the names of additional witnesses that come to the respective party’s attention who may be called to establish or rebut an alibi. MCL 768.20(3). Additional witnesses not identified in the first notices may be permitted to testify if the moving party gives notice to the opposing party and shows that the additional witness’s name was not known when the notice required under MCL 768.20(1) or MCL 768.20(2) was due, and could not have been discovered with due diligence. MCL 768.20(3). “Due diligence is defined as doing everything reasonable, not everything possible[.]” People v LeFlore (After Remand), 122 Mich App 314, 319 (1983).
MCL 768.20 “leaves the trial court with considerable discretion to allow or disallow the testimony of rebuttal witnesses when a timely notice has not been filed[;]” however, “such a decision may be overturned upon review if the court’s discretion is abused.” People v Travis, 443 Mich 668, 679-680 (1993).
B.Failure to Provide Timely Notice
MCL 768.21(1) provides that if the defendant fails to give timely notice of his or her intent to raise an alibi as required under MCL 768.20, the court must exclude evidence offered for the purpose of establishing the alibi. Similarly, MCL 768.21(2) provides that if the prosecuting attorney has failed to give timely notice of rebuttal as required under MCL 768.20, the court must exclude that rebuttal evidence. Furthermore, MCL 768.21(1) and MCL 768.21(2) provide that even if timely notice is given by both parties, the court must exclude testimony from witnesses not particularly identified in the required notices.
Despite the language in MCL 768.21 indicating that the court “shall exclude” alibi or rebuttal evidence where the offering party has not complied with the notice requirements of MCL 768.20, the Supreme Court has held that the phrase “or at such other time as the court may direct[]” in MCL 768.20(2)1 “preserves the trial court’s discretion to fix the timeliness of notice in view of the circumstances.” Travis, 443 Mich at 678-679.
To determine whether an undisclosed alibi witness’s testimony should be admitted, the court should consider:
•the amount of prejudice that resulted from the failure to disclose;
•the reason for nondisclosure;
•the extent to which the harm caused by nondisclosure was mitigated by subsequent events;
•the weight of the properly admitted evidence supporting the defendant’s guilt; and
•other relevant factors arising out of the circumstances of the case. Travis, 443 Mich at 682.
“This test takes into account not only the diligence of the prosecution, but also the conduct of the defendant and the degree of harm done to the defense. It tends to protect the prosecution in cases where the defendant is at fault or where the defendant suffers little or no prejudice. At the same time, it tends to protect the defendant when the conduct of the prosecution unfairly limits the defendant’s choice of trial strategy[.]” Travis, 443 Mich at 683.
Even if timely notice of an alibi is not given, a defendant may nevertheless testify to an alibi without corroborative evidence, and is still entitled to an alibi instruction. People v McGinnis, 402 Mich 343, 345-346, 346 n 4 (1978).
C.Impeachment with Alibi Notice
Filing a notice of alibi defense does not require the defendant to proceed with that defense at trial, and no comment should be made by the prosecuting attorney or the court upon the failure to do so; “‘[s]uch comment is tantamount to shifting the burden of proof by allowing the jury to make adverse inferences from [the] defendant’s or the alibi witness’s failure to testify.’” People v McCray, 245 Mich App 631, 637 n 1 (2001) (citation omitted); see also People v Dean, 103 Mich App 1, 6-7 (1982).
However, if a defendant proffers an alibi, the prosecutor may comment on the defendant’s failure to produce corroborating witnesses, if doing so does not infringe upon his or her right not to testify. People v Fields, 450 Mich 94, 111-113 (1995). Similarly, a jury may be informed that a defendant’s alibi witness failed to come forward to inform the police of any exculpatory information; the prosecution is not required to establish a foundation for the admission of such evidence. People v Gray, 466 Mich 44, 46-47 (2002), citing People v Phillips, 217 Mich App 489, 494 (1996). In Gray, 466 Mich at 48, quoting Phillips, 217 Mich App at 495-496, the Court stated:
“‘A juror or other factfinder is certainly qualified to consider whether offered reasons for an alibi witness’ delay in coming forward make sense, ring true, or are otherwise persuasive. The timeliness of an alibi account may be highly probative of its truthfulness; it may, in fact, be the best or only way to determine whether the alibi is credible. A witness should not be able to take the timeliness issue from the factfinder by fabricating “good” reasons for not coming forward earlier. . . . The credibility of an alibi witness, regarding both the alibi account and the failure to come forward earlier with that account, should not be taken from the jury through the imposition of any special foundational requirement.’”
A notice of alibi constitutes an admission by a party opponent under MRE 801(d)(2)(c), and may be used to impeach a defendant’s credibility at trial when his or her testimony is inconsistent with the contents of the alibi notice. McCray, 245 Mich App at 635-637. This situation, however, is distinguishable from a situation in which “a prosecutor [improperly] attempts to comment on a defendant’s failure to put forth an alibi defense after he [or she] has filed a notice of alibi defense, or comment on the defendant’s failure to produce a witness listed on a notice of alibi, when the defendant has not presented an alibi defense.” Id. at 637 n 1 (emphasis added).
“Although alibi is frequently characterized as a defense, it is in fact merely a rebuttal of the prosecution’s evidence. The defendant may not be required to ‘prove’ an alibi[.]” People v Burden, 395 Mich 462, 466 (1975).
“Testimony in support of an alibi may accomplish no more than the raising of a reasonable doubt as to the sufficiency of the proofs connecting an accused with the crime alleged or render such proofs unsatisfactory. . . . In other words, an alibi may fail as a substantive defense and yet serve to raise a reasonable doubt as to the guilt of an accused.” Burden, 395 Mich at 466-467 (quotation marks, emphasis, and citation omitted).
“[If] any reasonable doubt exists as to the presence of the defendant at the scene of the crime at the time the offense was committed (if such presence is necessary to commit the crime), the defendant must . . . be acquitted.” Burden, 395 Mich at 467.
A defendant does not have the burden of proving his or her alibi defense, but a defendant does “ha[ve] the burden of producing at least some evidence in support of his claim of alibi, possibly sufficient evidence to raise a reasonable doubt.” People v Fiorini, 85 Mich App 226, 229-230 (1978).
E.Cross-Examination of Alibi Witness
No special foundation is required before cross-examining an alibi witness about the witness’s failure to come forward with the alibi information at an earlier time. People v Gray, 466 Mich 44, 49 (2002) (overruling the holding of People v Fuqua, 146 Mich App 250, 255-256 (1985), that the prosecution must first make a showing that it would have been natural for the alibi witness to tell his or her story to the police before trial).
M Crim JI 7.4 is the jury instruction for lack of presence (alibi):
“(1) You have heard evidence that the defendant could not have committed the alleged crime because [he / she] was somewhere else when the crime was committed.
(2) The prosecutor must prove beyond a reasonable doubt that the defendant was actually there when the alleged crime was committed. The defendant does not have to prove [he / she] was somewhere else.
(3) If, after carefully considering all the evidence, you have a reasonable doubt about whether the defendant was actually present when the alleged crime was committed, you must find [him / her] not guilty.” (Alterations in original.)
Where the defendant raises an alibi defense and requests the instruction, failure to give it is error requiring reversal. McGinnis, 402 Mich at 345-347. ”While a defendant’s general denial of the charges against him [or her] does not constitute an alibi defense, if a defendant gives specific testimony regarding his [or her] whereabouts at the time in question, it is alibi testimony the same as if another witness had given the testimony[.]” Id. at 346, citations omitted.
Failing to give an unrequested alibi instruction is not reversible error, “so long as the court gives a proper instruction on the elements of the offense and on the requirement that the prosecution prove each element beyond a reasonable doubt.” People v Burden, 395 Mich 462, 467(1975).
The decision of a trial court to permit or preclude alibi witnesses is reviewed for an abuse of discretion. See Travis, 443 Mich 679-680.
1 Although the Court in Travis, 443 Mich at 678-679, was specifically addressing the prosecutor’s rebuttal notice requirement under MCL 768.20(2), the similar phrase “or at such other time as the court directs[]” appears in MCL 768.20(1) (governing the defendant’s requirement to provide notice of the intent to raise an alibi defense).