For the Defense - Vol. 7, Issue 1 - 10

pieces of information. He first needs to know precisely
when and where the crime occurred, in as much detail
as possible. Once he has that information, he needs to
recall his own location at that time, in as much detail
as possible. And then, the biggest challenge of all-he
needs to find witnesses or tangible evidence that can
corroborate his claim about presence at that other
location at the specified time.4
The Timeline
Nailing down the timeline for the crime itself begins
with reviewing statements found in the police report.
The police can document the time of the crime through
physical evidence, like surveillance video or phone
records, or live witness statements. The murkier the
timeline (or the larger the window) the harder it will
be for the accused to establish an alibi, because the
prosecution is likely to argue that the accused could have
been present at some point during that window even if
he was somewhere else at other points in the window.
Once the timeline for the government's case is shared
with the defense, the accused must account for his
own time during the period in question. The more time
elapses between the date of the crime and the date of
indictment, the harder this task will be, as memories
fade and physical evidence disappears.5
For that reason,
many defense attorneys advise that it is essential to ask
about their clients' whereabouts during the initial client
interview, or as soon thereafter as possible.
If an accused can pinpoint exactly where he was at the
moment the crime occurred, this would amount to a true
alibi. An accused with a true alibi claims, in essence, that
the laws of physics prevent him from being in two places
on the planet at the same time. But oftentimes the best
an accused can do is recall his location earlier that same
evening, or later that day. If that location is too far away
from the scene of the crime to have allowed him to be
in both places at both times, he has a " soft alibi " rather
than a true alibi. Police and prosecutors might go to
great lengths to defeat the logic of the soft alibi, testing
what the laws of physics (and common sense) might
allow. For example, in 1987, Fred Freeman was convicted
of the 1986 murder of Scott Macklem in Port Huron,
Michigan. Freeman was convicted despite the murder
being committed shortly before 9:00 a.m. and multiple
witnesses placing Freeman at noon at a karate dojo in
the Upper Peninsula of Michigan, over 400 miles away.
The State maintains that Freeman could have chartered
a plane to fly between the two locations despite there
being no records of such a flight and Freeman being on
welfare at the time.6
The Evidence
While the accused can testify as to his presence at an
alternate location, judges and juries are usually more
persuaded by testimony from third party witnesses
10 For The Defense l Vol. 7, Issue 1
and tangible physical evidence. [Police and prosecutors
consider alibi evidence too, but confirmation biases often
motivate them to challenge such evidence, rather than to
take it seriously.]7
Witnesses are the much more common
form of alibi evidence (physical evidence of the accused's
presence appears in only about 25% of cases in which
alibis are used8
than physical evidence, in terms of perceived credibility.
Those reviewing alibi claims are (and should be) on
the lookout for alibi witnesses who seem willing to lie
for the accused. In their efforts to distinguish between
" motivated " and " unmotivated " corroborators,9
for
example, participants in social science studies consistently
declared that family members and romantic partners
cannot be trusted to tell the truth. Witnesses with greater
" relational distance " 10
from the accused, such as coworkers,
neighborhood acquaintances or strangers, are
credited with more honesty. However, distant kinds of
witnesses can be harder to locate, and when found they
might be less likely to remember anything specific about
the accused's behavior.11
Because witnesses can be perceived as untrustworthy,
defense attorneys prefer to rely on tangible evidence to
establish the accused's location. Tangible evidence that
is produced by a third party and cannot be manipulated
by the accused is regarded as the best type of evidence
to use. For example, receipts, CCTV footage, and GPS
tracking devices all provide reliable indicators of where
the accused was at the time of the crime. Custody records
are also a good indicator of location; an accused who
can establish that he was in jail or prison when the new
crime was committed should be able to obtain a dismissal
or acquittal on those new charges. Shaun Thomas, for
example, was exonerated through records showing
that at the time of the murder he was alleged to have
committed, he was in juvenile hall after being arrested
for trying to steal a motorcycle.12
The strongest case emerges when live witnesses and
tangible evidence corroborate each other on the issue
of the accused's whereabouts. Consider the case of Willie
Veasy, who in 1993 was convicted of murdering John
Lewis in North Philadelphia in 1992. Veasy was originally
convicted despite his timecard showing that he clocked
into work as a dishwasher at a Houlihan's Restaurant
hours before the murder and clocked out hours after the
murder. In 2019, Veasy was exonerated in part based on
statements from his supervisors that he could not have
slipped out of work on a busy Friday night without his
absence being noticed.13
Trial Litigation Issues
Complying with Alibi Notice Rules
Pursuant to Pa.R.Crim.P. 567, an accused who intends
to offer an alibi defense at trial shall file an alibi notice
with the clerk of courts not later than the time required
), but witnesses are also more problematic
For the Defense - Vol. 7, Issue 1

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