For the Defense - Vol. 7, Issue 1 - 11

for filing the omnibus pretrial motion provided in
Pa.R.Crim.P. 579 (within 30 days after arraignment, unless
exceptions apply). Under Rule 567(A)(2), " [t]he notice
shall contain specific information as to the place or places
where the defendant claims to have been at the time of
the alleged offense and the names and addresses of the
witnesses whom the defendant intends to call in support
of the claim. " Meanwhile, within 10 days after receipt of
the accused's alibi notice (unless exceptions apply), the
Commonwealth shall file and serve upon defendant's
attorney or a pro se defendant " written notice of the
names and addresses of all witnesses the attorney for the
Commonwealth intends to call to disprove or discredit
the defendant's claim of alibi. " 14
If an accused fails to file an alibi notice, the court will
However, she can still personally
prohibit her from calling witnesses to testify on her behalf
about her location.15
testify about her location and try to establish her alibi
through that testimony. Conversely, if an accused files
an alibi notice and then gives testimony that contradicts
the notice, the Commonwealth can use the notice to
impeach her. For that reason, defense counsel should
take care not to file the notice too early, because the
notice will effectively lock the accused into one particular
story about her whereabouts. Psychologists note that
memories can become more specific over time, but a jury
is likely to discredit an accused whose testimony diverges
from her original narrative.16
Investigating Potential Alibi Witnesses
The defense team would be wise to thoroughly interview
any potential alibi witnesses as early as possible, to gauge
their credibility before presenting them to the prosecutor
or to the tribunal. This professional mandate stems both
from the ethical rules governing attorneys and from the
desire not to appear foolish in trial when the prosecutor
trips up the alibi witness during cross-examination.
Model Rule of Professional Conduct 3.3(a)(3) states that
" [a] lawyer shall not knowingly ... offer evidence that the
lawyer knows to be false. " 17
Moreover, proof of solicited
In other words, the prosecutor
false alibi corroboration can be considered evidence of
consciousness of guilt.18
might argue that the defendant asked a friend to lie on
her behalf because she knew she was guilty and wanted
to avoid punishment.
But what if the attorney has his investigator interview
the alibi witness, the investigator and the attorney believe
her, then she testifies in a manner that turns out to be
false? While the consciousness of guilt argument can still
be made by the prosecutor, the ethical rules governing the
defense attorney differ. PA Rule of Professional Conduct
3.4(b) and the comment to Model Rule 3.3 address this
issue. The Model Rule, for example, states that the proper
course for defense counsel " is to remonstrate with the
client confidentially, advise the client of the lawyer's duty
of candor to the tribunal and seek the client's cooperation
with respect to the withdrawal or correction of the false
statements or evidence. " 19 If that effort fails and the
client refuses to allow her attorney to correct the record,
defense counsel should seek first to withdraw from
representation, but " [i]f withdrawal ... is not permitted
or will not undo the effect of the false evidence, the
advocate must make such disclosure to the tribunal as is
reasonably necessary to remedy the situation. " 20
Defense counsel cannot prevent her client from
testifying, even if the client indicates that she plans to
give perjured alibi testimony. But the attorney must not
knowingly participate in eliciting perjured testimony.
While the ABA has discouraged the practice, eliciting
testimony in narrative form " continues to be a commonly
accepted method of dealing with client perjury. " 21
Thus,
if a client refuses counsel's advice that she not perjure
herself regarding an alibi, defense counsel could call the
client, ask her a broad question such as, " What do you
wish to tell these jurors, " and allow the client to testify.
Foregoing a Potential Alibi Defense
When the client raises the issue of an alibi with
his attorney, " it is up to defense counsel to make a
judgment as to whether or not an alibi defense should
go forward. " 22
Attorneys are permitted to make strategic
decisions in their representation of clients, and those
strategic decisions include channeling energy into the
most persuasive defenses. After having her investigator
interview the potential alibi witnesses, an attorney might
decide not to pursue this defense " because it is weak -
where, for example, the witness cannot provide sufficient
detail, will say more harmful than positive things about
the defendant's behavior, or will directly contradict the
physical evidence. " 23
Sometimes an attorney will choose
not to present the alibi because she worries that jurors
will automatically discredit the defendant's witnesses
as having a motive to lie for him. Foregoing an alibi
defense in these circumstances would not count as a
transgression of professional norms, even if the client is
unhappy about it.
But a defense attorney who fails to investigate and/or
present an alibi defense might be accused of providing
ineffective assistance to her client, in violation of the 6th
Amendment. According to the Supreme Court's opinion in
Strickland v. Washington, to prove such a claim the client
must show both deficient performance and prejudice,
i.e., a reasonable probability of a different outcome had
the alibi witness testified on the client's behalf.24
These
claims are typically heard pursuant to the Post-Conviction
Relief Act in Pennsylvania, as a collateral attack on the
conviction after appeals have been exhausted.25
Considering first the error prong of the Strickland
test, ineffective assistance claims might stem from an
attorney's failure to investigate potential alibi witnesses
that the client mentions. An attorney cannot disregard
potential witnesses because she assumes that she knows
what they would say, and she has an affirmative duty to
Vol. 7, Issue 1 l For The Defense 11
For the Defense - Vol. 7, Issue 1

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