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Alibi Witness Excluded Due to Lack of Notice

A person hoping to rely upon an alibi defense in a criminal case should be aware that the state may be entitled to pre-trial notice of any witnesses the defense intends to use to establish it. This allows the state a fair opportunity to investigate the claim. Generally, an accused does not have to disclose his or her defense before trial, or disclose what witnesses will be called. But alibi is an exception, when relying upon witnesses other than the defendant to establish it. Under the Tennessee Rules of Criminal Procedure, when the state specifically requests notice of an alibi defense, a defendant is required to provide notice, or risk not being allowed to present those witnesses at trial. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), a defendant was not allowed to present an alibi witness, due to failing to provide the requested notice about the intent to use that witness.

In the Harding case, the defendant was ultimately convicted of six counts of aggravated statutory rape, based on six separate incidents involving one sixteen year old female in January and February 2009. Not all of the counts alleged a specific date. But one did specifically allege an incident on February 18, 2009. On the morning of the first day of trial, the defense announced they intended to call the Defendant's wife's brother as a witness to testify that he was with the Defendant all day and evening on February 18, 2009. When asked by the trial court how he was able to remember that specific date, the witness said it was because he had discussed it with the Defendant. But although the state had filed a written request for notice of an alibi defense, no notice had been provided until the morning of the first day of trial. As a result, the trial court declined to allow the testimony at trial. The defendant was convicted of six counts, for which he received sentences of four years each, to be served consecutively, for a total effective prison sentence of twenty-four years.

The Defendant did not argue the exclusion of this witness at the motion for new trial. So that in itself resulted in the issue being waived as an appellate issue. And the Court of Criminal Appeals found no basis to consider it under plain error review.

For more information regarding the presentation of an alibi defense at trial, contact Hindman & Associates.

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