“Alibi” as a Defense to Criminal Accusations in California

Alibi as a defense

One of the strongest legal defenses to California criminal charges is establishing an alibi. This means you have evidence that you were not at the scene of the alleged crime when it took place and thus could not possibly have committed it.¹

The three “elements” of the alibi defense are:

1. You were somewhere else when the crime took place;
2. There was no reasonable opportunity for you to have committed the crime; and
3. There were no other means by which you could have committed the crime.²

Raising reasonable doubt

You do not actually have to prove you had an alibi: As a defendant in a criminal case, you never have to prove anything. The only party in your case that has the burden of proof is the state, which has to establish your guilt beyond a reasonable doubt.

Therefore, the purpose of raising the alibi defense is to show there is “reasonable doubt” that you were present when the crime took place. Then if the state fails to prove your guilt beyond a reasonable doubt, the jury is required by California Criminal Jury Instructions (CALCRIM) 3400 to acquit you.

In this way, the alibi defense is different from affirmative defenses like self-defense or duress. With affirmative defenses, you first have to prove by a “preponderance of the evidence” (that it is “more likely than not”) that the defense is applicable to your case before the jury can consider it.³

Criminal defense law firms routinely use GPS evidence to raise an alibi defense.

Evidence and examples

Typical evidence our California criminal defense attorneys rely on to show you had an alibi includes:

• timestamped video surveillance video of you somewhere other than the scene of the crime
• timestamped photographs and videos from people’s mobile phones that show you were away from the scene of the crime
• eyewitness accounts given under oath that you were somewhere else when the crime happened
• GPS records of your location at the time of the crime
• credit/debit card receipts from hotels, airlines, taxis, trains, stores, etc., that show where you were transacting business when the crime took place
• recorded communications such as texts, voicemails, and phone records indicating your location when the crime occurred
• statements from your boss that you were in the office when the crime took place

Example 1: You are accused of stealing a car in Los Angeles when you were in fact home. You have an alibi if we can present Ring video of you on your patio at the time of the theft. We could also present witness testimony of family members or neighbors who saw you at home.

Example 2: You are accused of rape in San Bernardino when you were in fact taking a road trip. You have an alibi if we can show that your car’s and phone’s GPS records put you away from the scene of the crime when it occurred. Receipts from the gas or electric charging stations you used would be helpful as well.

Example 3: You are accused of armed robbery in Riverside when you were in fact at a concert. You have an alibi if we can present video footage of you in the audience, your ticket stub, and your credit card bill showing you bought the ticket.

The notice requirement

Most California jurisdictions will not let you raise the alibi defense unless you give the District Attorney written notice of it ahead of time. Plus under Penal Code 1054.3 PC, we have to disclose to the D.A.:

• the evidence we intend to present at trial and
• the names and addresses of the witnesses we intend to call as well as their types of testimony.⁴

Although this “notice of alibi requirement” takes away the element of surprise during trial, it is actually a good thing: Often when the prosecutors review the strength of our evidence and witness list before trial, they may agree to drop your entire case. They know juries are unlikely to convict defendants with solid alibis.

In cases where you are under investigation but have not been charged yet, our criminal defense lawyers would engage in “prefile negotiations” where we show the District Attorney that you have strong alibi evidence. This could convince them not to prosecute you at all (called a “D.A. reject”).

How prosecutors fight the alibi defense

Once you claim at trial that you have an alibi, the District Attorney will try to refute your evidence. Typical prosecution strategies are:

• Subjecting your defense witnesses to aggressive cross-examination in an effort to impeach their credibility
• Calling their own rebuttal witnesses that claim you were at the scene of the crime when it occurred
• Presenting their own evidence that shows you were at the scene of the crime when it occurred

Note that if you failed to give the prosecution notice ahead of time that you were raising the alibi defense, they could ask the judge to strike that evidence as inadmissible – even if your evidence is compelling and proves your innocence.

Strong alibi evidence can create a reasonable doubt.

Related articles

• Accident defense
• Attorney-Client Privilege
• Entrapment
• Faretta Motion
• Intoxication defense
• Hearsay Rule
• Informants
• Mistaken eyewitness
• Mistake of fact defense
• Motion to Continue
• Romero Motion
• Subpoena Duces Tecum
• Spousal Privilege
• Waiver of Presence (misdemeanor)

Additional reading

For more in-depth information about the alibi defense under criminal law, refer to these scholarly articles:

•  The Strategic Use of Alibi Defenses – Alibis and Corroborators article that provides legal advice on how a defendant’s alibi can be best utilized during litigation.
• The Alibi Witness Rule: Sewing Up the Hip Pocket Defense – Santa Clara Lawyer article geared for a criminal defendant’s attorney.
• Memory Errors in Alibi Generation: How an Alibi Can Turn Against Us – Behavioral Sciences & the Law.
• Alibi believability: Corroborative evidence and contextual factors – Behavioral Sciences & the Law.
• Alibi Notice Rules: The Preclusion Sanction as Procedural Default – The University of Chicago Law Review.