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11 Santa Clara Lawyer 155 (1970-1971)
The Alibi Witness Rule: Sewing Up the Hip Pocket Defense

handle is hein.journals/saclr11 and id is 173 raw text is: THE ALIBI WITNESS RULE: SEWING UP THE HIP POCKET DEFENSE There exists in California a critical deficiency in criminal procedure which allows implementation of a hip pocket defense, the fabricated alibi. The solution to this problem lies in the legislative enactment of a notice-of-alibi statute. Several states currently have alibi statutes in force. There are several points from these statutes that should be included in the formulation of an effective and work- able California statute. The critics of these statutes attack their constitutionality; however upon review they have withstood the careful scrutiny of the United States Supreme Court.' A significant advantage of the notice-of-alibi statute is a reduction of trial time and expense by elimination of frequent motions for continuances. The reciprocal nature of a notice-of-alibi statute provides extensive benefits for both the prosecution and defense and significantly improves the administration of criminal justice. Alibi witnesses have been used frequently and successfully as a defense in criminal actions. In such a defense the defendant estab- lishes that he was at a different location at the time the alleged crime occurred. He therefore argues that he could not have been the per- petrator of the crime.2 The defense of alibi is usually presented at the close of the trial after the state has presented its case. When this defense is fabricated and is presented at the last minute of the trial, the prosecution can be surprised, resulting in many unjust acquittals if a continuance is not granted. A half century ago the manufactured alibi was considered a primary loophole in the law.3 The perjury committed with this defense provides a major escape for guilty defendants; however a fabricated alibi would be virtually impossible if the prosecution had the time to make an adequate investigation into the credibility of the witness and the truth of the alibi assertion. A reasonable doubt can easily be aroused in a jury when they hear the testimony of an alibi witness that conflicts with the evidence of the prosecution. When this witness takes the stand at the last minute, the state has little or no opportunity to verify or refute the testimony. With advance knowledge of the alibi defense, the prosecu- tion could dismiss those cases in which the alibi is valid. If the alibi is fabricated, advance notice would enable the prosecution to prepare 1 Williams v. Florida, 90 S. Ct. 1893 (1970). 2 Logan v. State, 43 Wis. 2d 128, 168 N.W.2d 171 (1969). 3 Millar, The Modernization of Criminal Procedure, 11 J. CgRi. L.C. & P.S. 344, 350 (1920).

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