In Martin v. State, decided July 17, 2019, the SC Supreme Court reversed the PCR Court’s denial of post-conviction relief, vacating an armed robbery and criminal conspiracy conviction based on trial counsel’s failure to present Martin’s alibi defense at trial.

What is an alibi defense, and do I have to tell the prosecution who my alibi witnesses are before trial? How do I establish an alibi defense at a PCR hearing when my trial lawyer didn’t call my alibi witnesses?

If you are facing armed robbery charges in Charleston, SC, or if you have been convicted and believe you have grounds for post-conviction relief, call our Charleston officenow to talk with an experienced Charleston, SC, criminal defense and post-conviction relief attorney.

What is an Alibi Defense?

What is an alibi defense?

An alibi defense is when you can establish, through witness testimony or other evidence, that you were not present at the scene of the crime and therefore could not have committed the crime.

To truly be an alibi, the timeline presented by your witnesses must be airtight. As the Court says in Martin, “[A] purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.”

Are Alibi Defenses Effective?

They can be.

On the other hand, it highlights one of the basic problems with criminal defense. Although we say the burden of proof is on the prosecution, is it really? Jurors expect you to prove that you are not guilty, but how do you prove innocence? How can you prove that you were not there? How do you prove a negative?

And, who is your alibi witness? Your mother? Your wife or girlfriend? Your best friend? Because these are the people you were most likely with at the time of the crime that you did not commit. At trial, you are going to hear the prosecutor ask these questions or a variation of them:

• You are telling the jury that Johnny was with you at the time of the murder?
• And you were 100 miles away from the scene of the crime?
• Exactly what time was Johnny with you?
• What was Johnny doing before he came to your house? After he came to your house? How do you know?
• Johnny is your son?
• You love your son?
• You don’t want your son to go to prison, do you?
• You would do anything to help your son, whom you love, wouldn’t you?
• You would lie for your son if that meant he doesn’t have to go to prison, wouldn’t you?

In many cases, it is not difficult for a prosecutor to cast doubt on your alibi witness.

Despite this, a solid alibi can make the difference between a wrongful conviction and an acquittal, and your attorney’s failure to call alibi witnesses at trial can be grounds for a reversal of your conviction.

Do I Have to Tell the Prosecution Before Trial?

Rule 5(e) of the SC Rules of Criminal Procedure requires you to tell the prosecution about any alibi witnesses before trial, including your location at the time of the crime and the names and addresses of your alibi witnesses:

(1) Notice of Alibi by Defendant. Upon written request of the prosecution stating the time, date and place at which the alleged offense occurred, the defendant shall serve within ten days, or at such time as the court may direct, upon the prosecution a written notice of his intention to offer an alibi defense. The notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

Why are you required to tell the prosecutor who your alibi witnesses are?

The prosecution would say it’s because they don’t want you to “spring” an alibi defense on them at the last minute. And, hey – if you have a solid alibi, we need to investigate it so we can dismiss your case if necessary…

The reality, however, is that it is unlikely the prosecutor will dismiss your case based on an alibi. By learning who your witnesses are before trial, including their addresses, the prosecutor now has the opportunity to go, with law enforcement, to interview your alibi witnesses before trial.

Will they politely ask questions like when was Johnny here and how do you know he was not at the scene of the crime? Probably not – it is just as likely that they will threaten your alibi witness with prosecution, attempt to get them to change their story, and attempt to get them to not testify on your behalf…

(Yes, these are all crimes. Obstruction of justice, witness tampering, and subornation of perjury, for starters. Who’s going to arrest the prosecutor, you?)

What is an Alibi Defense in a PCR Hearing?

If your trial attorney did not call your alibi witnesses at trial, and if there was not a very good reason for the failure to call your alibi witnesses, that may be grounds for post-conviction relief (PCR).

What is an alibi defense? It’s nothing if your lawyer doesn’t call the witnesses who can establish your alibi… It is ineffective assistance of counsel, and, if you can also establish prejudice that resulted from your attorney’s failure to call the witnesses, it is grounds to reverse your conviction.

Does My Alibi Witness Have to Testify?

In most cases, your alibi witnesses must testify at your PCR hearing:

If a PCR applicant claims trial counsel was ineffective for failing to interview or call alibi witnesses, then the “applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses’ testimony in a manner consistent with the rules of evidence.” Glover v. State, 318 S.C. 496, 498–99, 458 S.E.2d 538, 540 (1995) (emphasis added). “The applicant’s mere speculation what the witnesses’ testimony would have been cannot, by itself, satisfy the applicant’s burden of showing prejudice.” Id. at 499, 458 S.E.2d at 540.

The whole point is for the PCR judge to decide whether, if the jurors had heard the alibi testimony, there is a likelihood that the outcome would have been different. If the PCR judge doesn’t know what the testimony would have been, he or she cannot make that determination.

Can I Win a PCR Hearing if My Alibi Witness Does Not Testify?

On the other hand, there are some situations where your witnesses do not have to testify – as the Court noted above, it is enough to “otherwise introduce the witnesses’ testimony in a manner consistent with the rules of evidence.”

In Martin, for example, the PCR attorney did not call the alibi witnesses at the PCR hearing, but the trial attorney (as a witness at the PCR hearing) “candidly admitted his file contained the mother’s statement concerning the ‘around 11:15, 11:30 a.m.’ drop-off in Atlanta.”

The Supreme Court found that the fact that trial counsel knew of the alibi witness, knew that the alibi witness could testify to a specific timeline that was inconsistent with guilt, and failed to call the alibi witness was ineffective assistance of counsel.

Similarly, in Pauling v. State, the SC Supreme Court found ineffective assistance of counsel and prejudice where the “applicant presented ‘evidence as to the nature of the nurse’s testimony by introducing her [] notes,’ and even though the nurse may not have had an independent recollection of the case, ‘[her] notes . . . could have been used to refresh her recollection’ at trial).”

Criminal Defense and PCR Attorney in Charleston, SC

If you’ve been charged with a crime in the Charleston, SC area, call us before your trial. SC criminal defense lawyer Grant B. Smaldone represents clients charged with crimes in the Charleston, Georgetown, and Myrtle Beach areas.

If you have been convicted, and you believe you have grounds for PCR or a criminal appeal, call now at (843) 808-2100 or email us to talk to a Charleston, SC criminal defense and PCR attorney today.