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Basic Alibi Rules in Georgia

by merlin on July 16th, 2014
  • Sumo

The use of an alibi (the “some other dude done it” defense) is governed in Georgia by Section 17-16-5 of the Official Code of Georgia, which states the duties of the State and the Defense pretty plainly:

(a) Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant 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, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.

(b) The prosecuting attorney shall serve upon the defendant within five days of the defendant’s written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.

(c) If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.

(d) Upon a showing that a disclosure required by this Code section would create a substantial threat of physical or economic harm to a witness, the court may grant an exception to any of the requirements of subsections (a) through (c) of this Code section.

(e) If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney may offer any other evidence regarding alibi.

The genuinely important part of that section is subsection (b), because that “shall” has been litigated, and the Court found that the State has a mandatory duty to play fair with the Defendant and disclose their evidence under the statute.  In 1999, the Georgia Supreme Court decided White v. State, 271 Ga. 130, in which it expressly talked about the issue of fairness to the person accused of a crime by pointing out that the failure of the State to comply with those mandatory rules (after it has received the notice of alibi described by statute) does not demand a verdict of acquittal, but rather it can mean a continuance, or even exclusion of evidence:

Lawrence E. Maioriello, Augusta, for appellant.

        Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

        FLETCHER, Presiding Justice.

        We granted certiorari to consider the scope of the state’s obligation under OCGA § 17-16-5(b) to make a written response to a defendant’s notice of alibi. We hold that the statute imposes reciprocal obligations and therefore disapprove the Court of Appeals of Georgia’s contrary holding.1 Nevertheless, we affirm the conviction because the defendant failed to object to the state’s rebuttal witnesses.

        A jury convicted Ernest Ray White of aggravated assault, burglary, and kidnapping with bodily injury. Prior to trial, White gave written notice to the state of his intention to offer an alibi defense. The state did not provide White with a written response regarding the witnesses it planned to call to rebut the alibi defense. White moved for directed verdict, contending that the state failed to rebut his alibi defense. The trial court denied the motion and the court of appeals affirmed, holding that the victim’s identification of White as her attacker was sufficient to rebut his alibi defense.2 The court of appeals also held that the state had no obligation to file a reply to White’s alibi notification because OCGA § 17-16-5 is solely a means of discovery by the state.3

        1. OCGA § 17-16-5 was enacted in 1994 as part of a comprehensive act to broaden discovery in criminal cases.4 The purpose of the act is to prevent surprise and trial by ambush and reduce the caseload of the criminal trial courts.5 To achieve this goal, the act imposes an affirmative duty on both the defendant and the state to disclose specific information. Upon a demand by the state, OCGA § 17-16-5(a) requires the defendant to disclose in writing an intention to rely upon an alibi defense. The written notice must be specific with regard to the place the defendant claims to have been at the time of the alleged offense and must provide the names, addresses, dates of birth, and telephone numbers of the witnesses upon whom the defendant intends to rely.

        Once the defendant has provided this notice, the state “shall serve upon the defendant… a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses … upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.” The use of the word “shall” indicates clearly that the state is required to file a rebuttal to the defendant’s notification.6 Because the court of appeals’ contrary statement ignores the plain language of the statute, we disapprove this holding.

        2. The state contends that it satisfied its obligation under OCGA § 17-16-5 because it had previously supplied a list of witnesses and the rebuttal witnesses were named on that list. The statute, however, is concerned not with witnesses generally, but with witnesses who will testify regarding the alibi defense. Requiring specific disclosure of the witnesses upon whom the state will rely to rebut the alibi furthers the act’s purpose of preventing surprise and promoting fairness. Furthermore, a defendant who knows which witnesses will testify to rebut an alibi can more accurately assess the strength of his case prior to trial and may consider avoiding a trial through a plea bargain.7

          3. The state’s failure to comply with OCGA § 17-16-5 does not, however, demand that a trial court grant a defendant’s motion for acquittal. When the state fails to comply with any of the discovery provisions, OCGA § 17-16-6 provides remedies, which include the grant of a continuance and the exclusion of evidence. The record reveals that White did not raise the state’s noncompliance at trial. Therefore, White did not give the trial court the opportunity to exercise its discretion in formulating an appropriate remedy and cannot complain for the first time on appeal.

           4. The court of appeals reviewed the evidence under the proper standard and found it sufficient to support White’s convictions.

        Judgment affirmed.

        All the Justices concur.

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Notes:

        1. White v. State, 233 Ga.App. 24503 S.E.2d 26 (1998).

        2. Id. at 26, 503 S.E.2d 26.

        3. Id.

        4. 1994 Ga. Laws 1895.

        5. See Jeffrey A. Hannah, Peach Sheet, Criminal Procedure, 11 Ga. St. U.L.Rev. 137, 138 (1994) (discussing enactment of criminal discovery provisions).

        6. See Hardwick v. State, 264 Ga. 161, 163, 442 S.E.2d 236 (1994) (generally, “shall” is recognized as mandatory command).

        7. Hannah, Criminal Procedure, 11 Ga. St. U.L.Rev. at 154.

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