[0:00]
In 1992, a 17-year-old female was raped after working a night time shift at McDonald's. She gave a description of her attacker to police and she said she recognized the man as a McDonald's customer from 3 weeks earlier. 3 days after the attack, she called the police saying that she saw her attacker in the McDonald's parking lot and 22-year-old Deon Herrol was subsequently arrested. Herrol said he was a frequent customer of McDonald's as he lived across the street. He insisted he was innocent and he presented an alibi. He said that at 
[0:30]
the time of the offense, he was playing basketball with friends including a police detective. Several of these people including the detective testified at his trial, but Herrol was found guilty anyway of second-degree sexual assault and spent 4 years in prison and two decades on the sex offender registry before he was exonerated with the use of DNA. Deon Herrol did not commit this crime and he provided an alibi as evidence that he was somewhere else when the crime occurred. Yet the police investigators as well as the jury did 
[1:03]
not see his alibi as credible. Why not? It may be surprising to you that the statement, quote, "An alibi is a good defense" is considered a myth by some lawyers and legal scholars. The myth of the alibi, they call it. Some defense attorneys even go so far as to believe that an alibi is without a doubt the worst possible defense to a criminal charge. This may come as a shock to most people. Alibis as seen in media, movies, cop again shows like Law & Order are often portrayed as the perfect antithesis to the smoking gun. A good 
[1:35]
alibi gets you off, or so they've said. That, however, is obviously not always the case. In about two-thirds of DNA exoneration cases, the innocent defendants offered an alibi which was not believed by law enforcement. Worse, weak alibis were then used by prosecutors as incriminating evidence at trial. The myth is not simply conjecture. It is supported by evidence. Recent studies from 2023 and 2022 found that in many cases where an alibi has 
[2:06]
been discredited for either lack of evidence, contradictions, or motive, the probability of a conviction is usually high. An alibi presented at all, some lawyers argue, even if an alibi is factually true, can almost guarantee you are convicted. The most cynical of those who believe the myth of the alibi conclude that unless you can document your alibi with records such as a passport stamp showing that you were out of the country at the time of the offense, you should consider not presenting an alibi at all. This is the 
[2:36]
Rebuttal podcast, and we are going to get into it. First, in a criminal case, the state has the burden to prove the charges beyond a reasonable doubt, and this burden is never supposed to shift to the defendant. It often does, however, when a defendant presents evidence of an alibi, even though the jury is in instructed not to do so, it invariably happens that if the alibi is not adequately established by the defendant, the jury, no matter how much they are instructed not to, concludes that the defendant must be guilty 
[3:07]
because he presented a phony alibi. To be clear, a phony alibi, or a weak alibi, or a discredited alibi is not evidence the defendant committed the crime they are actually accused of. For example, if I got my days mixed up about where I was 4 Tuesdays ago at 9:37 a.m., that doesn't necessarily make the government's case against me stronger, right? Juries often find that it does. By presenting the alibi, some say, the defendant in effect has needlessly 
[3:38]
shifted the burden to himself. Second, where are innocent people usually found? They are found with their family and friends, the very people who are not seen as credible witnesses because they have a strong motive to fabricate. At trial then, instead of the defendant poking holes in the state's evidence and in the state's case against them, it will be the prosecutor poking holes in the defendant's alibi. On the other hand, the New Jersey Supreme Court has said that, quote, "Few defenses have greater potential for creating reasonable doubt as to a defendant's guilt in the minds of the jurors than an 
[4:08]
alibi." But is alibi really a powerful defense or a risky gambit with a high likelihood of backfiring? Courts and prosecutors often contend that alibis are easy to manufacture and effective defenses. Alibi, some courts suggest, quote, "Has long been considered as one of the main avenues of escape of the guilty." Other courts refer to it as a, quote, "Hip pocket defense." because of the ease with which it can be manufactured for introduction in the final hours of the trial. But concerns about this alleged easy fabrication have 
[4:38]
mostly been done away with with notice of alibi rules such as Federal Rule of Criminal Procedure 12.1 that is found, likewise, in many jurisdictions, not just in federal courts. Defendants can no longer provide an alibi on the very last day of trial and essentially allow prosecutors to gather evidence to discredit it. So, which is correct? Is an alibi defense the key to the jailhouse door or a milestone around a defendant's neck? Quote, "Alibis always sound so delightfully healthy, but they 
[5:09]
crack up dreadfully easily. I'm not sure that I like cast-iron alibis. They're the sort that sink quickest to the bottom of the sea." I have had terrible eyesight since I was a kid, and for those of us who had to get glasses at a very young age, you probably still hold on to the [music] same crooked, scratched, hanging by a thread pair you've had for years. Because getting new glasses has always been a time-consuming, expensive activity you couldn't justify until your old ones were [music] beyond repair. But 
[5:39]
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[6:10]
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[6:42]
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[7:13]
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[7:44]
Defense attorneys frequently decline to offer alibi witnesses out of concerns that the jury will reject the defense after the prosecutor's clever cross-examination and summation, leading to the defendant's conviction. Appellate dockets frequently contain post-conviction cases arguing that trial counsel was ineffective for not investigating or not presenting alibi witnesses. These claims, however, are rarely successful. In Johnson versus Commissioner, a Connecticut case from 2019, trial counsel said, "Quote, my belief about alibis is that unless they are solid, they can get you into 
[8:15]
trouble. It's the last thing the jury hears if you have a good prosecutor who's a good cross-examiner and can try to kind of attack either a family member who's an alibi witness or some other vulnerability to the alibi. To me, it pulls attention away from the weaknesses in the state's case and it kind of develops jurors' focus on the weaknesses in the alibi. So, it's just been my practice to shy away from alibis unless they're solid and I had some concerns about the alibi in this case. Quote, there is nothing as dangerous as a poorly investigated alibi. An attorney 
[8:46]
who is not thoroughly prepared does a disservice to his client and runs the risk of having his client convicted even when the prosecution's case is weak. As I said, in about 2/3, 68% of the DNA exoneration cases, the innocent defendants offered an alibi which was not believed by law enforcement and weak alibis were used by prosecutors as incriminating evidence at trial. Fact-finders, juries, it seems, under believe alibi witnesses. Defense counsel's concerns seem validated and 
[9:17]
courts' fears about defendants lying or fabricating alibis seems oversated. Yes, an alibi can be fabricated, but so can almost all other testimony. Deciding whether an alibi witness is accurate and truthful is hard. It is easy for a suspect to make a good faith error about where he was when first confronted by police and easy for potential alibi witnesses to make good faith errors about the details of what was, for them, an everyday event. But, does defense counsel then abandon alibis unless they 
[9:47]
are complete and unequivocal based on strangers and supported by physical evidence? The question falls largely on defense counsel because alibi is a reaction to the prosecution. Defense counsel investigates alibi witnesses and looks for confirming evidence. Counsel decides whether to offer an alibi defense, giving appropriate notice, and chooses what witnesses to present and how. Only offering an alibi supported by physical evidence would mean very few alibis would ever be offered. Alibis 
[10:18]
supported by strong physical evidence are very rare. In 2012, only 14% of alibis offered in survey of American and Canadian cases were supported by physical evidence, but this may be changing. Cell phone location history apps and call records may document a witness' or defendant's location at key times. Admittedly, these locate the device, however, not who is holding it. But, it may be persuasive corroboration, even if not absolute. I would be interested to see what the updated numbers are in 2026 versus 2012 on the 
[10:51]
percentage of alibis that are supported by physical evidence, but you would be surprised even in the age of cell phones and data and all of that, it can be difficult to have a firm firm alibi supported by very very convincing physical evidence. More often than not, that is not the case. Further, the witnesses who are most likely to be believed are also the most likely to forget having seen the defendant. Per a study published in 2016, some innocent suspects often rely on the memory of strangers to corroborate their alibis. 
[11:24]
These researchers pointed out that no research had examined whether such potential alibi corroborators could accurately recognize an innocent suspect with whom they previously interacted. Thus, they developed a novel alibi corroboration paradigm in which undergraduate students, representing innocent suspects who would later provide an alibi, interacted with naive university employees, representing potential alibi corroborators. Each student briefly interacted with a different naive university employee and were also each yoked to a different employee with whom they did not 
[11:55]
interact. Employees represented 24 hours later with either a single photograph of the student or a six-person array containing a photograph of the student and were asked if they recognized anyone. The majority of employees failed to make a correct recognition of the student. False recognitions, however, were rare. Students exhibited overconfidence that they would be recognized. Findings imply that innocent suspects who rely on strangers to corroborate their alibis may be at risk. Quote, "My heart started pounding. I had 
[12:25]
gotten my weekends confused, which meant the alibi I gave to the police was not going to check out at all." Ronald Cotton, exonerated defendant in 2009. An innocent suspect may first learn that he or she needs an alibi when first questioned by police. Questioning may occur soon after the crime, when the suspect's memory of where he or she was should be fresh, but it may also occur days, weeks, or months later. The innocent suspect's memory of his or her whereabouts on a past day in time that had no significance until that moment may be wrong, but a good-faith mistake 
[12:56]
may be interpreted as a deliberate lie by a jury, prosecutor, law enforcement, or a judge. None of you should ever allow yourself to be questioned by police, no matter how innocent, no matter how guilty you are, without a lawyer present, without lawyering the hell up. But, people often don't do that, and as I will note soon, innocent people, especially, are the ones most at risk to inconsistent alibis. In practice, observers have noted that if a suspect being questioned by police 
[13:26]
offers an alibi, quote, the interrogator will attack it as inconsistent, contradicted by all of the case evidence, implausible, and or simply impossible, even if none of these assertions are true. Go back to the episode of this podcast titled The Dirty Liars to understand more intimately [clears throat] how the police are legally allowed to lie to you about almost anything, to any of us, about almost anything, including all of that. That's why why would they ever go, okay, yeah, let's check your alibi that right? They're of course going to try to get 
[13:57]
you to admit that you did the crime, make their jobs easier. Police are not paid to prove you innocent. Police are paid to paid to find the guilty party, regardless if you're guilty or not. Innocent suspects are more likely to waive their Miranda rights and talk to investigators. They believe, wrongly, that their innocence will be obvious to the investigators, and this same illusory aura of innocence may also affect alibi witnesses who expect that the truth of their testimony will be obvious to investigators and may be surprised when it is not. Do you see how 
[14:29]
alibis are are a bit of a booby trap here? We also have an episode on booby traps. We have an episode on anything and everything, don't we? We're getting up there, man. An innocent suspect may also likely have no experience with a serious felony investigation and is likely to be unfamiliar with techniques used by police to obtain admissions and confessions like lying to them. If you are a listener of this podcast, you will not be bamboozled by that because I've already warned you about it, right? This may make the suspect more anxious to offer an alibi without taking the time to verify it. Cotton, an innocent suspect arrested a few days after 
[15:00]
Jennifer Thompson was sexually assaulted, confused his weekends and gave police the wrong information about where he was. This is not unusual. Innocent suspects may not accurately recall where they were in the past, and do you, listening right now, couldn't either if I asked you where you were 3 months ago at 11:32 a.m.? Sure, you could through text messages. Sure, you could look through your emails. But unless you have hardcore camera security footage pinpointing you in a 
[15:31]
location and knowing even what location what location security footage you would even need to ask for, it's more likely than not that sitting on the other side of a table in front of the police, you would tell them something that might not be accurate or you may say, "Well, I'm not sure. I don't remember." And instead of that being a neutral answer, oftentimes jurors and police officers see that as you being deceptive and you concealing something or evidence supporting that you committed the crime. Despite the fact that memory is elusive 
[16:02]
and how am I supposed to know exactly where I was? But even if you can remember exactly where you were, even if I can say, "Yeah, I was sitting in my office editing a TikTok video." They would say, "Okay, what evidence do you have to support that?" I would say, "Um hopefully digital evidence, but if not, if that's useless, if that doesn't necessarily point to me being somewhere that it wasn't where the crime scene was, then I might be the only witness to where I might be the only witness to where I was." Not great. In one study, participants were asked to report their whereabouts on four particular times in the past, 
[16:34]
then given 48 hours to return with evidence of their whereabouts. In this low-stress, low-stakes test, over 1/3, 36.4%, were wrong about where they had been. Yet if a suspect in a high-stress, high-stakes interrogation room setting provides wrong information, law enforcement officers see this as a deliberate lie and as evidence of guilt. They shouldn't, but they do. Cotton, like other witnesses and like you, my listener or watcher right now, may have relied on a schema to generate this 
[17:05]
alibi. He recalled what he habitually did at that time on a weekend rather than recalling specifically what he did on that particular day. If he in fact did what he usually did, the alibi would be reliable, but if he did something different and had forgotten that he had deviated from his normal routine, then the alibi would not be accurate. And when police are unable to verify it, the suspect looks guilty. As noted previously, acquaintances and strangers may not recall interacting with the defendant. If the defendant overconfidently assumes that the witness 
[17:36]
will do so, then he or she may suggest alibi witnesses who don't recall them when contacted by an investigator, further heightening the doubt around the defendant's truthfulness. Despite the fact they probably were truthful or may have been truthful, but the witness just didn't remember. It should be a neutral fact, but it so often isn't. A study from the year 2000 concluded that people often overestimate the extent to which others notice them. Another study from 2004 discussed relatively poor witness performance, identifying a person they 
[18:07]
briefly interacted with just 4 hours earlier. If the alibi witness fails to remember a defendant when questioned, then the investigator may assume that the defendant lied to them and is guilty. The consequences of good faith mistakes are unfortunately very serious. Once a defendant makes a mistake, it may be near impossible for them to convince anyone of their innocence. Changes, even changes that genuinely strengthen the alibi, tend to weaken how jurors perceive it. Crazy town. It's not crazy 
[18:38]
when you really think about it, but I think that the myth of the alibi statement being so jarring to hear, right? do you mean? You're putting on proof of you being at a different location from where the crime occurred, yet pretty much everything, all of the empirical evidence, points to the fact that, "Hey, you should probably just let the prosecution be forced to prove their burden beyond a reasonable doubt and just shut your trap." Human nature is odd, isn't it? And human perception is odd. If a suspect hesitates, however, let's say across the interrogation 
[19:08]
table, wanting to think about where he or she was or to consult records like messages, timestamps on your phone to see where exactly you were. If you could remember messages, where you sent them, when you sent them. The prosecution may argue that the delay is a sign of deception, not an attempt to be accurate. Again, police are not paid to prove you innocent. Remember that. In Outing versus Commissioner, for example, the defendant was arrested four days after a shooting. Outing told police that when he was arrested, he did not recall where he was at the time of the murder. He provided police with a list 
[19:38]
of alibi witnesses the next morning. He was incarcerated overnight. There was no evidence that he had any contact with any possible alibi witnesses before providing a list to police, mind you. Trial counsel, however, believed that Outing's inability to immediately provide an alibi would undercut an alibi defense. Research on autobiographical memory suggests that people can respond quickly to questions about their past whereabouts with general details, but have a harder time recalling specific ones. Had Outing's attorney been more aware of the limits of autobiographical 
[20:09]
memory, she may have been able to defend Outing's delay in naming his alibi witnesses, possibly with the aid of expert testimony. Courts, like investigators, assume that innocent people should be able to provide relatively strong and accurate alibis quickly, which is a lot to ask of someone who, if indeed innocent, is recounting an otherwise ordinary or uneventful and unmemorable day or moment in time. This turns out to be untrue. Duh. Most people have trouble 
[20:41]
accurately recalling where they were in the past. The majority of a person's time, especially at night, on weekends, and during the holidays, is spent with friends and family, the weakest alibi witnesses. In State versus Dixon, the defendant first learned he was a suspect in a murder when he was arrested 18 months after it occurred. His mother and aunt repeatedly told police that he was with them at a sports bar on the night of the murder and asked them to contact the bar to see if it still had video recording to prove Dixon's alibi. Police never contacted the bar, which had a 
[21:12]
fire 6 months after Dixon's arrest. The Connecticut Supreme Court noted that, quote, "Neither of the alibi witnesses testified unequivocally that the defendant had been in the sports bar with his family at 9:30 p.m. on January 9th, 2010, when the crime occurred. Moreover, to the extent that the testimony of the defendant's mother and aunt would support that conclusion, both witnesses had a clear motive to attempt to convince the jury that defendant was at the bar at that time." In Dixon, the defendant's family believed that physical alibi evidence existed, but police did not try to obtain it before it was lost in a fire at the bar. Course 
[21:44]
they didn't. Don't piss me off. In a survey of police officers, so of course we have to ask them what they think. Less than half, 49.2%, said that a thorough investigation of an alibi is always conducted before an arrest warrant is prepared or the defendant arrested. 38.1% said it is, quote, "often investigated." 7.9% said it is, "sometimes investigated." And only 4.8% said it is, "rarely or never investigated before the warrant is prepared or the defendant is arrested." Telling the police about physical alibi evidence does not mean that it will be 
[22:14]
pursued. Clearly. Ugh. In Dixon's case, that's horrible. That's heartbreaking. To assume that's that's also a problem, right? Innocent people, people who are actually innocent innocent of events, will assume that police will do their jobs. They will assume, "Well, I don't have to get a lawyer, right? I I like they I told them to look at the videotape from the sports bar. They're going to look." Maybe again, their their job is not to prove you innocent. Hello. You need to retain someone whose job it actually is to do that. And get a copy of that stuff just in case, right? You 
[22:44]
never want to assume everyone's ill intentions and bad will, but absolutely you always want to prepare for the worst case scenario. Which inherently does force you to assume the worst in people and police. Very often turns out to be true. Note that if the police fail to follow up on alibi information, the defendant could combine an alibi defense with a claim of an investigative failure or omission, arguing that a jury could find reasonable doubt if jurors conclude that {quote} the investigation was careless, incomplete, or so focused on the 
[23:15]
defendant that it ignored leads that may have suggested other culprits. This may be especially important to counter one of my biggest gripes, to counter jurors' inherent belief that if a case goes to trial, there is a reason not to trust an alibi witness. If police the alibi, the case would not have progressed to trial. That is unfortunately the default assumption of so many people, and it is my biggest pet peeve. Oh my goodness gracious, enough enough enough. And we should just believe everything the police believe. I have a new cat in the room, if anyone watching on YouTube can see. We 
[23:46]
previously just had my co-counsel Dewey here next to me, PTFO, passed out, shifting around from time to time in his beautiful little contraption that moves. And Simba uh waltzed in back there because he felt left out. He is the older one, Dewey is only just about a year old, Simba is almost eight, and Simba is has all the attitude of the world. He He is His attitude is coming from all the orange on him, which isn't a lot of orange. But it it it's because it mostly went into his 
[24:17]
state of mind, his sassiness, if you will. But he was also raised by me. So. Really, who can we blame? Probably me. Really, who can we blame? Probably me. >> [snorts] >> Right. Well, the fact that comparatively few cases are dismissed as a result of pre-trial investigation is entirely consistent with our notion of alibis, that they are usually false, which sucks, you guys. They aren't usually false. We shouldn't assume that. We should take every alibi for face value on a case-by-case basis without any of these inherent biases in the past, 
[24:48]
without thinking of all of the episodes of true crime or all of the famous trials of horrible serial killers who also presented alibis that turned out to be shambly. Like, hello. God, we should come to trial bearing in mind the issues and inconsistencies and imperfectness of human memory, period. Memories about your own actions, memories about a stranger's actions for sure. But, no. Oftentimes, juries don't. And that is why the myth of the alibi is more truth than allegory. But, there is another 
[25:19]
explanation to possibly explain why even potentially an airtight alibi wouldn't necessarily mean a prosecutor is going to dismiss the case. And that is tunnel vision and investigative bias. Once prosecutors have filed charges and begun to prepare their case, they have likewise concluded that the defendant is guilty. Quote, when police form a hunch that a suspect is guilty, they may then, without realizing it, discount any evidence that does not jibe with their prior belief in the suspect's guilt. Another quote, the prosecutorial role 
[25:50]
inevitably fosters tunnel vision. Ethical prosecutors feel a pressure to push hard to obtain convictions because only a conviction serves the interests of justice. But, wrongful convictions, they don't really factor in to that outcome, to that decision-making, to that conclusion, right? Why would we care about a wrongful conviction? A conviction period, baby. That's all we need to say that it was a job well done. This is why I could never be a prosecutor. I know that prosecutors 
[26:20]
follow me, listen to this podcast. Um I just I I I in a documentary uh The Jinx, uh if you've seen it, it is a six-part series, and one of the defense attorneys, it's in episode one, is talking about, right, their background. And they said, "You know, I spent x amount of years as a prosecutor before I finally saw the light." Finally seeing the light. I hope that more prosecutors do. But, if you're a prosecutor and you want to wax poetic in my comments, you know, that's fine. My subjective opinions based on 
[26:53]
fine. My subjective opinions based on >> [laughter] >> research and evidence and statistics and studies and my own experience with prosecutors generally and also my relationship to being a defense attorney. Well, everything about me screams defense, okay? So, don't get offended. It is not always a personal attack, my god. And And to add to the disappointment and inherent side-eying we are doing to the system, similar confirmation bias issues may affect judges considering the effect of alibi witnesses on the strength of the prosecution's case on appeal and whether 
[27:25]
trial counsel was ineffective for not pursuing or offering alibi witnesses in a habeas case. If the police or prosecutor are convinced that the defendant is guilty, then the alibi witness must be either liars or wrong. Disbelieving investigators may subject alibi witnesses to coercive interrogation [snorts] methods, which may pressure witnesses to retract or hedge the alibi. Police or prosecutors, and this isn't conjecture, either. This is Hey, so this has happened before enough that we're going to we're going to make a note of it here. Police or 
[27:57]
prosecutors may threaten alibi witnesses with prosecution for perjury or obstruction of justice. Accurate, truthful witnesses may be intimidated and either hedge or retract their statements. For example, in Illinois in People versus Hen in 1988, the police arrested an alibi witness and charged her with obstruction of justice. The witness then hedged her previous answers. The court faulted the defense for not calling the alibi witness at trial, quote, "For all we know, she did not testify due to her susceptibility of impeachment by her inconsistent statements or was not called by the 
[28:28]
defendant for fear of her truthful answers." And also note, over half of witnesses, alibi witnesses, retracted an alibi when falsely told that an innocent confederate confessed. Falsely told. So, again, the police can lie to you about literally almost anything. Uh and if you are the alibi witness and the police say, "Hey." So actually they literally confess to it. They say, "Oh, okay. Then never mind. I must have been wrong. Bye." And then that is considered an inconsistent state. Like I just I 
[28:58]
Ooh, I hate that. I hate that. Even more subtle methods can lead witnesses to retract an accurate truthful alibi. Witnesses exposed to incriminating information may doubt their own memories or fear being seen as lying for the suspect and prosecuted and soften or retract an alibi. Both truthful and false alibi witnesses may not recognize or respond when police test them with altered versions of earlier alibi statements, which police do intentionally to try to set the scene, lay the foundation to be able to at trial say, "Look how inconsistent all your statements were." 
[29:30]
reality the police were just twisting their words a million times at the point where they were like, "Wait, what?" Like police intentionally confuse alibi witnesses because again, like I said previously, convictions, prosecutors believe achieve justice. Not rightful believe achieve justice. Not rightful ones. Not honest ones. Just convictions. Wrongful or not. And you would think, "Oh, well, if they really did see that person at that time, if they really weren't lying, well, wouldn't they notice? If this is so important to them, they're going testifying in court, 
[30:00]
that's not something that typically a lot of people do all the time. Wouldn't they totally notice little changes that the police made to their statements in a study conducted in 2016, it found that both truthful and false witnesses were largely blind to alterations of their alibi statements when interviewed a few days later, leading to the appearance of inconsistency for both kinds of witnesses. In another study in 2019, similarly showed that untruthful witnesses were slightly better than 
[30:32]
truthful witnesses at noticing alterations to their prior statements. Guilty suspects are not easier to mislead than innocent ones. Period. Highlight underlined text on the screen, bold it, tattoo it, motif it, crochet it, cross stitch it. Guilty suspects are not easier to mislead than innocent ones, which no prosecutor or police officer would agree with you on, but it's not an opinion. This is based on empirical evidence, babes. And this is not recent news. This isn't 
[31:04]
even, oh, 2016, 2019 news. In 1971, an esteemed law review article titled Presentation of the Defense warned that, quote, the subtle pressures that the subsequent interview by the police or prosecutor may bring to bear on the witness may disturb the certainty of the witness's recollections and engendered changed testimony at trial. We've been knew, baby, okay? For quite a long time. And unfortunately, that knowledge, that research, the empirical information, the studies, the surveys, 
[31:34]
perceptions, and cognitive psych, and sociology, even socialization, interpersonal communication, from every single area. They are conducting these studies and and handing it over to the legal field and going, is this helpful? And if that's true, you say yes, and the police and prosecutors are not also on the hook to be forced to incorporate the hook to be forced to incorporate these these realities into their work. They continue to make the same quick, premature judgments against defendants. And and it leads to premature narrowing 
[32:06]
of a suspect list, of of committing so much of a case's resources, investigations resources to proving one person guilty, getting a conviction, as opposed to investigating the actual crime, and actually seeking the justice, and achieving the justice that the victim deserves, or that the public and society need and and wants. One prosecutor's remark to the press in 2013, quote, "Unless I could break this guy's alibi, a murderer might be walking 
[32:37]
on the street. There was such a small window of opportunity, I had to act fast. Sometimes, alibi witnesses do not go to the police and instead go to the defendant's family or defense counsel. In State versus Gear, the Connecticut Supreme Court stated that, quote, "Although we do not believe that an alibi witness has a duty to report an alibi story to the police or for that matter to any other person, a witness in many instances naturally may be expected to convey such information, especially when the witness is friendly with the accused. Failure of the witness to do so 
[33:08]
would under those circumstances constitute grounds for impeachment because the failure to report an alibi under such circumstances is relevant to the issue of credibility or more specifically the issue of fabrication." A review of the briefs in the case that I just quoted from, State versus Gear, it shows that this assertion by the court is based entirely on judicial experience. Neither party provided the court with research on into how alibi witnesses behave. That case was from 1986, by the way. The Gear opinion is akin to the historical belief discussed 
[33:39]
a decade later in State versus Troop that, quote, "Any normal woman, oh, I'm so pissed. Any normal woman, quote, any normal woman would report a rape soon after its occurrence." The clear implication of this assumption was that if the woman did not complain, it was likely that no rape had occurred. I, as we know a million times over, that is so violently incorrect. It's because police so often do not adequately investigate, they disbelieve women, they do not get 
[34:11]
justice for these victims and it and it's so It is so much more likely that they will be even more traumatized, revictimized by even the process of investigation that could result in nothing happening to the person who who assaulted them. Uh that that they're they All they want to do is put it behind them. Like, what? I could sit I could do a whole episode of just about that. But um I hope that all of you who listen to this podcast are adult enough to know how batshit [ __ ] crazy it is that that is actually a sizable sentence in a 
[34:42]
court opinion. And we wonder why rape culture exists. The troop court recognized that quote indisputably one of the historic premises of the doctrine that it is natural for the victims of a sexual assault to complain promptly following the assault has been discredited substantially in contemporary times. The overwhelming body of empirical studies data and other information establishes that it is not inherently quote unquote natural for the victim to confide in someone or to disclose immediately following the commission of the offense that he or she was sexually assaulted. Thank you. Alibi research however does 
[35:12]
not yet have an overwhelming body of empirical studies about witness behavior but there is enough research to suggest that Gear's assumption is flawed and should be abandoned of course that oh alibi witnesses who wouldn't want to go to the police we're obviously going to discredit them right? And I hope that Hey maybe this episode will inspire someone to add to that body of empirical evidence with respect to alibis and alibi witnesses and the presentation of that defense so that we can get even more support 
[35:42]
for modifying how juries believe or disbelieve alibis and and alibi testimony. Woof. A witness may be afraid to get involved in a criminal case or to go to the police or prosecutors as one court observed quote it is a lamentable but undeniable fact of modern society that some of our citizens harbor a mistrust for law enforcement which leads them to shun contact with the police even when the avoidance of contact is not in their own best interest. Absolutely. As a witness explained in people versus Steed 
[36:14]
in 1989 in New York quote there's reasons why you don't go down to that precinct to volunteer because if they see you in the presence of other people they may lock you up too for no reason. That was not and still is not an unreasonable fear. Korey Wise, one of the defendants in the Central Park Five case, became a suspect and falsely confessed to the crime having gone to the station as an alibi witness for Yusef Salaam. Witnesses may be afraid of the police in general, not just in relation to the specific case they have someone's alibi for, or may have 
[36:46]
immigration issues, child custody issues, or pending criminal charges that make them particularly concerned about contradicting the police narrative. If the case has received significant media attention, the witness may be afraid of becoming part of this story and having their name connected with the case for all time. The wit- The witness may also be afraid of disapproval from the victim's family or friends. Witnesses may believe that once the defendant has been arrested, going to the police or prosecutors, even with a strong alibi, will not lead to the end of the case. The further along the case is, the less likely it is that exculpatory evidence would lead to a dismissal instead of 
[37:17]
giving the prosecutor time to prepare an attack on the evidence. No empirical research exists to suggest that alibis presented early in the criminal investigation process are better for an innocent suspect. Now, as for potential alibi witnesses and defense counsel, they are your defense attorney is obligated to make all reasonable efforts to identify and interview potential alibi witnesses, even if they don't ultimately put on that evidence at trial. They should make every reasonable effort to investigate any alibi you try to put forth, right, with them as you're 
[37:49]
planning your defense. This includes reasonable efforts to identify and locate witnesses, even if the defendant doesn't know their full names. Quote, "Counsel reasonably cannot limit the pre-trial investigation of a case to only those leads offered by the client himself. Counsel has an independent duty to investigate potentially important witnesses not suggested by the client, including, of course, potentially important alibi witnesses. A decision by counsel to forego an investigation into the possible testimony of a potentially significant witness is constitutionally impermissible unless counsel has a sound justification for doing so. Speculation, 
[38:20]
guesswork, or uninformed assumptions about the availability or import of the testimony will not suffice. Extremely important rule, and defense counsel, right, are held accountable. Prosecutors are not. Once counsel learns of an alibi or alibi witness, he or she must consider whether the jurisdiction has a notice of alibi defense requirement, and if so, when it must be complied with. Notice of alibi rules were enacted in the early 20th century and dramatically reduced the use of alibi defenses at trial. Quote, "Convictions where an alibi was offered 
[38:52]
had greatly increased since passage of the act. In one survey of prosecutors, 81% of respondents said that alibis were, quote, only occasionally successful. 11% said that they were successful about half the time. Only 8% recorded more frequent success." But, as we have suggested in this episode, this decline may not have been entirely due to deterring false alibis, but could include accurate, truthful alibi witnesses deterred by prosecutor or law enforcement questioning, interrogations, right? That prevented them or deterred 
[39:24]
them from giving strong testimony or deciding to testify at all. Notice of alibi rules were again enacted to try to combat what they, lawmakers, {question mark} prosecutors, {question mark} judges, {question mark} perceived as false alibis. Not really any empirical evidence to support that was such a widespread problem. The decline in the use of alibis after they were like, "Oh, we did it, guys. We got them." We we fished out, we weeded out all the false alibi people. No, you just made it much 
[39:55]
harder for a witness to want to come forward because they're going to be interrogated and intimidated by the police beforehand, for sure. Like, here's all of the full name, full government names and addresses of all of the alibi witnesses we plan to call. Have at it, right? Which, you know, I don't think I I think is not a bad rule, but the way that it's been used to kind of say, "Oh, look, we've prevented false alibis. It's just It's just coconuts, in my opinion." Prosecutorial misconduct and witness tampering, witness intimidation, intimidation 
[40:26]
period, undue duress being placed on witnesses, on defendants, on suspects is not new and also has never stopped. That's a fact. For example, a law review article in 2014 called Prosecutorial Misconduct in the Digital Age cited a case in which a prosecutor created a false social media identity and engaged in social media chats with alibi witnesses to persuade them to recant their alibi. What? The reality that it is much easier 
[40:59]
for an alibi witness to recant their testimony, to be inconsistent with their testimony, to really get out of being helpful to the defendant at all without really trying is even more damning when you consider that the {quote} strongest alibi that you can put on that isn't supported by physical evidence is going to be supported by testimony from a stranger, right? Because, as shown in one study, 62% of jury-eligible 
[41:29]
participants felt a biologically related alibi witness would be most likely to lie for a defendant. 50% felt the same about someone related by marriage and 32% felt the same about witnesses socially related to the defendant. So, the strongest alibi, right, completely supported by just testimony, circumstantial evidence, and not from physical evidence like, you know, a video camera, security tape, anything like that, is is still weak because a stranger is so much more likely to recant their witness testimony, to say, 
[42:01]
"Yeah, I'm out," or to not be as committed to keeping their statements consistent. They are more ripe to sway to intimidation or to misleading the questions, right? Or to questions just poking holes in their story. They're they they feel as though they don't really have a a lot of skin in this game, and that is the catch-22, right? Yay, we found a complete stranger who 100% supports your alibi and definitely remembers you. Now, 
[42:32]
let's pray that nothing happens in between now and when they testify that would somehow transform them from a super helpful witness to one that actually hurts your case. Unfortunately, truthful witnesses are more likely to retract an accurate alibi if exposed to incriminating evidence, which is also such a bummer. It is extremely hard for you, for anyone, to separate an alibi provided in good faith from a lie, period. You do not have, especially cops, do not have some heightened sense and ability to tell if 
[43:03]
someone's lying. You have no idea. The evidence does not support that there is some kind of pattern you can follow that would coincide with you knowing more or being able to suss out a lie. It's being able to suss out a lie. It's completely subjective, honestly, and extremely difficult because so many get it wrong. So many get it wrong. Study after study shows that people are not good at accurately assessing deceit. In most cases, investigators and jurors would be just as accurate if they flipped a coin. 
[43:35]
This makes it hard for investigators and jurors to assess an alibi witness, and the studies prove it. The DNA exoneration cases suggest that there is a systemic bias in our justice system against alibis provided by innocent suspects, which breaks my damn heart. In sum, the myth of the alibi may be more verifiably true than merely an unsupported assumption. The research and data suggest anything but a perfect physical evidence-supported alibi risks an entire defense being turned on its head. On the other hand, the specific 
[44:06]
facts of each case and the specific alibi witnesses, their credibility, their relationship to the defendant, how the police investigate, how strong the prosecution's case is to begin with, etc. are all variables that make a hard and fast never present an alibi rule impossible to support. My rebuttal for today's episode is not that alibis shouldn't be used ever. It's not that you should be terrified each day of misremembering the mundane events of your daily lives should they become a life or death recollection in a courtroom one day. The point of this 
[44:37]
episode is to, as always, expand your knowledge of and appreciation for the legal system, its limitations, its biases, its, of course, humorous and outlandish events, which not so much this episode, but many others that we've done, okay? Less serious, less learning, more hee-hee-ha-ha-ing, but this one I I hope that you can take away from it this system's complexities. Nothing is black and white. We live in the gray, we litigate in the gray, and your determinations or assumptions about 
[45:07]
another person's guilt or innocence, if you ever sit on a jury in a criminal case, a trial one day, maybe you're a witness one day, maybe you're a defendant, God forbid, should take all of this into account. And God forbid, bigger rebuttal capital r e b, if you are ever questioned by the police, arrested or not, innocent or not, you say no, I want a lawyer. I will not speak to you without a lawyer. I am exercising my right to remain silent, and then you do so. You shut your mouth. Shut it. Shut up. In order to have the 
[45:38]
right to remain silent, you have to exercise it. You have to have You have to have it, use it. Okay? Use it by shutting. Shutting. Right after you say I want a lawyer clearly, unequivocally, do not say anything ambiguous. Say I want a lawyer, period. That is a sentence, full sentence, period, stop. And that gives you the chance to have your defense attorney help you decide whether an alibi you were totally about to blab to the police all about is as airtight and helpful as you thought it was. Thank you for watching. Thank you for listening. I 
[46:08]
hope you learned a little something today. Please do not take this episode as some big "Rab said that I should never have an alibi and that alibis are really stupid to put on as evidence in a trial." I will actually I will hunt you down, okay? down, okay? >> [laughter] >> This is simply information I'm providing to you and something that defense attorneys have to consider and think about on a daily, hourly, second-by-second basis that I don't think the general public understands or appreciates enough. The press release announcement that I mentioned on last week's episode, it's not it's not up to me like when that comes out because it's the studio 
[46:40]
is they they are doing it. So, I have no I have no power or control, which is kind of nice to kind of take the hands off the wheel. I love you guys so much. I hope that you love this podcast and my content and our conversations. I feel like we have these conversations in the comments. I don't ever feel like it's one-sided. I feel like there's such dialogue. I hope you enjoy them enough to hop on over to the forthcoming new show that I will be on in addition to Rebuttal, of course, never leaving my OG, my love, my romance, my baby. New show that I'm going to host and I'm 
[47:11]
really really really really really excited about it. So, love you guys so much. Blah blah blah blah. I don't even think I'm allowed to state the title yet. It's funny. I'm I'm an attorney, right? But as like I would I would be the worst actor actress. You know how they have to keep everything under wraps. Like I'm I'm like there's a new show I'm going to host, yippee. They'll probably announce they'll announce the actual show and there'll be a whole prep like there'll be like a marketing campaign and like a whole thing, but I just the fact that I don't have to like run that. don't have to like run that. >> [gasps and sighs] >> I love that. I love people working for Like I just I feel as though 
[47:43]
lawyers get it even having paralegals or and assistants who who literally make the world go round. God bless you. We wouldn't be nothing without you. It is exhausting to feel like you got to be exhausting to feel like you got to be your you know, the the one who's on top of everything and with respect to all of the Rem Mazel social media stuff, like it's me and my agents and my this podcast network against the world. Truly. But, yay. Can't wait to talk to you more about that later. I love you so much. Kisses. Stay safe. Don't get 
[48:14]
arrested. If you do, don't talk to the cops. Ask for a lawyer. Stay silent. I love you.