Alibi vs. Affirmative Defense

Under Florida law, an alibi is not an affirmative defense. Lynch v. State, 293 So. 2d 44 (Fla. 1974). Unlike an affirmative defense (where the accused admits to the essential act, but attempts to excuse or justify the act) the alibi operates to deny that the accused was the person who committed the offense in the first place. In effect, a defendant raising an alibi defense says: “Perhaps a criminal act occurred. However, I wasn’t there at the time of the incident, so I could not be the person who committed the act. I therefore deny your allegations.”

Alibi Jury Instruction

Where a defendant presents sufficient evidence of an alibi in Florida, the judge, following the Florida Standard Jury Instructions, will typically instruct the jury as follows: “An issue in this case is whether the defendant was present when the crime allegedly was committed. If you have a reasonable doubt that the defendant was present at the scene of the alleged crime, it is your duty to find the defendant not guilty.”

Procedures for Raising Alibi Defense

The procedures for raising an alibi defense in a Florida criminal proceeding are outlined in Rule, 3.200, Florida Rules of Criminal procedure. The Rule provides that, upon written demand by the prosecutor, the defendant must, at least ten days before trial (or such other time as set by the court), file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi. This “Notice of Alibi” must contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or the defendant’s attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi.

Within five days after receiving the defendant’s alibi witness list (contained in the Notice of Alibi), the prosecuting attorney must file and serve on the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the cause. If additional witnesses or information come to light in the time before trial, both the defendant and prosecutor remain under an obligation to disclose information that would have otherwise been required under Rule 3.200.

If a Florida defendant fails to file and serve a copy of the Alibi Notice, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except for the defendant’s own testimony.