united-states criminal-law trial fifth-amendment
Can I surprise the prosecution with an alibi defense at trial?
<p>Let's say I've been accused of a murder.  Throughout the investigation I've plead the Fifth as to where I was when the crime happened.  Eventually I'm put on trial, still pleading the fifth as to my whereabouts during the crime.</p>
<p>Then, when put on the stand during the trial, I finally tell the court, and jurors, that I had an airtight alibi the entire time and have just refused to share it until now.  Let's say the alibi could result in some trivial criminal charges being filed, like loitering, so I do have the right to claim I had reason to fear bearing witness to myself.</p>
<p>I'm wondering what would happen at this point.  The prosecution wouldn't have had a chance to prepare for this revelation, but they can't say that I or my lawyer acted wrongly if I only now decided to testify.  Would this be cause for a mistrial?</p>
<p>Would it matter if this was a legal strategy?  For instance what if I tell my lawyer &quot;I don't want to reveal my alibi unless you think there is a greater then 50% chance the jury will find me guilty.&quot;  Can my lawyer continue as normal, knowing I may surprise the defense if I deem the odds of going to jail too high, or is he in a position where he has to say something once he knows I'm intentionally withholding information to surprise the prosecution?</p>
<p>As to why anyone would do this, I can think of two reasons.  1) I know who did it and was willing to take the chances at court to protect the real person until it became clear I'll likely lose, 2) I did the crime, but the prosecution has the theory of the crime all wrong, and so I'm intentionally looking to undermine the prosecution by surprising them with an alibi in hopes of convincing the jury that the prosecution didn't do their 'homework' and thus I'm innocent.</p>

<h2>No</h2>
<p>Federal law and most states have an <a href="https://definitions.uslegal.com/n/notice-of-alibi-rule/" rel="noreferrer">notice of alibi</a> rule that requires a defendant to identify witnesses who will testify as to their alibi and where the defendant claims to have been.</p>
<p>The validity of these rules was upheld by the Supreme Court in <a href="https://en.wikipedia.org/wiki/Williams_v._Florida" rel="noreferrer">Williams v Florida</a>:</p>
<blockquote>
<p>The Fifth Amendment would not be violated if, after the alibi witness had given evidence, the court granted a continuance to allow the prosecution to seek rebuttal evidence (this point was conceded by Williams's lawyers). Consequently, all the notice-of-alibi law did was allow the prosecution to do so before the trial, instead of having to interrupt the trial. It did not provide the prosecution with more information to use against a defendant than they would eventually get in any event.</p>
</blockquote>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="canada-container">canada</a></p>
<p>An accused should give <strong>timely and adequate disclosure</strong> of their intended alibi defence to the Crown. This means it should be given &quot;in sufficient time to permit the authorities to investigate&quot; and that it should be given &quot;with sufficient particularity to enable the authorities to meaningfully investigate.&quot; <em>R. v. Cleghorn</em>, [1995] 3 S.C.R. 175 <a href="https://canlii.ca/t/1frgw#par3" rel="nofollow noreferrer">at para 3</a>.</p>
<p>&quot;[T]he consequence of failure to disclose properly an alibi is that the trier of fact may draw an <strong>adverse inference</strong> when weighing the alibi evidence heard at trial. However, <strong>improper disclosure can only weaken alibi evidence; it cannot exclude the alibi</strong>.&quot; <em>Cleghorn</em> at para 4. The jury should be instructed that &quot;failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi.&quot; <em>R. v. Tomlinson</em>, 2014 ONCA 158 at <a href="https://canlii.ca/t/g51wx#par122" rel="nofollow noreferrer">para 122</a>.</p>
<p>The rationale is based on expediency and &quot;the relative ease with which an alibi defence can be fabricated.&quot; <em>R. v. Noble</em>, [1997] 1 S.C.R. 874 at <a href="https://canlii.ca/t/1fr3b#par111" rel="nofollow noreferrer">para. 111</a>.</p>
