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I. ALIBI (See also, ALIBI, DISCOVERY,
INFERENCES and PRESUMPTIONS, this
Digest)
A defendant may not be cross-examined with regard
to his failure to inform the police, while in custody, of the
existence of an alibi. State v. Deatore, 70 N.J. 100, 109-
19 (1976). The rule is based on the need to protect the
privilege against self-incrimination. Id.
The prosecutor is entitled to cross-examine a defense
alibi witness, other than the defendant, as to why the
witness failed to come forward to the police with his or her
information regarding the defendant’s alibi. State v.
Plowden, 126 N.J. Super. 228, 230-31 (App. Div. 1974),
certif. denied, 64 N.J. 504 (1974). This may only be
done, however, if a witness appears to know of the charges
and would naturally have been expected to come forward
with the alibi testimony. State v. Silva, 131 N.J. 438
(1993). Once a notice of alibi is filed, however, making
the witness available for questioning by law enforcement,
there is no longer an inconsistency from which to infer
fabrication unless the witness refuses to discuss the
matter. Id. The State may not impugn an alibi defense,
by cross-examination or comment, on the ground that it
was not timely offered to police after the defendant’s
arrest. See State v. Pierce, 330 N.J. Super. 479 (App. Div.
2000); State v. Aceta, 223 N.J. Super. 21 (App. Div.
1988).
The prosecutor is not entitled to argue to the jury
that the defendant’s failure to produce an alibi witness
named in a notice of alibi might be due to the witness’
reluctance to commit perjury where the failure to
produce the witness could have a number of innocent
explanations not readily or appropriately exposed at trial.
State v. Gross, 216 N.J. Super. 92 (App. Div. 1987), certif.
denied, 108 N.J. 194 (1987). The admission into
evidence of the written alibi notice to support such a
comment is also improper. Id.; see also State v. Rowe, 316
N.J. Super. 425 (App. Div. 1998), certif. denied, 160 N.J.
89 (1999); State v. Lumumba, 253 N.J. Super. 375, 396
(App. Div. 1992). The proscription against such
reference to a notice of alibi does not preclude a Clawans
charge if such is independently supported. State v.
Lumumba, supra. However, if a defendant does testify, his
alibi notice may be used on cross-examination as a prior
inconsistent statement. State v. Irving, 114 N.J. 427,
437-41 (1989).
Pursuant to R. 3:12-2(a), upon written demand of
the prosecutor, the defendant must, within ten days, give
a notice of alibi accompanied with details of the alibi and
the names of alibi witnesses on whom the defendant
intends to rely. Appropriate sanctions, including the
preclusion of alibi witnesses, may be imposed for
violations. R. 3:12-2(a). See also R. 3:12-2(b).In State v. Mitchell, 149 N.J. Super. 259 (App. Div.
1977), a defendant gave his notice of alibi four months
late but over five months before trial. The trial judge, on
the prosecutor’s motion, refused to permit the defendant
to present an alibi defense. The exclusion was reversible
error because stripping a defendant of such a defense is an
“extremely severe sanction.” Although the Mitchell court
recognized that an eleventh hour claim of alibi might
justify total exclusion of the alibi defense, the prosecution
had ample notice of the defense. Moreover, the trial court
did not consider whether a lesser sanction, such as an
adjournment, would have cured any prejudice from the
delayed notice. Finally, the court noted that the State
failed for five months to raise any objection based on the
late notice of alibi. This could have legitimately “lulled”
the defense into believing that its tardy notice was being
accepted without objection.What constitutes evidence of alibi has been disputed.
In State v. Volpone, 150 N.J. Super. 524 (App. Div.
1977), aff’d, 75 N.J. 543 (1977), the defendant who did
not give a notice of alibi, attempted to call a witness who
would testify that the defendant was not at the scene of
the crime. The prosecutor objected, and the trial court
held that this evidence was in the nature of alibi
testimony and would be excluded because of the
defendant’s failure to comply with the rule. The
Appellate Division reversed the conviction and held that
this testimony was not evidence of an alibi because the
only evidence of alibi is that which indicates that a
defendant was at some other place than the scene of the
crime. Hence, evidence that the defendant was not at the
scene of the crime could not be considered alibi evidence.
The only notice received by the State was on the first day
of trial and that witness was excluded one week later. The
Volpone court held, in the alternative, that even if the rule
was applicable, the trial court failed to establish that the
State was unfairly surprised by the late notice and failed
to explore the possibility of less drastic sanctions. On
review, the Supreme Court of New Jersey summarily
affirmed the grant of a new trial, but held that the
evidence proffered by the defendant did come within the
ambit of the notice of alibi and that the defendant in
Volpone would be required to comply with that rule.