216 N.J. Super. 92 (App. Div.), certif. denied, 108 N.J.
194 (1987). It does not require a disclosure which
defendant does not wish to make, but merely advances
the time of his making such disclosures. State v. Baldwin,
47 N.J. 379 (1966), cert. denied, 385 U.S. 980 (1966).
Also, such requirement does not violate any due
process rights because of the reciprocity of discovery. See
Wardius v. Oregon, 412 U.S. 470 (1973).
B. Failure to Provide Notice
Where either defendant or the State has failed to
provide adequate notice, the court has the discretion to
preclude defendant’s alibi testimony, preclude either
party’s alibi witnesses, grant an adjournment or brief
continuance of trial to allow the other party to investigate
the alibi, or make such other order as the interest of justice
requires. R. 3:12-2(b).
Exclusion of a defendant’s alibi is an appropriate
remedy when defendant fails to give notice of alibi prior
to trial. State v. Gonzalez, 223 N.J. Super. 377 (App. Div.
1988) (proper to exclude defendant’s alibi testimony
which was brought out for the first time during direct
examination of defendant without any prior notice to the
State and would result in an indeterminate continuance
to accommodate an investigation); State v. Francis, 128
N.J. Super. 346 (App. Div. 1974) (proper to exclude
defendant’s alibi testimony where defendant failed to
respond to two requests to furnish alibi particulars and
did not indicate prior to trial that he would offer alibi
testimony); State v. Woodard, 102 N.J. Super. 419 (App.
Div. 1968), certif. denied, 53 N.J. 64 (1968), cert. denied,
395 U.S. 938 (1969) (proper to exclude alibi witness
where State informed of witness’ existence at the close of
its case and continuance of trial to permit the State to
investigate the witness and his information at this
eleventh hour would be impractical).
However, preclusion of evidence is a drastic sanction
for a violation of discovery rules, and the court should use
alternative sanctions whenever feasible. State v. Caffee,
220 N.J. Super. 34 (App. Div.), certif. denied, 107 N.J.
640 (1987) (error to preclude alibi witnesses where other
alternatives available and State had received notice one
month before trial); State v. Volpone, 150 N.J. Super. 524
(App. Div.), aff’d, 75 N.J. 543 (1977) (error to preclude
alibi witness where court did not explore the feasibility of
a continuance and the State had waited a week to object
to the late notice given on first day of trial); State v.
Mitchell, 149 N.J. Super. 259 (App. Div. 1977) (error to
preclude alibi witnesses where the State had receive
notice six months before trial and the State did not object
until trial); State v. Harris, 117 N.J. Super. 83 (App. Div.
1971), certif. denied, 63 N.J. 557 (1973) (error to
preclude alibi witness where State made aware of witness’
identity and possibility of defendant’s reliance on her
testimony by a letter to the prosecutor).The language “other order” encompasses procedural
alternatives to ameliorate the problem of the late alibi
witness, such as revision in the ordinary order of
witnesses. State v. Baldwin, 47 N.J. 379 (1966) (proper
to order State to provide pretrial statement of witness and
not call that witness to testify until the following week of
trial to afford defense an opportunity to investigate). It
does not, however, contemplate substantive alternatives.
State v. Sutton, 237 N.J. Super. 221 (App. Div. 1989)
(error for court to substantively charge that defendant is
required to give notice within a specified time period and
that lateness of notice may be considered in determining
the alibi defense).IV. CROSS-EXAMINATION
A. Failure to Inform the State of Alibi
Failure of defendant to inform the State of an alibi
defense, including prior to filing an alibi notice, may not
be used in cross-examination of defendant to impeach his
credibility or in summation. State v. Aceta, 223 N.J.
Super. 21 (App. Div. 1988); State v. Deatore, 70 N.J. 100
(1976); State v. Alston, 70 N.J. 95 (1976).Failure of an alibi witness, other than defendant, to
inform the State about the alibi may be used in cross-
examination to show that the witness’ actions were
inconsistent with what a reasonable person would have
done. State v. Plowden, 126 N.J. Super. 228 (App. Div.
1974), certif. denied, 64 N.J. 504 (1974). However, the
court must first conduct a hearing and find that the State
has demonstrated “the existence of circumstances that
legitimate the inquiry,” i.e., that the witness was aware of
the charges, realized he had exculpatory information, had
a motive to exculpate defendant, and knew how to
communicate that information. Further, the prosecu-
tion is barred from impeaching the witness’ credibility or
commenting in summation about any such pretrial
silence for the time period after the service of an alibi
notice which lists the name of that witness. State v. Silva,
252 N.J. Super. 622, 628 (App. Div. 1991), aff’d, 131
N.J. 438 (1993).