Sanctions and Remedies for Non-Compliance
Failure of the defendant to timely file notice of alibi: In general
• If at the trial it appears that the defendant has failed to file and serve an original statement of alibi in accordance with [IC 35-36-4-1], and if the defendant does not show good cause for his failure, then the court shall exclude evidence offered by the defendant to establish an alibi.
• If the defendant fails to timely file his notice of alibi defense and does not show good cause for this failure, then “the court shall exclude evidence offered by the defendant to establish an alibi.”
See Kroegher v. State, 774 N.E.2d 1029, 1032 (Ind. Ct. App. 2002), trans. denied(quoting IC 35-36-4-3(b))(“If the defendant fails to file notice of an alibi defense, the trial court ‘shall exclude evidence offered by the defendant to establish an alibi,’ unless the defendant can show good cause for his failure to file.”)
See also Payne v. State, 495 N.E.2d 183, 184 (Ind. 1986)(“[I]f the defendant does not provide notice on time in accordance with the statute, without showing good cause for noncompliance, such evidence shall not be admitted at trial.”)
See also Lee v. State, 694 N.E.2d 719, 721 n. 4 (Ind. 1998), cert. denied, 525 U.S. 1023 (1998)(citing Adkins v. State, 532 N.E.2d 6, 8 (Ind. 1989))(“When a defendant fails to file a notice of alibi in accordance with IC 35-36-4-1, the trial court shall exclude any alibi evidence offered by the defendant.”)
• “Where there is a showing of good cause for the defendant’s failure to [meet] the statute’s requirements, however, the trial court may admit alibi evidence as a matter of discretion.”
Failure of the defendant to timely file notice of alibi: Good cause
• The defendant bears the burden of demonstrating good cause to put aside statutory requirements.
See Fields v. State, 367 N.E.2d 36, 38 (Ind. Ct. App. 1977)(citing Stapp v. State, 287 N.E.2d 252, 254 (Ind. 1972), reh’g denied)(“Where compliance with the statute is lacking, the defendant bears the burden to show sufficient cause to put aside the statutory requirements.”)
• The determination of whether a defendant has established good cause is left to the discretion of the trial court.
See also Webster v. State, 579 N.E.2d 667, 670 (Ind. Ct. App. 1991)(citing Seay v. State, 529 N.E.2d 106, 110 (Ind. 1988))(“Determination of good cause for the omission is a matter for the sound discretion of the trial court.”)
Failure of the defendant to timely file notice of alibi: Right of the defendant to testify
• [A]n accused who improperly files a notice of alibi may still offer his own alibi testimony under his constitutional right to testify in his own defense.
See Lee v. State, 694 N.E.2d 719, 721 n. 4 (Ind. 1998), cert. denied, 525 U.S. 1023 (1998)(“[S]ince it appears that no notice of alibi was ever filed, trial counsel would have been prohibited from presenting any alibi testimony which defendant claims to exist, other than defendant’s own testimony.”)
• In light of the strong constitutional bias in favor of permitting such personal testimony of the accused and the available remedy of continuance, the exclusion of a defendant’s own alibi testimony is an unjustified and overbroad intrusion upon the right of the accused to testify on his own behalf. Today, we expressly hold that the exclusion of a defendant’s own testimony of alibi under the alibi statute, I.C. 35-36-4-1, is an impermissible infringement upon the right of the accused to testify guaranteed by Article I, § 13 of the Indiana Constitution.
• While I join today’s majority opinion . . . . I also note that we hold today only with “the exclusion of a defendant’s own alibi testimony.” The task of balancing the interests involved in a fair trial might well be different when the question concerns exclusion of evidence other than the defendant’s own testimony.
Campbell v. State, 622 N.E.2d 495, 501 (Ind. 1993), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)(Shepard, C.J., concurring)(citation to the majority opinion omitted)
Failure of the defendant to timely file notice of alibi: Right of the defendant to present third-party witness testimony
• Although the right to present witnesses is of critical importance, it is not absolute and must sometimes yield to other legitimate interests in the criminal trial process.
• [I]n determining whether the trial court properly excluded [third-party witness] alibi testimony, we must balance [the defendant’s] right to present witnesses on his behalf against the State and the public’s interest in maintaining the integrity of the adversary process.
• [T]he fact that [the defendant] did not reveal [the third-party witnesses] to the State until the last possible moment makes it reasonable to suspect that there was something suspect about their testimony. By keeping the State in the dark about his alibi defense, the State could not investigate that defense, and, thus, [the defendant] was in no way deterred from fabricating an alibi. In filing his notice of alibi on the first day of trial, [the defendant] prejudiced the State by not giving it sufficient time and information to adequately prepare for trial. Each of these factors impairs the truth-determining function of the adversary process.
• [Additionally,] when a defendant willfully or purposely suppresses alibi evidence to gain a tactical advantage, the trial court can properly exclude the proffered alibi testimony without violating the defendant’s Sixth Amendment rights.
• [The defendant] did not timely file his notice of alibi, and the trial court could have properly refused to allow [the defendant] to present any alibi witnesses at all. [Thus, the defendant] was not unfairly prejudiced when the trial court granted his motion to filed [sic] a belated alibi notice, but placed some restrictions on which witnesses [the defendant] would be allowed to call.
Failure of the defendant to timely file notice of alibi: Rationale for the sanction
• The sanction for non-compliance by the defendant is designed to protect the State from fabrication of defenses and enable prosecutors to prepare adequately for trial.
• “Given the ease with which an alibi can be fabricated the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.”
Failure of the prosecutor to reply to the notice of alibi
• If at the trial it appears that the prosecuting attorney has failed to file and serve his statement in accordance with [IC 35-36-4-2(a)], and if the prosecuting attorney does not show good cause for his failure, then the court shall exclude evidence offered by the prosecuting attorney to show:
(1) that the defendant was at a place other than the place stated in the information or indictment; and
(2) that the date was other than the date stated in the information or indictment.
• Under the alibi statute, IC 35-36-4-3, if the State does not respond to a notice of alibi defense, the court is to exclude “evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in . . . the indictment.”
• This Court has refused to adopt a rule excluding all evidence of events occurring outside the time and spatial limits raised by a notice of alibi defense.
• Testimony describing events outside these limits is admissible if it circumstantially proves commission of a particular crime within the limits.
• Here, the defendant procured from the victim at the deposition that information which he would have received from a timely answer by the State to his notice of alibi and which he did obtain from the State’s late answer. He cannot, and does not, complain that he was misled in the preparation or maintenance of his defense since the testimony concerning the date, time and place of the offense adduced at trial was virtually identical to that same information revealed at the . . . deposition. He rejected the offer of a continuance. We find no reversible error in the trial court’s refusal to exclude the State’s evidence.
Failure of the defendant to timely file a second statement of alibi
• If at the trial it appears that the defendant has failed to file and serve a second statement in accordance with [IC 35-36-4-2(c)], and if the defendant does not show good cause for his failure, then the court shall exclude evidence offered by the defendant to establish that:
(1) he was at a place other than the place specified in the prosecuting attorney’s statement; or
(2) the date was other than the date stated in the prosecuting attorney’s statement.
Discretion of the court to extend filing deadlines
• If either the defendant or the prosecuting attorney fails to file or serve statements in accordance with [IC 35-36-4-2], the judge may extend the time for filing.
Discretion of the court to grant continuances: In general
• The trial court clearly has discretion to order a continuance as the sole remedy for a violation of the [alibi] statute.
Discretion of the court to grant continuances: As applied to a defendant’s notice of alibi
• [T]he record shows that the trial court offered [the defendant] a continuance to rectify the defect in his alibi notice but [the defendant] refused to accept the offer. This was a proper remedy for the trial judge to use and was within his judicial discretion.
• We also note [that the defendant] at various proceedings leading up to trial testified this witness would provide an alibi defense for him. [The defendant] acknowledged his awareness of the requirement that notice of an alibi defense had to be filed within a certain time period; yet by the time of the trial he still had not done so. We do not believe the trial court can be said to have abused its discretion in denying a continuance sought to procure the testimony of an absent alibi witness, when at the same time there has been a complete failure to comply with the requirements of the alibi statute. The trial court did not err in refusing to grant the continuance.
Discretion of the court to grant continuances: As applied to the prosecutor’s reply
• The proper remedy for a delay or failure of the State to respond to a notice of alibi is a continuance.
Discretion of the court to grant continuances: As applied to surprise alibi testimony by the defendant
• Surprise alibi testimony by the accused is rarely overwhelming, and should the accused choose to offer his own testimony as the lone evidence of alibi in the case [without previously filing notice of alibi], the State should be permitted a continuance to meet the situation.