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How do you prove an alibi defense in sc?

How do you prove an alibi defense in sc?
Axelrod & Associates, P.A.

How do you prove an alibi defense in SC?

If you’ve ever watched a crime show on the television, you’re probably familiar with the alibi defense – I was somewhere else at the time of the murder; therefore, it is impossible for me to have committed the crime.

Seems reasonable, right? Of course, the prosecution will not usually accept your alibi defense. They will probably pay a visit to your alibi witnesses before trial to “interview them.” At best, they will attempt to poke holes in your witness’ timeline. At worst, prosecutors or their investigators may threaten your alibi witnesses and discourage them from testifying…

What is an alibi defense in SC, what are some of the pitfalls that defendants may fall into, and what are some myths about the alibi defense?


An alibi defense is kind of like the “physics” defense.

The laws of physics say that you cannot be in two places at the same time. If the murder happened at exactly 10:00 pm on Friday night, and ten witnesses swear that you were 100 miles away at the Dave Matthews concert at exactly 10:00 pm that Friday night, you could not have committed the murder…

But how do you prove it? And will the prosecutor accept your alibi or take you to trial anyway?

How do You Prove an Alibi Defense in SC?

How do you prove an alibi defense in SC?

The most common form of alibi evidence is eyewitness testimony from people who saw you at the other location. Their testimony will need to be detailed, and the timeline will need to be “locked down” to confirm that there is no possibility you slipped away for long enough to visit the crime scene – if the witness testimony does not exclude the possibility that you committed the crime, it is not a true alibi.

Even when you have eyewitness testimony, your attorney or investigator will need to locate and collect corroborating evidence whenever possible – the prosecutor will be quick to point out that people lie. Especially your family or friends who do not want to see you go to prison…

Other evidence that can corroborate your alibi witnesses may include:

  • Photographs;
  • Video recordings of you at the location;
  • Phone records or GPS data from your phone;
  • Credit card or purchase records from stores, restaurants, or other locations you visited; or
  • Any physical evidence that can pinpoint your location at the specific time that the crime was committed.


If you are going to raise an alibi defense at trial, Rule 5 of the SC Rules of Criminal Procedure requires you to give written notice of 1) your intent to raise an alibi defense, 2) where you were at the time of the alleged crime, and 3) the names and addresses of all witnesses you intend to call at trial to establish your alibi:

(e) Notice of Alibi.

(1) Notice of Alibi by Defendant. Upon written request of the prosecution stating the time, date and place at which the alleged offense occurred, the defendant shall serve within ten days, or at such time as the court may direct, upon the prosecution a written notice of his intention to offer an alibi defense. The notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom he intends to rely to establish such alibi.

The prosecution is then required to give you written notice of the names and addresses of witnesses they intend to call at trial to debunk your alibi defense:

(2) Disclosure by Prosecution. Within ten days after defendant serves his notice, but in no event less than ten days before trial, or as the court may otherwise direct, the prosecution shall serve upon the defendant or his attorney the names and addresses of witnesses upon whom the State intends to rely to establish defendant’s presence at the scene of the alleged crime.

Both you and the prosecutor must then continue to inform the other side if you discover new witnesses who will testify as to your alibi or debunk your alibi:

(3) Continuing Duty to Disclose. Both parties shall be under a continuing duty to promptly disclose the names and addresses of additional witnesses whose identity, if known, should have been included in the information furnished under subdivisions (1) or (2).

What happens if either side does not disclose their alibi witnesses or “anti-alibi” witnesses? The trial court can refuse to allow them to testify:

(4) Failure to Disclose. If either party fails to comply with the requirements of this rule, the court may exclude the testimony of any undisclosed witness offered by either party. Nothing in this rule shall limit the right of the defendant to testify on his own behalf.

Why Do You Have to Give Notice of Your Alibi Defense?

The reason prosecutors and courts will give for the notice requirement is that “we do not have trials by ambush.” It is unfair to spring an alibi witness on the prosecutor without giving them an opportunity to examine your alibi defense and **cough cough** do the right thing before trial…

The reality, however, is that the notice requirement gives the prosecutor, police, or investigators the opportunity to visit your witnesses and interrogate them. In many cases, this means the prosecutor or investigator will lean on your witness, telling them what the state believes the truth is (you are guilty and they are lying), and then threaten your witnesses with criminal charges, attempt to get them to change their testimony, or discourage them from testifying…

Wait a minute, that’s illegal, isn’t it?

Do Your Witnesses Have to Talk with Police?

If a defense attorney threatens a witness or attempts to get them to change their testimony, the defense attorney could be charged with obstruction of justice, witness tampering, compounding a felony, or subornation of perjury. They could also be disbarred. But isn’t it also a crime when prosecutors or investigators do it?

Apparently not.

Who’s going to arrest them and charge them with a crime? When it’s brought to the court’s attention, courts will almost always bend over backward to make a finding on the record that there was no misconduct. If a defense attorney files a complaint with a detective’s department, they will laugh about it. If a defense attorney files a “grievance” with the SC Bar, the Office of Disciplinary Counsel will probably not discipline the prosecutor.

So, what can you do?

Neither you nor your defense attorney can tell a witness not to talk with the prosecution. That could be interpreted as obstruction of justice or witness tampering, and, unlike police and prosecutors, you or your attorney might be charged with a crime…

On the other hand, your witnesses do not have to talk to prosecutors or police, any more than their witnesses must talk with your defense attorney – they can simply refuse, say “leave me alone,” and close the door.

Your alibi witnesses should know that:

1) they can choose whether to speak to police and there is no legal obligation for them to submit themselves to an interrogation; and

2) if they choose to speak to police, they should record the conversation and have a witness present.

Who Has the Burden of Proof for an Alibi Defense?

In reviewing other SC attorneys’ blog posts about the alibi defense in SC, I found several that stress how you have the burden of proof for an alibi defense.

They are wrong.

Although you must raise the alibi defense and you must produce evidence to support your alibi, once you have raised the defense the burden of proof is 100% on the prosecution to disprove your alibi. For example, a standard jury instruction that is given in alibi cases in SC includes this language:

There is no burden upon the defendant to prove that he was not at the scene of the crime. There is no burden upon the defendant to prove his alibi. The defendant need not prove he was somewhere else.

The burden is on the State to prove beyond a reasonable doubt that the defendant was present at the scene of the crime, actually participated in the crime, and was not somewhere else. Thus, the State has the burden of proving beyond a reasonable doubt that the defendant was present and committed the crime. The State has the burden of disproving the defendant’s alibi defense.

Once you have raised an alibi and presented evidence supporting it, the jury needs to know that the burden of proof is not on you to prove your alibi. It’s an important distinction, because, once you have raised an alibi, jurors will expect you to prove it unless your attorney explains to them why the state still has the burden of proof…


If you have been charged with a crime and you have an alibi, it is critical that your attorney and investigator lock down your alibi defense as soon as possible by collecting witness statements and evidence that can corroborate the testimony of your alibi witnesses.

Call Axelrod and Associates now at 843-916-9300 or send an email to talk with a Myrtle Beach, SC criminal defense attorney today.

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