Using the Alibi Defense in Georgia

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An alibi is a defense to criminal charges in Georgia where the defendant says that they weren’t at the scene when the crime occurred.

According to Georgia law, as codified in O.C.G.A. § 16-3-40, an alibi defense involves the impossibility that the person accused of a crime was at the scene of the offense when it was committed. The evidence presented must reasonably exclude the possibility that the defendant was present. IN other words, an alibi is evidence that the defendant was somewhere else when the crime was committed. The defendant doesn’t only have to show that he was somewhere else when the crime was committed but that it was reasonably impossible that he was at the scene of the crime.

For example, if you are charged with murder in Dekalb County, but you are on surveillance video over an hour away in Cherokee County at the time of the murder, you have a valid alibi defense. Additional evidence, such as receipts from establishments in Cherokee County, or people to testify that you were with them in Cherokee County at the time of the murder will strengthen your alibi defense and create the reasonable impossibility that you were at the scene of the murder as required by Georgia law. It is important to hire an experienced attorney right away to help you gather and preserve the evidence you need for this defense.

In Georgia, defendants are required to provide prosecutors notice of their intention to present an alibi defense. However, this notice has several restrictions, as spelled out in O.C.G.A. § 17-16-5. First, the prosecutor must ask for the notice within 10 days of arraignment (or at such time as the court permits). Then, the defendant must provide written notice to the prosecutor within 10 days of the prosecutor’s demand or 10 days before trial, whichever is later. Along with the notice, the defendant must also provide the specific place where they claim to have been during the commission of the crime, and the identity of the witnesses the defendant will present to establish the alibi. In return, the prosecutor must provide the identity of witnesses they will use to rebut the alibi within 5 days of the defendant’s notice or 5 days before trial.

As you can see, the rules surrounding an alibi defense are complex. It is extremely important to have an experienced attorney by your side to help navigate the rules and preserve your right to present an alibi defense. The attorneys at W. Scott Smith possess a wealth of experience defending serious crimes like rape, murder, armed robbery, and aggravated assault, all of which may be defeated with an alibi defense. If you have been charged with one of these serious crimes in Gwinnett, Cobb, Fulton, Dekalb, Clayton, or Henry County, call our office at 404-581-0999 for a free consultation.

Hiring an Attorney to Preserve Alibi Evidence

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If you have been falsely charged with a crime, there may be evidence that supports an alibi defense. For example, there may be surveillance video that shows you at a location other than the crime scene at the time of the crime or your cell phone might show that you were in another state altogether.  Unfortunately, this evidence will not be accessible forever. Video surveillance is often only stored for a short period of time and cell phone records, depending on the company, are only stored for about 10-90 days.

However, if hired in time, a lawyer can send something called a spoliation letter to companies demanding that certain evidence is preserved. This letter simply alerts the company that a criminal investigation is ongoing and that the evidence should be preserved to assist your attorney in supporting your alibi. For example, if you are charged with murder in Fulton County but you were shopping at a Walmart in Cobb County at the time of the murder, it is important that we reach out to Walmart and preserve the surveillance video of you entering the store at the time of the murder. Or, if you are charged with an armed robbery in Dekalb County but your cell phone is pinging off a tower in Gwinnett County at the time of the robbery, it is important that the location data from your cell phone is preserved.

In this situation, time really is of the essence. The lawyers at W. Scott Smith recognize that swift action is required in situations like this. If you are charged with a crime and believe that evidence exists that proves your innocence, call our office at 404-581-0999 for a free consultation.

How Cell Phone Records Can Create an Alibi Defense in Georgia Criminal Cases

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by Scott Smith

An alibi is a claim that you were not on the scene when the crime was committed. Alibi is a powerful defense in Georgia.  It is a statement to the jury you were not present when the crime was committed and therefore you cannot be found guilty. Although there are some exceptions, presence of the defendant at the scene is an essential element of the crime.

For the most part, in order to use an alibi defense at trial in Georgia, the defense must serve the prosecutor with an alibi notice upon the prosecuting attorney.  An alibi notice is a written notice of the Client’s intention to offer a defense of alibi. Such notice by the defense attorney shall state the specific place or places at which the client was (i.e. in Tuscaloosa, Alabama) at the time of the alleged offense (i.e. January 5th, 2018) and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the client, upon whom the client intends to rely to establish such alibi.  However, if it is the defendant himself who is going to give the alibi defense the defendant is not required to furnish the State’s prosecutor with his version of events or expected testimony.

Alibi is very powerful because the jury must acquit if they cannot put you on the scene.  However, it will be sufficient if the State can show you were near the scene of the crime.  In order to really give potency to your alibi, it is incredibly helpful to show your cell phone (which we all carry around with us all the time) was nowhere near the scene, but in the area you claim to be.  In order to this, you will need to subpoena your cell phone records.

The reason cell phone records are important is that cell phones connect to cell phone antennas to pass data through radio signals.  Your cell phone company records the communication with the cell phone antenna.  Specifically, the phone records include:

  1. Identification of the antenna(s) with which a cell device connects (this includes on newer phones when you are roaming and not actively on a phone call);
  2. The azimuth of the antenna (the direction in which the antenna is pointed) with which the cell device is communicating; and
  3. The time in which the connection was initiated and terminated.

By using this information, the attorney is able to get a general idea of where the cell phone is located.  If you have three cell phone antennas pinging at the same time you can potentially triangulate the location.

Subpoenas for phone records should only be issued by an attorney and they can only be issued if and when there is an established case number and court date.

Here is an excerpt from a March 2018 criminal case (Douglas v. State) in the Supreme Court of Georgia: “The jury also received cell-phone records indicating that, at the time of the shooting, a cell phone belonging to Appellant’s mother was within two miles of the scene; likewise, the jury heard testimony that Appellant was known to sometimes use his mother’s cell phone and to travel in the Ford Taurus with her.”  As you can imagine this testimony and exhibits are powerful evidence.

If you have questions about using cell phone records in Georgia call us today for a free consultation, 404-581-0999.