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.