There is a question Can I surprise the prosecution with an alibi defense at trial? which asks a similar thing and the answer there seems to be yes, but the evidence presented seems to me to be inconclusive at best. Since it only implies that the notice of alibi requirement is constitutional, but the notice only says the court MAY exclude the alibi if it has not been disclosed.

The goal of the statue as read seems to be more expediency and efficiency of proceedings though and the argument being that alibis can be easily falsified, here assuming that witnesses can be coerced/bought/or just sympathetic (mom in one case where this was raised) but there is evidence that is quiet hard to falsify such as public video recordings or witness testimony from large amounts of unrelated people.

Is it realistic that a court would exclude such testimony due to it not being disclosed timely?

  • Are you presuming that the defense intended all along to present the alibi? Did they inadvertently fail to disclose it, or deliberately? Either way it seems like another route to get it in would be to appeal for a new trial on the basis of "ineffective assistance of counsel". Feb 24, 2023 at 20:09

1 Answer 1


Yes, this happens with some regularity.

In the absence of timely notice, courts should generally permit the alibi testimony, assuming that prosecution will not be surprised or prejudiced by the late notice and that the lack of notice was not the result of bad faith.

But when that's not the case, courts can and definitely do exclude alibi testimony:

  • State v. Reed, 155 Ohio App.3d 435 (2003) ("The record demonstrates that the prosecution was unaware of Reed’s alibi, and it had no opportunity to investigate the claim. Thus, the state would have been prejudiced by Reed’s unanticipated alibi testimony, and Reed has made no showing of excusable neglect or good cause for his delay in providing notice. In light of Manns’s failure to appear at trial and Reed’s last-minute change in trial strategy, we cannot say that the trial court abused its discretion by excluding the alibi evidence."

  • United States v. Davis, 40 F.3d 1069, 1076 (10th Cir. 1994) ("The better practice is generally to hear an alibi witness. However, the district court maintains discretion in such matters, and it was not an abuse of discretion to exclude the testimony in this case.")

  • People v. Grant, C050172, 2006 Cal. App. Unpub. LEXIS 3356 (Apr. 25, 2006)

Assuming the government is subject to reciprocal discovery obligations, a defendant's due-process rights do not preclude the exclusion of alibi witnesses as a sanction for failing to give timely notice. Wardius v. Oregon, 412 U.S. 470 (1973) ("The Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.").

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