alibi defense in Michigan

2019In Travis, the Michigan Supreme Court, in the factual context of a case involving the prosecution’s notice of its intent to introduce testimony to rebut an alibi defense, held that the language in MCL 768.20(2) “or at such other time as the court may direct” provides the trial court with discretion “to fix the timeliness of notice in view of the circumstances.” Travis, 443 Mich at 679 .

2018MCL 768.20 is an “established rule[] of procedure,” Travis, 443 Mich at 676 , “designed to assure both fairness and reliability in the ascertainment of guilt and innocence” because it benefits and protects the public by preventing the surprise introduction of an alibi defense and allowing the prosecution time and information to investigate the defense.

2023See id.

2017See In re Ayres, 239 Mich App at 22 . -7- Fifth, defendant argues that defense counsel was ineffective for failing to object when the trial court assessed 25 points for PRV 1.

2008People v Merritt, 396 Mich 67, 82 ; 238 NW2d 31 (1976) (discussing whether the trial court erred when it precluded the defendant from presenting an alibi defense after the defendant *380 failed to comply with the alibi notice requirements).

2008People v Merritt, 396 Mich 67, 82 ; 238 NW2d 31 (1976) (discussing whether the trial court erred when it precluded the defendant from presenting an alibi defense after the defendant *380 failed to comply with the alibi notice requirements).

2016Therefore, we conclude defendant was not denied the effective assistance of counsel. [People v Sabin (On Second Remand), 242 Mich App 656, 660 ; 620 NW2d 19 (2000) (citation omitted).] 9.

2016Therefore, we conclude defendant was not denied the effective assistance of counsel. [People v Sabin (On Second Remand), 242 Mich App 656, 660 ; 620 NW2d 19 (2000) (citation omitted).] 9.

2015See People v Pickens, 446 Mich 298, 327 ; 521 NW2d 797 (1994) (holding that trial counsel’s conduct in failing to file notice of an alibi defense despite knowing of the possible testimony well before trial was conduct that fell below an objective standard of reasonableness).

2015See People v Pickens, 446 Mich 298, 327 ; 521 NW2d 797 (1994) (holding that trial counsel’s conduct in failing to file notice of an alibi defense despite knowing of the possible testimony well before trial was conduct that fell below an objective standard of reasonableness).

1975Relying upon People v Erb, 48 Mich App 622 ; 211 NW2d 51 (1973), the McShan panel reversed on the basis of the alibi instruction, saying at 53 Mich App 417 -418; 219 NW2d 798 : "We are constrained to hold that the failure of the trial court to instruct the jury with respect to the burden of proof concerning the defense of alibi constitutes manifest injustice and thus reversible error.” A similar instruction to that in McShan was found to be reversible error in People v William Johnson, 54 Mich App 678, 683-684 ; 221 NW2d 452, 455 (1974), wherein Judge T.

1975Relying upon People v Erb, 48 Mich App 622 ; 211 NW2d 51 (1973), the McShan panel reversed on the basis of the alibi instruction, saying at 53 Mich App 417 -418; 219 NW2d 798 : "We are constrained to hold that the failure of the trial court to instruct the jury with respect to the burden of proof concerning the defense of alibi constitutes manifest injustice and thus reversible error.” A similar instruction to that in McShan was found to be reversible error in People v William Johnson, 54 Mich App 678, 683-684 ; 221 NW2d 452, 455 (1974), wherein Judge T.

2017In these circumstances, defendant has not shown that counsel performed unreasonably or that, but for counsel’s performance, there was a reasonable probability of a different outcome.3 Uphaus (On Remand), 278 Mich App at 185. 3 In his Standard 4 brief, defendant asks that we remand for an evidentiary hearing to develop the testimony of his alibi witnesses in order to determine whether counsel was ineffective for failing to present an alibi defense; and, defendant has presented this Court with affidavits from the two witnesses.

2017In these circumstances, defendant has not shown that counsel performed unreasonably or that, but for counsel’s performance, there was a reasonable probability of a different outcome.3 Uphaus (On Remand), 278 Mich App at 185. 3 In his Standard 4 brief, defendant asks that we remand for an evidentiary hearing to develop the testimony of his alibi witnesses in order to determine whether counsel was ineffective for failing to present an alibi defense; and, defendant has presented this Court with affidavits from the two witnesses.

1977And you will remember the balance of my instruction with regard to the alibi defense.” While this language is not identical to that prohibited by People v McCoy, 392 Mich 231 ; 220 NW2d 456 (1974), it is substantially similar and conveys the same idea.

1977And you will remember the balance of my instruction with regard to the alibi defense.” While this language is not identical to that prohibited by People v McCoy, 392 Mich 231 ; 220 NW2d 456 (1974), it is substantially similar and conveys the same idea.

2017Therefore, there is no basis for concluding 5 People v Ginther, 390 Mich 436, 443 ; 212 NW2d 922 (1973). -9- that any witness could have aided Swilley in establishing an alibi defense.

2017Therefore, there is no basis for concluding 5 People v Ginther, 390 Mich 436, 443 ; 212 NW2d 922 (1973). -9- that any witness could have aided Swilley in establishing an alibi defense.

1989A jury is left with the impression that by defendant's unsuccessful attempt to follow through with his alibi, guilt is rendered more presumable and apparent. [ Shannon, supra at 143 .] However, it is well settled that the prosecution may comment on the filing of a notice of alibi by a defendant and upon defendant's failure to produce corroborating witnesses after defendant has actually put forth an alibi defense.

1989A jury is left with the impression that by defendant’s unsuccessful attempt to follow through with his alibi, guilt is rendered more presumable and apparent. [Shannon, supra at 143 .] However, it is well settled that the prosecution may comment on the filing of a notice of alibi by a defendant and upon defendant’s failure to produce corroborating witnesses after defendant has actually put forth an alibi defense.

2026Trakhtenberg, 493 Mich at 52-53 .

2020This Court vacates that portion of the judgment of the Court of Appeals, with this Court stating that “challenging the prosecution’s expert would not have undermined the defendant’s alibi defense.” To obtain a new trial based on a claim of ineffective assistance of counsel, “defendant must show that (1) counsel’s performance fell below an objective standard of 2 reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” People v Trakhtenberg, 493 Mich 38, 51 (2012).

2018Generally, “if an alibi defense is accepted by the jury, a defendant cannot be convicted.” People v Erb, 48 Mich App 622, 629 ; 211 NW2d 51 (1973).

2018Generally, “if an alibi defense is accepted by the jury, a defendant cannot be convicted.” People v Erb, 48 Mich App 622, 629 ; 211 NW2d 51 (1973).

2019Second, the defendant must show that, but for counsel’s deficient performance, a different result would have been reasonably probable. [People v Armstrong, 490 Mich 281, 289-290 ; 806 NW2d 676 (2011) (citations omitted).] Belton first argues that defense counsel’s failure to object to the trial court’s failure to read the alibi instruction to the jury constituted ineffective assistance of counsel given that he asserted an alibi defense at trial.

2019Second, the defendant must show that, but for counsel’s deficient performance, a different result would have been reasonably probable. [People v Armstrong, 490 Mich 281, 289-290 ; 806 NW2d 676 (2011) (citations omitted).] Belton first argues that defense counsel’s failure to object to the trial court’s failure to read the alibi instruction to the jury constituted ineffective assistance of counsel given that he asserted an alibi defense at trial.

2025Id. at 418-419 .

2024Id. at 420.

2025Ackley, 497 Mich at 389 .

2020See Ackley, 497 Mich at 389 .

2016MCL 769.26; Lukity, 460 Mich at 495 . -6- Next, Upshaw contends that he was deprived of his Sixth Amendment right to the effective assistance of counsel, where counsel failed to investigate potential alibi witnesses and failed to file the required notice of intent to present an alibi defense, MCL 768.20.4 At trial, Upshaw called to the stand the manager of a restaurant where Upshaw was employed at the time of the robbery, and the manager testified that he drove Upshaw home at the end of his shift, dropping him off about 15 minutes before the robbery was committed.

2016See Sabin, 242 Mich App at 658, 660 ; see also Lukity, 460 Mich at 495-496 .

2016See Kowalski, 489 Mich at 504 .

2016As stated in People v Kowalski, 489 Mich 488, 503 ; 803 NW2d 200 (2011), “[t]his Court has defined waiver as “the intentional relinquishment or abandonment of a known right.