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Presenting a digital alibi defense for a falsely accused client

Posted by Larry Avallone | Feb 07, 2020 | 0 Comments

I had a soon to be client call me in a panic. The police had detained and interviewed him about a felony criminal mischief (vandalism) case. A woman, who he did not know, identified him as the man who purposely did thousands of dollars of damage to her car. My client told me that not only did he not know her, he wasn't anywhere near the scene of the crime when this damage occurred. How could they think it was me he asked? She was convinced that it was him, but as it turns out in many cases, she had mistakenly identified the wrong person. 

The police were convinced by the women's eyewitness identification of my client, so the charges were filed. 

I went to work on the alibi defense. In Florida, an alibi is a factual defense whereby an accused presents proof that he or she could not have committed a crime because he or she was elsewhere during the time that the crime was committed. My client reconstructed his day for me. He had been to several locations that day. The problem was, at the exact moment the crime was reported to have been committed, my client was home alone. The good news was his home was 20 miles from the scene of the crime, the bad news was there wasn't another person to verify the alibi. 

So, what about a digital alibi? These days most people don't go anywhere without their smartphone and that was true for my client. The smartphone has GPS and (iPhone in particular) is keeping a log of all of the significant locations that it visits. I work with a private investigator who is well versed in the latest technology and we decided to download my client's cellphone to reconstruct his day. We used software called Cellbrite. This software is expensive but very effective. 

If you use an iPhone, you can view your location data by going to settings>privacy>location services>system services>significant locations. 

In short order we were able to reconstruct all of my client's movements that day with timestamps and precise location data. Once we mapped the locations, it was clear that it was impossible for him to have committed this crime. I presented my findings to the prosecutor and the case was dismissed.  

Florida Rule of Criminal Procedure Rule 3.200 Notice of Alibi 

This Rule provides that, upon written demand by the prosecutor, the defendant must, at least ten days before, file and serve on the prosecuting attorney a notice in writing of an intention to claim an alibi. This Notice of Alibi must contain specific information as to the place at which the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or the defendant's attorney, the names and addresses of the witnesses by whom the defendant proposes to establish the alibi. 

Within five days after receiving the defendant's alibi witness list (contained in the Notice of Alibi), the prosecuting attorney must file and serve on the defendant the names and addresses (as particularly as are known to the prosecuting attorney) of the witnesses the state proposes to offer in rebuttal to discredit the defendant's alibi at the trial of the cause. If additional witnesses or information come to light in the time before trial, both the defendant and prosecutor remain under an obligation to disclose information that would have otherwise been required under Rule 3.200. 

If a Florida defendant fails to file and serve a copy of the Alibi Notice, the court may exclude evidence offered by the defendant for the purpose of providing an alibi, except for the defendant's own testimony. 

When you are considering a Volusia County criminal defense attorney, in addition to knowledge and experience, consider the resources that the firm is willing to dedicate to pursuing your defense. An alibi defense has very specific notice requirements and if you don't follow them the court could keep your alibi defense out.

About the Author

Larry Avallone

Larry Avallone is a Volusia County Florida based Board Certified Criminal Trial Attorney. He has been a Deputy Sheriff and a State Prosecutor and he exclusively practices criminal defense law.

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