IV. ARRAIGNMENT AND PRETRIAL

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Rule 12.1: Notice of Alibi.

(a) State’s Request and Defendant’s Notice.

(1) State’s Request for Notice of Alibi Defense. A district attorney general who desires disclosure of a potential alibi defense shall serve the defendant with a written request to be notified of an intention to offer an alibi defense. The request shall state the time, date, and place at which the alleged offense was committed.

(2) Defendant’s Notice in Response. On written request of the district attorney general under Rule 12.1(a)(1), the defendant intending to offer an alibi defense shall serve on the district attorney general a written notice of this intention.

(A) Content. The defendant’s notice shall state:

(i) the specific place or places at which the defendant claims to have been at the time of the alleged offense; and

(ii) the name and address of each alibi witness on whom the defendant intends to rely.

(B) Timing. Unless the court directs otherwise, the defendant shall serve such notice within ten days of the state’s request.

(b) State’s Response to Defendant’s Notice.

(1) Disclosure. If the defendant serves a notice pursuant to Rule 12.1(a)(2), the district attorney general shall disclose in writing to the defendant the name and address of:

(A) each witness on whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense; and

(B) each witness on whom the state intends to rely to rebut testimony of any of the defendant’s alibi witnesses.

(2) Timing. Unless the court directs otherwise, the district attorney general shall serve this notice within ten days after receiving defendant’s notice of alibi but in no event less than ten days before trial.

(c) Continuing Duty to Disclose. If before or during trial either party learns of the existence of an additional witness who should have been included in the information furnished under Rule 12.1(a)(2)(A) or 12.1(b)(1), that party shall promptly notify the other party of the name and address, if known, of such additional witness.

(d) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. This rule does not limit the defendant’s right to testify.

(e) Good Cause Exceptions. For good cause shown, the court may grant an exception to any of the requirements of this rule.

(f) Inadmissibility of Withdrawn Alibi. The following is not admissible in any civil or criminal proceeding against a defendant who gave alibi notice under Rule 12.1(a)(2):

(1) evidence of an intention to rely on an alibi defense, later withdrawn; or

(2) evidence of statements made in connection with that intention.

Advisory Commission Comment.

This rule conforms to the federal rule, and is part of the discovery package.

Rule 12.1 discovery is triggered by the written demand of the district attorney general. Note also that the state must reciprocate by furnishing the names of its witnesses who are expected to contradict the alibi witnesses.

Of significance to the trial judges is the provision of section (e): For good cause shown, the court may grant an exception to the requirements of this rule. The court should always state on the record the reason(s) for such a ruling.

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