WHAT HAPPENS WHEN YOUR LAWYER DOES NOT FILE THE PROPER NOTICE OF ALIBI WITNESSES IN YOUR GEORGIA CRIMINAL CASE?

By Ben Sessions on August 31st, 2016 in Criminal Defense

WHAT HAPPENS WHEN YOUR LAWYER DOES NOT FILE THE PROPER NOTICE OF ALIBI WITNESSES IN YOUR GEORGIA CRIMINAL CASE? ANSWER: NOTHING GOOD.

Georgia criminal case law is very hard on criminal defense lawyers that do not file the proper notice of alibi witnesses. O.C.G.A. § 17-16-6 provides the actions that should be taken by a trial court when a criminal defense attorney fails to follow the correct procedure for giving the State notice of alibi witnesses:

If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery, inspection, and interview and may prescribe such terms and conditions as are just.

The best that a criminal defense attorney can hope for is a finding by the trial court that does not include a finding of bad faith by the lawyer or prejudice to the prosecution:

Ware opted for reciprocal discovery and the state made a demand that Ware provide notice of his intent to offer a defense of alibi. See OCGA §§ 17-16-2(a); 17-16-5(a). During the weekend prior to the trial, Ware’s counsel faxed a notification to the state of his intention to call Ware’s mother as an alibi witness. The state objected and moved to exclude the witness on the ground that the notice was untimely. Ware’s counsel maintained that Ware’s mother did not have a constant address or a telephone and that he simply could not reach her prior to trial. He contended that he had recently learned that she could corroborate Ware’s testimony that Ware was with her on the day and time of the robbery. He further stated that she was in court and available to be interviewed by the state.

The trial court granted the state’s request and excluded Ware’s mother from testifying. Significantly, the trial court stated that its ruling was “based on the [c]ourt’s finding, not of bad faith, but that the defense ha [d] failed to comply with the requirement for written notice of alibi.”

Georgia law is clear that, upon a demand by the state, a defendant is required to disclose in writing an intention to rely upon an alibi defense. OCGA § 17-16-5(a).2 See Tubbs v. State, 276 Ga. 751, 752-753(1), 583 S.E.2d 853 (2003). The trial court is authorized to impose various sanctions for violations of OCGA § 17-16-5, the most severe of which is the exclusion of the defendant’s evidence:

If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of [OCGA § 17-16-5], the court may order the defendant to permit the … interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from … presenting **799 the witness not disclosed, or may enter such other order as it deems just under the circumstances.

(Emphasis supplied.) OCGA § 17-16-6. By the plain terms of the statute, however, the sanction of exclusion is reserved for instances in which the trial court finds prejudice to the state and bad faith by the defense. Id.; Brown v. State, 268 Ga.App. 24, 27(2), 601 S.E.2d 405 (2004) (“[A] showing of bad faith and prejudice to the state is required to warrant exclusion of evidence.”) (footnote omitted). See also Tubbs, 276 Ga. at 753(2), 583 S.E.2d 853; Massey v. State, 272 Ga. 50, 51-52(4), 525 S.E.2d 694 (2000).

Ware v. State, 298 Ga. App. 232, 233–34, 679 S.E.2d 797, 798–99 (2009)