So one of the “Petitions of the Week” floating around the SCOTUS calendar is another illustration of the disconnect between those who are making the decisions that govern criminal trials and those who have actually conducted such trials, the two groups being mutually exclusive at this point.
Weighing in as an amicus on the almost absurdly subtle “issue presented” with a self-described “strong interest”, the National Association of Criminal Defense Lawyers makes this assertion:
Until this case, governing precedent across the nation had held uniformly that trial counsel’s failure to introduce neutral, credible alibi testimony undermines confidence in the verdict such that a reasonable probability exists that, but for trial counsel’s error, the outcome would have been different.
“Neutral, credible” is an important qualifier, although in the hands of the SCOTUS there’s no telling how messed up that characterization might get. Look what they’ve done with the term “materiality”, for example.
But see here. The NACDL also refers to “testimony”. We think any alibi that relies upon testimony of any witness – as opposed to, say, independent video footage of the defendant being elsewhere – is an extremely dangerous defense, for reasons we have discussed before. The defense labors against a nearly unbridgeable credibility deficit with respect to every “witness” it produces, compared with the government that is prosecuting, whose witnesses are presumptively believed. And the presumption is nearly – not quite, but nearly – conclusive.
So the real and present danger for the defense is that your “alibi witness” will be disbelieved by the jury, and if they disbelieve the alibi witness there is only one alternative that logically follows – at least to most juries – and that alternative is that the defendant is guilty because he’s lying about not being there, and recruiting others to lie for him.
A disbelieved alibi defense, in other words, is fatal 100% of the time.
But realistically, you’d have to do some criminal defense work to understand that. And not only would you have to do criminal defense work, you’d have to understand why the dogma that “neutral, credible” alibi witnesses must be produced or the defense has been incompetent has been established in the first place: prosecutors and judges like it. They know how easy it is to shoot down an alibi defense and obtain a conviction.
And not one of the justices on the SCOTUS has ever done any criminal defense, and neither have any of their law clerks.
We don’t know what other criminal-defense type issues might appear in the SCOTUS this term but this one bothers us because of where it might end up.