Instruction 9.120, Criminal Model Jury Instructions for Use in the District Court

ALIBI

You have heard testimony suggesting that the defendant was not

present at the place and time when the offense charged in the complaint is

alleged to have occurred.

Such testimony is commonly referred to as alibi evidence. Now I

caution you not to give the word “alibi” any sinister connotation. It is only

a shorthand phrase for a very important issue in this case: did the

defendant commit the crime as charged, or was he (she) elsewhere at the

time and therefore necessarily innocent?

In considering this matter, please remember that the Commonwealth

has the burden of proving beyond a reasonable doubt that the defendant

committed the offense charged, and of course that includes proving that

the defendant was present at the scene and not somewhere else at the

time. The defendant has no duty to call witnesses or produce evidence on

this or any other element of the crime.

In this case you have heard

If there was evidence of a complete alibi.

evidence suggesting that the defendant was [where] at the

time when this offense was committed. You will have to decide

whether or not you believe that evidence. Obviously, if you

believe it, then the Commonwealth has failed to prove the

defendant’s guilt beyond a reasonable doubt and you must find

him (her) not guilty. But even if you disbelieve some or all of

that evidence, that doesn’t mean that the defendant is

automatically guilty. You still have to find, on all the evidence,

that the Commonwealth has proved the defendant’s guilt beyond

a reasonable doubt.

Please give this issue your careful consideration, since in some cases

an alibi may be the only refuge of an innocent person. After you consider

all the evidence, if the Commonwealth has proved beyond a reasonable

doubt that the defendant was present and committed the crime as charged,

you should find the defendant guilty. On the other hand, if you have a

reasonable doubt about whether the defendant was present at the time and

place of the offense, or about any other element of the crime, then you

must find him (her) not guilty.

The model instruction is based on the recommended instruction in Commonwealth v. McLeod, 367

Mass. 500, 502 n.1, 326 N.E.2d 906, 906 n.1 (1975), quoting from E. Devitt & C. Blackmar, Federal

Jury Practice and Instructions § 11.31 (2d ed. 1970), on the recommended instruction in

Commonwealth v. Bowden, 379 Mass. 472, 480 n.3, 399 N.E.2d 482, 488 n.3 (1980), and on Federal

Judicial Center, Pattern Criminal Jury Instructions § 53 (1983 ed.).

It is preferable to charge on alibi upon request, but it is not error to refuse to do so if the jury is clearly

instructed that the burden is on the Commonwealth to prove every element of the offense.

Commonwealth v. Medina, 380 Mass. 565, 579-580, 404 N.E.2d 1228, 1236-1237 (1980);

Commonwealth v. Keaton, 36 Mass. App. Ct. 81, 88-89, 628 N.E.2d 1286, 1290 (1994). On request,

a judge should give such an instruction. Commonwealth v. Dreyer, 18 Mass. App. Ct. 562, 567, 468

N.E.2d 863, 867 (1984).

It is reversible error to put the burden of proof as to alibi on the defendant. It is “not ordinarily helpful”

to single out alibi evidence for “rigid scrutiny” and the like in a charge, but if this is done it must be

balanced with an instruction that an alibi may be the only refuge of the innocent. McLeod, 367 Mass.

at 502, 326 N.E.2d at 905. See also Bowden, 379 Mass. at 480-482, 399 N.E.2d at 488-489;

Commonwealth v. Palmarin, 378 Mass. 474, 478-479, 392 N.E.2d 534, 537 (1979); Commonwealth

v. Garrett, 8 Mass. App. Ct. 894, 393 N.E.2d 954 (1979); Commonwealth v. Cobb, 5 Mass. App. Ct.

421, 423-424, 363 N.E.2d 1123, 1124-1125 (1977), S.C. 6 Mass. App. Ct. 921, 380 N.E.2d 142

(1978). A charge should not suggest that the defendant has some burden to “substantiate” his or her

alibi or to “create” a reasonable doubt. Id.