O. Alibi

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

O. Alibi

Alibi, which means, literally, "elsewhere," is not an affirmative defense. E.g., State v. Mayfield, 235 S.C. 11, 109 S.E.2d 716 (1959), cert. denied, 363 U.S. 846 (1960). This was not always the case. For years it had been considered an affirmative defense to be established by the defendant by a preponderance of the evidence. E.g., State v. Jackson, 36 S.C. 487, 15 S.E. 559 (1892). However, a subsequent, well-reasoned and persuasive concurring opinion by Justice Cothran pointed out that because the State bears the burden of proof beyond a reasonable doubt that the defendant was at the scene of the crime and indeed committed it, all the defendant need do in regard to alibi is to "offer[] evidence which generates a reasonable doubt in the minds of the jury that he was at the scene of the crime when it was committed . . . ." State v. Des Champs, 134 S.C. 179, 181, 131 S.E. 420, 420 (1926) (Cothran, J., concurring). This position was adopted by the Court in State v. McGhee, 137 S.C. 256, 135 S.E. 59 (1926).

In order for the jury to be instructed about alibi, there must be evidence presented which indicates not only that the defendant was not at the scene of the crime at the time it was committed, but that he was in fact elsewhere. State v. Robbins, 275 S.C. 373, 271 S.E.2d 319 (1980). In Robbins, the Court quotes approvingly from 21 Am.Jur.2d Criminal Law § 136 to the effect that the evidence must indicate that the defendant was at another specific place...