Why the State's "Alibi-by-Routine" Claim in the Adnan Syed Case is an Oxymoron and Why it Matters

Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. Thus, in order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.As I noted in a prior post, in its petition for writ of certiorari in the Adnan Syed case, the State set up a false dichotomy: that Cristina Gutierrez had the choice to either (1) present an "alibi-by-routine" defense, whereby witnesses would claim that it was Adnan's routine to remain at school between the end of classes and the start of track practice; or (2) present Asia McClain as an alibi witness who would testify that she saw Adnan at the Woodlawn Public library between the end of classes and the start of track practice on January 13, 1999.

I labeled this false dichotomy because it was factually false; Gutierrez presented no witnesses who testified that it was Adnan's routine to remain at school between the end of classes and the start of track practice. Upon thinking about it further, though, this supposed dichotomy is also legally false because the phrase "alibi-by-routine" is an oxymoron. And this isn't just me being didactic; it has significance for the current appeal.

In its petition for writ of certiorari, the State argues that "[a]s part of Syed’s overall trial strategy, his seasoned counsel developed and pursued an 'alibi-by-routine' defense, seeking to place Syed on the evening of the victim’s disappearance at school, followed by track practice and then services at his mosque." A search of Westlaw, however, reveals no court opinions or legal briefs that use the phrase "alibi-by-routine" or "alibi by routine."

What you do find are cases concluding that evidence of a "routine" defense is fundamentally different from an "alibi" defense. For instance, in State v. Paniagua-Montes, 330 P.3d 1250 (Or.App. 2014), the State claimed that the defendant couldn't have his grandmother and aunt testify about his daily routine because they weren't listed in his alibi notice as required by ORS 135.455(2). The Court of Appeals of Oregon disagreed, concluding that

the grandmother's and aunt's testimony about defendant's morning routine was not alibi evidence as defined by ORS 135.455(2) As noted, the grandmother would have testified that defendant left the grandmother's house at about the same time that she left each morning, and the aunt would have testified that defendant typically left the grandmother's house in the mornings before anyone else had gotten up—that his pattern was to get up early, make coffee, and then leave. Even though that testimony implied that defendant was elsewhere, or typically was elsewhere, neither the grandmother nor aunt would have testified about where defendant actually went—that defendant was at work, at the store, or at some other specified place. Accordingly, their testimony was not offered to prove that defendant was at a particular place other than the place where the alleged offenses were committed. Rather, their testimony would establish only that at the time of the alleged offenses, defendant was absent, or typically absent, from the place where the alleged offenses were committed. Accordingly, the trial court erred by excluding the grandmother's and aunt's testimony about defendant's morning routine.

Similarly, in State v. Nance, 2008 WL 5170165 (N.J. App. 2008), the court concluded that

proffered testimony was not properly “alibi,” but habit or routine practice, which is admissible pursuant to N.J.R.E. 406. In other words, the alibi-notice rule, Rule 3:12-2, was not applicable.

The court is referencing New Jersey Rule of Evidence 406, the state counterpart to Federal Rule of Evidence 406, which covers evidence of habit or routine practice.

It makes sense that these courts have found that "routine" evidence is distinct from "habit" "alibi" evidence. As the Court of Special Appeals of Maryland noted in Adnan's case, 

The Court of Appeals has defined an alibi witness as follows: "[A]n 'alibi' witness [is] a witness whose testimony 'must tend to prove that it was impossible or highly improbable that [the defendant] was at the scene of the crime when it was alleged to have occurred.'"

Therefore, given that the State claimed that Hae was dead by 2:36 P.M. on January 13, 1999, (1) testimony by Asia McClain that she saw Adnan at the Woodlawn Public Library from 2:20-2:40 P.M. on January 13, 1999 would be an alibi; but (2) testimony that Adnan routinely remained at school between the end of classes and the start of track practice would not be an alibi.

So, why does this matter? If a defendant presents an alibi defense, he is entitled to an "alibi instruction" that was read to the jury. I believe that, as of 2000, the pattern alibi instruction read as follows:

Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. Thus, in order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it.

Simply put, if Asia testified, Adnan would have been entitled to this instruction. Conversely, even if Adnan had presented witnesses to testify about his typical routine before track practice, he would not have been entitled to this instruction.

So, how important is this instruction? In Robertson v. State, 685 A.2d 805 (Md. 1996), Roy Robertson was charged with murder and presented an alibi defense. Despite his request, however, the trial judge did not give the alibi instruction. According to the Court of Special Appeals, the failure of the trial judge to give this instruction alone was enough to warrant a new trial. According to the court,

Because an alibi is not an affirmative defense, a specific alibi instruction eliminates the possibility that the jury will place the burden of proof on the defense with respect to that issue....If such instructions are not given, “there is a likelihood that the jury will become confused about the burden of persuasion[,]....” and thereby assume that the defendant bears the burden of proving his innocence. When warranted by the facts and circumstances of the particular case, alibi instructions reinforce a guiding principle of our criminal jurisprudence that the burden is always with the State to prove beyond a reasonable doubt that the defendant was present at the scene of the crime at the time the State asserts that the crime was committed. Without such instructions, there is an inherent risk that a jury may simply weigh the defendant's alibi claim against the State's evidence and convict on a mere preponderance of the evidence.

So this is not a minor or technical error by the State. They've staked their appeal in large part on Cristina Gutierrez making the strategic decision to forego contacting Asia McClain in favor of an "alibi-by-routine" defense, but it turns out that (1) no witnesses testified about Adnan's pre-practice routine; (2) there's no such thing as an "alibi-by-routine;" and (3) the State's hypothesized "routine" defense would not have yielded the valuable instruction that would have come with calling Asia McClain as an alibi witness.

-CM