Having alibi is not an affirmative defense. R.C.M. 916(a).
C.M. 701(b)(1) requires that noticed be given when alibi evidence will be presented. In United States v. Townsend, 23 M.J. 848 (A.F.C.M.R. 1987), the Court held that exclusion of alibi evidence because of lack of notice is a drastic remedy to be employed only after considering the disadvantage to opposing counsel and the reason for failing to provide notice. Similarly, in United States v. Preuss, 34 M.J. 688 (N.M.C.M.R. 1991), the Court held that the military judge abused his discretion when he excluded defense testimony because R.C.M. 701(b)(1) notice requirements were not met.
Raised by Evidence
An alibi defense is raised when some evidence shows that the accused was elsewhere at the time of the commission of a crime.
Military judge is under no sua sponte obligation to instruct on an alibi defense. R.C.M. 920(e)(3). See United States v. Boyd, 17 M.J. 562 (A.F.C.M.R. 1983); United States v. Bigger, 8 C.M.R. 97 (C.M.A. 1953); and United States v. Wright, 48 C.M.R. 295, 297 (A.F.C.M.R. 1974). However, in United States v. Moore, 35 C.M.R. 317 (C.M.A. 1965), the Court held that when an alibi defense is raised by the evidence and the defendant requests an instruction, failure to instruct is error. See also United States v. Jones, 7 M.J. 441 (C.M.A. 1979).
In United States v. Stafford, 22 M.J. 825 (N.M.C.M.R. 1986), the Court found that if alibi raises a reasonable doubt as to guilt, the accused is entitled to an acquittal. Proof of alibi beyond a reasonable is not necessary. See also United States v. Rath, 27 M.J. 600 (A.C.M.R. 1988), where the Court held that an alibi defense can be rejected by the trier of fact even absent rebuttal by government.