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Alibi Defense in Georgia Criminal Cases

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Chapters of the Code it cites

  • § 17-16

In a Georgia felony case, an alibi creates a notice deadline only after two steps: the defendant opts in writing into the reciprocal discovery article, and the prosecutor serves a written alibi demand. The defendant then has until ten days after the demand or ten days before trial, whichever is later, to name the places and the witnesses. Nothing in that procedure shifts a burden of proof to the defendant.

Step one: the defendant’s election under § 17-16-2

O.C.G.A. § 17-16-2(a) makes the felony discovery article apply to “all criminal cases in which at least one felony offense is charged in the event that at or prior to arraignment, or at such time as the court permits, the defendant provides written notice to the prosecuting attorney that such defendant elects to have this article apply”. The alibi rule in § 17-16-5 is part of that article. Three points follow from the text:

  • Without the election, the article does not apply, with one exception: under § 17-16-2(c) it is “deemed to have been automatically invoked” when a defendant has sought equivalent discovery under the Civil Practice Act or the other provisions that subsection lists.
  • When one defendant in a multidefendant case elects, the article applies “to all defendants in the case, unless a severance is granted.”
  • The election is a trade. The defendant gains the article’s discovery and takes on its duties, including alibi notice.

Step two: the State’s demand

Under § 17-16-5(a), the process starts with a written demand by the prosecuting attorney “within ten days after arraignment, or at such time as the court permits”. The demand must state “the time, date, and place at which the alleged offense was committed”. That requirement works for the defense too: it fixes the time and place the alibi has to answer.

The defendant’s notice

The defendant serves written notice of the intention to offer an alibi “within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court”. The notice states:

  • “the specific place or places at which the defendant claims to have been at the time of the alleged offense”; and
  • the names, addresses, dates of birth, and telephone numbers of the alibi witnesses, “if known to the defendant,” unless previously supplied.

The State’s rebuttal list

The duty runs both ways. Under § 17-16-5(b), the prosecutor must serve a written list of the witnesses the State will use to rebut the alibi, with the same identifying details, “within five days of the defendant’s written notice but no later than five days before trial, whichever is later”.

The statute adds two rules that apply to both sides:

  • New witnesses. A party who learns of an additional alibi or rebuttal witness before or during trial “shall promptly notify the other party”.
  • Witness safety. On a showing that disclosure “would create a substantial threat of physical or economic harm to a witness,” the court may grant an exception to the disclosure requirements.

Withdrawing the notice

Under § 17-16-5(e), if the defendant withdraws the notice, “the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney may offer any other evidence regarding alibi.” The withdrawal keeps the notice itself out of the trial, not the facts behind it.

When a side does not comply

O.C.G.A. § 17-16-6 gives the court the same options against the State and the defendant: order the discovery or an interview of the witness, grant a continuance, or “upon a showing of prejudice and bad faith,” prohibit the party from presenting the evidence or the witness not disclosed, or enter “such other order as it deems just under the circumstances.” Exclusion requires both prejudice and bad faith.

Why the rule is reciprocal

The Supreme Court of the United States upheld Florida’s notice-of-alibi rule in Williams v. Florida, 399 U.S. 78 (1970), noting that “Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.” Three years later, in Wardius v. Oregon, 412 U.S. 470 (1973), it held that “the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.” Georgia’s § 17-16-5(b) is that reciprocal duty.

When an alibi does not fit the defense

An alibi is a claim that the accused was somewhere else, and it has to match the rest of the defense. In Saunders v. State, 323 Ga. 136 (2025), defense counsel declined the trial court’s offer of an alibi jury instruction because the defendant had testified that he was on the same road where the killing happened, and counsel did not want the charge “used against” him in deliberations. The Supreme Court of Georgia held that the defendant had not shown that decision to be objectively unreasonable. Whether an alibi or a challenge to identification fits a case better is a strategy question; identification evidence is covered in eyewitness identification procedures in Georgia, and how requested charges work in jury instructions and the Allen charge in Georgia.

The alibi timeline

  1. At or before arraignment, or later with the court’s permission: the defendant’s written election under § 17-16-2(a).
  2. Within ten days after arraignment, or when the court permits: the State’s written alibi demand stating time, date, and place.
  3. The later of ten days after the demand or ten days before trial, unless the court orders otherwise: the defendant’s alibi notice.
  4. The later of five days after the defendant’s notice or five days before trial: the State’s rebuttal witness list.
  5. Before and during trial: prompt notice of any additional witness.

Sources

General information about Georgia criminal law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.