CALCRIM No. 3400. Alibi
Judicial Council of California Criminal Jury Instructions (2024 edition)
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A. GENERAL DEFENSES
3400.Alibi
The People must prove that the defendant committed
<insert crime[s] charged>. The defendant contends (he/she) did not
commit (this/these) crime[s] and that (he/she) was somewhere else when
the crime[s] (was/were) committed. The People must prove that the
defendant was present and committed the crime[s] with which (he/she) is
charged. The defendant does not need to prove (he/she) was elsewhere at
the time of the crime.
If you have a reasonable doubt about whether the defendant was present
when the crime was committed, you must find (him/her) not guilty.
[However, the defendant may also be guilty of <insert
crime[s] charged> if (he/she) (aided and abetted/ [or] conspired with)
someone else to commit (that/those) crime[s]. If you conclude that the
defendant (aided and abetted/ [or] conspired to commit)
<insert crime[s] charged>, then (he/she) is guilty even if (he/she) was not
present when the crime[s] (was/were) committed.]
New January 2006
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to instruct on alibi. (People v. Freeman (1978) 22
Cal.3d 434, 437-438 [149 Cal.Rptr. 396, 584 P.2d 533]; People v. Alcala (1992) 4
Cal.4th 742, 803-804 [15 Cal.Rptr.2d 432, 842 P.2d 1192].) The court must give
this instruction on request when evidence of alibi has been introduced. (People v.
Whitson (1944) 25 Cal.2d 593, 603 [154 P.2d 867] [no sua sponte duty even if
substantial evidence has been introduced by the defense]; People v. Freeman (1978)
22 Cal.3d 434, 437-438 [149 Cal.Rptr. 396, 584 P.2d 533].)
The defendant is not entitled to an instruction on alibi if the prosecution does not
rely on the defendant’s presence at the commission of the crime to establish
culpability. (People v. Manson (1976) 61 Cal.App.3d 102, 211 [132 Cal.Rptr. 265]
[in prosecution for conspiracy and murder, defendant was not entitled to jury
instruction on alibi, where prosecution never contended he was present at time of
actual commission of any homicide and his presence was not requirement for
culpability].)
If the prosecution’s theory is that the defendant aided and abetted or conspired with
the perpetrator but was not present when the crime was committed, give the last
bracketed paragraph that begins with “However, the defendant may also be guilty.”
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(People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28 [272 Cal.Rptr. 34].) If this
paragraph is given, the court has a sua sponte duty to instruct on aiding and
abetting. (Ibid. [court properly instructed that alibi was not a defense in an aiding
and abetting case, but erred in failing to define aiding and abetting].)
AUTHORITY
• Burden of Proof. In re Corey (1964) 230 Cal.App.2d 813, 828 [41 Cal.Rptr.
379].
• Alibi, Aiding and Abetting. People v. Sarkis (1990) 222 Cal.App.3d 23, 26-28
[272 Cal.Rptr. 34].
RELATED ISSUES
Defendant Need Not Prove Alibi, Only Raise Reasonable Doubt
Alibi evidence need only raise a reasonable doubt that the defendant was not present
at the scene of the crime. It is therefore error to instruct the jury (1) that an alibi
must be proved by a preponderance of the evidence, (2) that alibi evidence must
convince the jury of the defendant’s innocence, (3) that the jury must give less
credit to the testimony of alibi witnesses, or (4) that the jury must give more careful
scrutiny or less weight to alibi evidence than to other evidence. (People v. Costello
(1943) 21 Cal.2d 760, 763 [135 P.2d 164].)
SECONDARY SOURCES
5 Witkin & Epstein, California Criminal Law (4th ed. 2012) Criminal Trial,
§§ 688-719.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.10 (Matthew Bender).
3401. Reserved for Future Use
CALCRIM No. 3400 DEFENSES AND INSANITY
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© Judicial Council of California.
