No Right To Present A Defense Based On Uncorroborated Or Ambiguous Evidence

Ninth Circuit reviews the admissibility of statement offered in support of the theory of self-defense in a state murder trial under the constitutional right to present a defense; a statement made after the shooting was excluded based on the lack of corroboration and ambiguous nature of the statement, in Trillo v. Biter, _ F.3d _ (9th Cir. June 16, 2014)

Under the Sixth Amendment and Fifth Amendment, a defendant has a constitutional Right to Present A Complete Defense. There are limits to the admissibility of evidence under the Constitution. The Ninth Circuit recently considered the exclusion of evidence offered under this right.

State Trial Court Trial: Excluding Statement Offered In Support Of The Theory Of Defense

Defendant Trillo was prosecuted for second degree murder in state court based on a fight that broke out during a party after he used a gun that killed one of the partygoers. At trial, he offered a theory of self-defense:

According to Trillo, during the fight he was hit in the back, and then saw someone approach him with a knife. At trial, Trillo’s attorney attempted to have admitted witness testimony that a man had approached the victim after the shooting asking “Was it worth it?” In a hearing held outside of the jury’s presence, the trial court refused to allow this testimony, because there was an insufficient foundation to admit the statement.

Trillo, _ F.3d at _. The statement was excluded for failure to satisfy Cal. Evid. Code § 1240, which provides for the admission of spontaneous statements that “(a) [p]urport[ ] to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) [were] made spontaneously while the declarant was under the stress of excitement caused by such perception.” The jury convicted the defendant. His murder conviction was affirmed on state court appeal.

The defendant then petitioned for federal habeas review claiming his constitutional right to present a defense was infringed by the exclusion of the statement. The U.S. District Court for the Eastern District of California denied the petition. The defendant claimed constitutional error on appeal arguing that the proffered "testimony supported his self-defense theory, because the unidentified man was rhetorically asking the victim why he chose to advance toward Trillo while armed."

Ninth Circuit Review: Considering Sufficiency Of The Proffer

The Ninth Circuit framed the issue on appeal as “whether the trial court violated petitioner’s Sixth Amendment right to present a meaningful defense by excluding testimony regarding a statement made by a witness to the victim which might have corroborated petitioner’s theory of defense.” The circuit summarily dispatched the claim based on the tenuous proffer:

There was no evidentiary corroboration at all for the witness statement in Trillo’s trial. The trial court excluded the testimony of a single person who would have testified that another man had asked the victim “Was it worth it?” No other witnesses saw or testified to this alleged statement. Indeed, as the California Court of Appeal pointed out, it was not at all clear what “Was it worth it?” meant. Without any corroboration, the trial court’s decision to
exclude the testimony could not violate the Constitution.

Trillo v. Biter, _ F.3d at _ (citing United States v. Hayat, 710 F.3d 875, 898-98 (9th Cir. 2013) (noting exclude "statement lacked the requisite 'persuasive assurances of trustworthiness'") (citation omitted)).

The circuit also clarified that on federal habeas review it was not considered about the admissibility of the statement under state law. Instead, its focus was whether the Constitution required the statement to be admitted. Trillo v. Biter, _ F.3d at _ (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“our habeas powers [do not] allow us to reverse [a] conviction based on a belief that the trial judge incorrectly interpreted” the state evidence code; “The only question for us is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.”) (internal quotation marks omitted)); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2008) (state evidentiary rules “do not violate a defendant’s constitutional rights unless they infringe upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve”) (alterations and citations omitted)).


The Trillo case highlights the obligation of the defense to meet its burden to proffer a statement under the constitutional right to present a defense. Without any corroboration, the statement was inadmissible under the Sixth Amendment.

For other cases addressing this issue, consider:


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