Law360 (September 4, 2026, 10:23 PM EDT) -- The Ninth Circuit has ordered a new trial for a man convicted of robbing a store in Washington, finding that he was not testifying in his own defense when he showed jurors that he had tattoos on his hand, unlike the hand of the man seen committing the robbery in security camera footage.

A three-judge appellate panel said Eduardo Valencia should not have been made to face cross-examination from prosecutors after showing his tattoos to jurors, finding that it was a fundamental constitutional error that affected the outcome of the trial.

"These rights are more than mere formalities — they form the backbone of a criminal justice system designed to provide all defendants with fair trials," Circuit Judge Salvador Mendoza Jr. said in the opinion. "This privilege against self-incrimination stands as a pillar of our Constitution and was deliberately safeguarded by the framers as crucial to the preservation of liberty against the overreach of government power."

A grocery store in Washington was robbed in November 2020, with two masked men entering and demanding cash from the manager. Amid the fracas one of the robbers dropped an envelope and the other lost a glove, the opinion said.

Police retrieved the glove and produced a DNA match for Valencia, and the envelope was from a school where Valencia's child was enrolled. Security footage recovered from the store, which was grainy, also caught the hand of one of the robbers, which did not appear to show any tattoos, the opinion said.

Valencia was charged in federal court with one count of Hobbs Act robbery and a count of brandishing a firearm during a robbery. Valencia's defense largely centered on the lost glove and the security video in a way that the opinion likened to Johnnie Cochran's famous defense of O.J. Simpson.

As part of the defense, Valencia sought to show the jury that his hands had tattoos to prove that he was not the person in the security footage. A trial court ruled that showing Valencia's hands constituted testimony, and required him to sit for cross-examination from prosecutors, the opinion said.

Prosecutors told the trial court, the Eastern District of Washington, that the decision to allow cross-examination likely violated Ninth Circuit precedent in United States v. Bay. The circuit in Bay held similar to Valencia's case that showing a jury hand tattoos to establish innocence does not count as testimony, the opinion said.

The district court said it would "roll the dice," and still require cross-examination, with the court finding that Valencia "should," be made to face a prosecutor. Valencia testified and when prosecutors asked how long he had tattoos on his hand, Valencia said about nine years, the opinion said.

Prosecutors later moved to reopen the case before the end of trial, claiming that it had discovered new evidence from an investigator. The investigator said she had found a Facebook photo from June 2020 showing Valencia without tattoos on his hand, the opinion said.

The jury later requested a current photo of Valencia's hands, and found him guilty on both counts. Valencia was sentenced to a 162-month custodial sentence, the opinion said.

Valencia appealed the decision, claiming that he should not have been made to testify in his case, and that the trial court violated Ninth Circuit precedent. The government argued that the decision requiring cross-examination was not an error, or if it was, the error was harmless, the opinion said.

The Ninth Circuit ruled that under Bay the trial court was required to treat the showing of Valencia's hands as non-testimony evidence. The panel ruled that the court's "roll of the dice" resulted in a constitutional error that affected Valencia's right to a fair trial, the opinion said.

An attorney representing Valencia and a spokesperson for the U.S. Attorney's Office for the Eastern District of Washington did not respond to a request for comment.

Circuit Judges Jennifer Sung, Salvador Mendoza Jr. and Roopali H. Desai sat on the panel for the Ninth Circuit.

The government is represented by Ian L. Garriques, Richard R. Barker and Thomas J. Hanlon of the U.S. Attorney's Office for the Eastern District of Washington.

Valencia is represented by W. Miles Pope of Goddard Pope PLLC.

The case is USA v. Eduardo Valencia, case number 24-3820 in the U.S. Court of Appeals for the Ninth Circuit.

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