“Blink” Testimony Won’t be Admitted

A recent decision by a Prince George’s County judge will exclude a video that prosecutors claim show a slain man identifying his shooter by blinking.  Judge Leo E. Green, Jr., ruled to bar the evidence because the video would have violated the Sixth Amendment. U.S. Const. amend. VI.  Specifically, it would have violated the defendant’s Sixth Amendment right to face his accuser.  Id.

The video showed Melvin Nathaniel Pate, five days after he was shot in the face, immobile in his hospital bed, attached to a breathing tube, covered with wires, and with a brace preventing his head from moving.  The investigators asked him to identify the man who shot and paralyzed him, showing them a lineup of photos of six people.  Because Pate could not talk or move, he blinked.  He was told to “blink hard” and after each picture, the investigator would ask if that was the person who shot him, after seeing the third picture, a picture of Jermaine Hailes, Pate blinks.  The debate between Hailes’ attorney, arguing that Pate’s blinking could have been natural and questioned Pate’s competence, and the Prince George’s County Assistant State’s Attorney, arguing the video showed the difference between intentional and natural blinks, was settled when Judge Green ruled to exclude the video.

The prosecutor wanted to get the video in under the dying declaration exception.  Fed. R. Evid. 804.  However, the case was more complicated than that because Pate didn’t die right after his blinking testimony.  Rather, he died in 2012, two years after the video was made after being in and out of the hospital.  Ultimately Judge Green ruled against admitting the video tape, writing that “[t]he only way that we can assure that Pate’s identification of Hailes was accurate is through examination and most importantly cross-examination . . . [t]he video tape depicting Pate’s identification is less than 2 minutes and consists of Pate viewing 6 photos . . .  [t]he court has nothing more.”

Perhaps a motivating factor in Judge Green’s decision is that there are three co-defendants who have struck plea deals and have agreed to testify against Hailes.  In this case, there is an alternative to the necessary evidence.  There have been past cases that admit blinking dying declarations.  However, there have only been three.  So while it is not unprecedented, the science of a “dying declaration” and the alleged motivation of a dying person to tell the truth seems just as speculative as a polygraph, and just as unlikely to be admitted into evidence.


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