Posted Nov 15, 2013 05:10 pm CST
A Maryland judge has refused to admit video footage of a now-deceased victim’s eye-blinking as evidence in a murder case, saying that to do so would violate the defendant’s Sixth Amendment right to confront witnesses.
Prosecutors had argued that paralyzed shooting victim’s eye-blinks to identify his alleged attacker fell within the dying declaration exception to the hearsay rule, and Judge Leo E. Green Jr. agreed that it was, even though it was another two years before Melvin Nathaniel Pate actually died, reports the Washington Post (reg. req.).
However, the judge also ruled that allowing the jury in the Prince George’s County case to see Pate blinking at a photo lineup of suspects to identify his shooter was unconstitutional.
“The only way that we can assure that Pate’s identification of Hailes was accurate is through examination and most importantly cross-examination,” wrote Green in a Thursday opinion. “The videotape depicting Pate’s identification is less than 2 minutes and consists of Pate viewing 6 photos. The court has nothing more.”
Defendant Jermaine Hailes is scheduled to be tried next month. He is accused of shooting Pate during what prosecutors describe as a robbery of the victim during what was supposed to be a sale of marijuana by Pate.
Hat tip: Eldersburg Patch
ABAJournal.com: “Blinks of paralyzed victim lead to guilty verdict; appeal is planned”