Court Rules Jury Won't See Video of Man Blinking to ID His Shooter

A judge decided Thursday that video of a blink that reportedly identified an injured man's shooter will not be shown to a Prince George’s County jury, according to the Washington Post.

Judge Leo E. Green Jr. barred the evidence from a trial set for December, ruling that showing the video to jurors would have violated the defendant’s Sixth Amendment right to face his accuser, the newspaper said. Had the blink testimony been allowed, it would have been the first time such evidence appeared in a Maryland murder case and the fourth time in the United States.

The video in question shows police detectives flashing six photos to Pate days after he was shot, the Post reports. He is asked to “blink hard” to indicate which of the photos resembles the person who shot him. Pate blinks at Hailes’s picture.

Green ruled on whether video of Melvin Nathaniel Pate blinking at a photo lineup should be included in Jermaine Hailes’s murder trial, the Post said. Pate, 29, died in 2012, two years after the video was recorded.

Allowing jurors to see the video would have violated Hailes’s constitutional right to confront his accuser, Green wrote in his ruling.

During a hearing two weeks ago, the newspaper said prosecutors argued that the video should be considered a “dying declaration,” one of the unique circumstances under which such material could be allowed at a trial. But Pate's death two years after the video was made complicated whether his blink was really a “dying” declaration.

According to the newspaper account, Pate was shot during a drug sale gone bad in November 2010. A bullet fired during the robbery hit him in the face and lodged at the top of his spine, leaving Pate paralyzed from the neck down.