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Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/o3ag2ah

On November 26, 2010, Prince George’s County Detective Latasha Green visited the Shock Trauma Unit to see if Pate could identify a picture of his shooter from a photographic array. Just prior to the session, Nurse Keener had asked Pate a series of questions to determine whether he was ’alert and oriented.’ She determined that he was. Nurse Keener later testified that blinking hard is a primary method of communication for patients who are unable to speak. She elaborated on how the technique works.

Detective Green showed Pate a series of six photographs and asked him to blink hard if he saw a picture of the person who shot him. Pate blinked hard when he was shown the third picture in the photographic array but did not blink hard when shown any of the other five pictures. The third photograph was that of the appellee,  Jermaine Hailes. The photographic array procedure was recorded on videotape and was entered into evidence at the suppression hearing. State v. Hailes, 2014 WL 2191405 (Md.App. 2014).

Was Pate’s eye blinking admissible as a dying declaration? . . . .

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