# Eye-blink ID - “Dying Declaration” Conviction **URL:** \ **Category:** Great Debates\ **Created:** [June 8, 2016, 9:11pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865 "2016-06-08T21:11:58Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [June 8, 2016, 9:11pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/1 "2016-06-08T21:11:58Z")
[http://www.msn.com/en-us/news/crime/conviction-after-paralyzed-man-blinked-to-id-shooter/ar-AAgOa1s?li=BBnbfcL](http://www.msn.com/en-us/news/crime/conviction-after-paralyzed-man-blinked-to-id-shooter/ar-AAgOa1s?li=BBnbfcL) > **[Court Battle Continues Over Video of Dying Man Blinking to ID His Shooter](https://patch.com/maryland/bowie/court-battle-continues-over-video-of-dying-man-blinking-to-id-his-shooter)** > > The unusual case weighs a suspect's right to face his accuser against the dying declaration of a crime victim. It would be the first time such evidence is used in a Maryland court. Jermaine Hailes was found guilty of 1st Degree Murder in the shooting death of Melvin Pate. Pate, who was paralyzed from the chest down as result of the shooting and could not speak, identified Hailes as the shooter ‘by blinking’. The blinking was captured on video. The video was used as evidence at trial even though Pate had died in 2012. > [@](#): > > Appeals court Judge Charles E. Moylan Jr. ruled in May that Pate’s blinks should be considered a “dying declaration,” which is exempt from the legal requirement that criminal defendants have the right to face their accusers, the newspaper reports. Several things at issue. First is that the video was recorded in 2010 and not introduced at trial till 2016. Pate lived for 2 years after the ID was recorded. > [@](#): > > Pate’s statement does not constitute a dying declaration, argues the defense, because Pate lived for two years after the shooting. > > The defense also argues that the Sixth Amendment gives Hailes the right to cross-examine his accuser, which is no longer possible. The decision is being appealed. IIRC, the dying declaration is only valid if death is imminent, and the declarer knows this. The articles do not say if Pate was deposed by the defense. There a few things I would like to know. _ **My Google skills have failed me in finding the answers.** _ 1. Why was the trial delayed so long? 2 years seems like plenty of time to start the trial after they have identified who they believe is guilty. Which side was dragging their heels? 2. Since Pate was unable to speak, what tests, if any, were performed to see if Pate understood what he was being asked. (was this in the video? I cannot play it) 3. What other evidence was presented at trial? Are they relying solely on the ID from Pate? 4. Do you think this qualifies as a ‘Dying Declaration’? Especially since it seems reasonable to assume that Pate did not know he was dying when he made it. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [June 8, 2016, 9:41pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/2 "2016-06-08T21:41:22Z")
> [@Typo\_Negative](#): > > 1. Why was the trial delayed so long? 2 years seems like plenty of time to start the trial after they have identified who they believe is guilty. Which side was dragging their heels? Because the victim wasn’t dead yet. They couldn’t have tried the criminal for murder if the victim is still alive – they have to wait until he dies. (And, of course, the death has to be the direct result of the actions of the criminal.) But if the victim is in a medically terminal condition and expected to die soon, the prosecutor may decide to wait until the victim dies, so he can accurately charge the suspect with the more severe crime, with the heavier sentence. If he had been charged & convicted of something like ‘assault’ 2 years ago, I don’t believe they could then charge him with murder when the victim died (‘double jeopardy’). It’s likely that the prosecutor wasn’t expecting that the doctors could keep this victim alive for 2 years, but was anticipating an earliere death. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [June 8, 2016, 10:13pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/3 "2016-06-08T22:13:45Z")
Also, of course the defense drags things out as long as possible too. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 8, 2016, 11:48pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/4 "2016-06-08T23:48:42Z")
> [@Typo\_Negative](#): > > 1. Do you think this qualifies as a ‘Dying Declaration’? Especially since it seems reasonable to assume that Pate did not know he was dying when he made it. Um… huh? Pate made the declaration while being treated at the Maryland Shock Trauma Unit in Baltimore, having been flown there subsequent to being shot in the head; his condition at the time he was admitted was “critical,” and “very unstable.” His spinal cord was severed, and one long was collapsed. His mother testified that the doctor told her that it was unlikely Pate would live more than 24 hours, and that he had never had a case that survived the type of injuries exhibited by Pate. She testified that when Pate heard the doctor say this to her, although he could not speak, and could not move, tears came out of his eyes. When the statement was taken, with video cameras capturing his blinks in answer to questions, it was an easy inference for him to make that this procedure was being done because he was not expected to survive. In Maryland, a dying declaration is an our-of-court statement offered in evidence in a prosecution for homicide, attempted homicide, or assault with intent to commit a homicide, by a declarant that is unavailable, concerning the immediate cause of death or injury, while the declarant reasonably believed death was imminent. So the checklist seems easy: this was evidence offered in a homicide trial, by a declarant who was unavailable – dead, in fact - concerning the immediate cause of his injuries, while he believed death was imminent. Yes, I believe this qualifies as a dying declaration. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 8, 2016, 11:55pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/5 "2016-06-08T23:55:17Z")
> [@Typo\_Negative](#): > > 1. Since Pate was unable to speak, what tests, if any, were performed to see if Pate understood what he was being asked. (was this in the video? I cannot play it) Immediately prior to the presentation oif the photo array, the attending nurse asked Pate a series of questions designed to verify his awareness and understanding. ---
**Author:** ![Pantastic](https://avatars.discourse-cdn.com/v4/letter/p/3bc359/32.png) [@Pantastic](https://boards.straightdope.com/u/Pantastic)\ **Post date:** [June 9, 2016, 2:21pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/6 "2016-06-09T14:21:19Z")
It takes some brass balls to argue that a murder case should be thrown out because you can’t cross-examine the victim that you killed. ---
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [June 9, 2016, 2:42pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/7 "2016-06-09T14:42:24Z")
—\> slight hijack\<----Here in Manitoba there is (or at least was) a rule that if the victim died more than a year after the injuries were inflicted the accused could not be charged with murder - it came up a victim died a year and a few months after a severe beating. The accused were charged with the highest level of assault that there is IIRC. Is there no limitation on duration after the event before the accused can’t be charged with murder? Could, theoretically, someone linger on life support for a decade or more before dying and still have the accused charged with murder? \<---- hijack over ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [June 9, 2016, 2:43pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/8 "2016-06-09T14:43:14Z")
> [@Bricker](#): > > So the checklist seems easy: this was evidence offered in a homicide trial, by a declarant who was unavailable – dead, in fact - concerning the immediate cause of his injuries, while he believed death was imminent… I’m not a lawyer, but consider the following scenario. Bob is rushed to the hospital with a stab would, where doctors don’t expect him to make it. He’s videotaped saying “Al did this. Al stabbed me”. 10 hours of surgery later, Bob has a much better prognosis. In fact, he recovers completely and becomes a marathon runner (i.e., very much not dead). In fact, he is so into marathon running he begins a campaign to run a marathon in every country. Unfortunately, one of the countries he tries to run in as a government with a dim view of rights of the accused, and Bob is thrown in jail in some backwater dictatorship over a misunderstanding. Later Steve the prosecutor decides to prosecute Al for stabbing Bob. Steve presents the videotape as a dying declaration. Al (or rather Al’s lawyer) counters that as Bob isn’t even dead, this shouldn’t count, and as he has a right to cross-examine the witness. The fact that the witness can’t be cross-examined because he’s in jail in Backwateristan is the prosecution’s problem. Is the court’s position that because the declaration was made while Bob thought he was about to die, and Bob is not available, it’s admittable as a dying declaration, even though Bob is not actually dead? ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [June 9, 2016, 3:12pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/9 "2016-06-09T15:12:08Z")
> [@Zeke\_N.Destroi](#): > > Is there no limitation on duration after the event before the accused can’t be charged with murder? Could, theoretically, someone linger on life support for a decade or more before dying and still have the accused charged with murder? \<---- hijack over James Brady, Reagan’s press secretary - [James Brady - Wikipedia](https://en.wikipedia.org/wiki/James_Brady) > [@](#): > > Brady died in Alexandria, Virginia, at the age of 73. His family announced his death on August 4, 2014. On August 8, 2014, in a controversial decision due to the length of time involved, his death was ruled a homicide caused by the gunshot wound he received in 1981, approximately 33 years after the fact. Hinckley did not face charges as a result of Brady’s death due to having been found not guilty of the original crime by reason of insanity. ---
**Author:** ![Zeke\_N.Destroi](https://avatars.discourse-cdn.com/v4/letter/z/4af34b/32.png) [@Zeke\_N.Destroi](https://boards.straightdope.com/u/Zeke_N.Destroi)\ **Post date:** [June 9, 2016, 4:09pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/10 "2016-06-09T16:09:22Z")
Question answered - thank-you. And WOW!!! ---
**Author:** ![Just\_Asking\_Questions](https://avatars.discourse-cdn.com/v4/letter/j/ba9def/32.png) [@Just\_Asking\_Questions](https://boards.straightdope.com/u/Just_Asking_Questions)\ **Post date:** [June 9, 2016, 5:00pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/11 "2016-06-09T17:00:17Z")
> [@t-bonham@scc.net](#): > > But if the victim is in a medically terminal condition and expected to die soon, the prosecutor may decide to wait until the victim dies, so he can accurately charge the suspect with the more severe crime, with the heavier sentence. If he had been charged & convicted of something like ‘assault’ 2 years ago, I don’t believe they could then charge him with murder when the victim died (‘double jeopardy’). I am not a lawyer, but I did watch Law and Order last night. 🙂 [The episode](http://www.imdb.com/title/tt1343623/?ref_=ttep_ep18) involve a case of three defendants being charged with attempted murder. They beat a man so severely he was in a coma, likely forever, but not dying. The defendants were convicted of the lesser included offense of assault. After the trial, the guardian of the victim signed a DNR order and withdrew life support. The victim died, and McCoy filed charges of murder against the defendants at the end. Is this proper? Possible? Factual? ---
**Author:** ![Typo\_Negative](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/typo_negative/32/484_2.png) [@Typo\_Negative](https://boards.straightdope.com/u/Typo_Negative)\ **Post date:** [June 9, 2016, 6:11pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/12 "2016-06-09T18:11:28Z")
> [@Bricker](#): > > Immediately prior to the presentation oif the photo array, the attending nurse asked Pate a series of questions designed to verify his awareness and understanding. Then I assume \* that the defense lawyers had an opportunity to depose him? And if they did, would that also be admissible at trial? (is depose the right term in a criminal proceeding?) > [@](#): > > **[t-bonham@scc.net](mailto:t-bonham@scc.net)** > Because the victim wasn’t dead yet. > They couldn’t have tried the criminal for murder if the victim is still alive – they have to wait until he dies. (And, of course, the death has to be the direct result of the actions of the criminal.) If they can prove he was the shooter in the robbery, seems like they would want to go head and prosecute. Seems like convicting him of that would be easier (assuming they have enough evidence). Once the victim dies, they could try him for murder. Seems like THAT would easier, since he was already convicted of the robbery and assault. I found another link that says there were years of legal wrangling, with defense trying to keep the ID out. \*\*\*\*\*\*\* because I have not seen a good link for the actual evidence at trial, only the ‘eye blink’ controversy. I think it would terrible to have a conviction based _solely_ on eye-witness ID. Under the best of circumstances, eye-witness testimony can be…less than accurate. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 10, 2016, 2:48am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/13 "2016-06-10T02:48:21Z")
> [@Typo\_Negative](#): > > Then I assume \* that the defense lawyers had an opportunity to depose him? And if they did, would that also be admissible at trial? (is depose the right term in a criminal proceeding?) I’m not aware of any effort made by the defense to depose him. But if you’re asking if they had deposed him, would the resulting testimony be admissible? Probably. A deposition is not the same thing as a dying declaration. A deposition is sworn testimony taken outside court that can cover a wide range of subjects; the dying declaration is limited to the circumstances surrounding the cause of injuries that placed the declarant near death. Both a deposition and the dying declaration’s introduction at trial is hearsay, but usually allowed as a recognized exception to the hearsay rule if the declarant is unavailable. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [June 10, 2016, 3:36am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/14 "2016-06-10T03:36:44Z")
> [@Just\_Asking\_Questions](#): > > I am not a lawyer, but I did watch Law and Order last night. 🙂 > > [The episode](http://www.imdb.com/title/tt1343623/?ref_=ttep_ep18) involve a case of three defendants being charged with attempted murder. They beat a man so severely he was in a coma, likely forever, but not dying. The defendants were convicted of the lesser included offense of assault. > > After the trial, the guardian of the victim signed a DNR order and withdrew life support. The victim died, and McCoy filed charges of murder against the defendants at the end. > > Is this proper? Possible? Factual? I think the relevant legal concepts are [Breaking the chain of causation](https://en.wikipedia.org/wiki/Breaking_the_chain) and [You take your victim as you find him](https://en.wikipedia.org/wiki/Eggshell_skull). Of close relevance is a famous British case [Regina v Blaue](https://en.wikipedia.org/wiki/R_v_Blaue). A man stabbed a young woman, a Jehovah’s witness. She would have recovered had she not refused blood transfusion on religious grounds. She died, and he was convicted of manslaughter (and I believe the reduction in charge from murder was for other reasons). I have no idea about differences between UK and NY law, but if they are similar I think McCoy has a good chance of getting a conviction. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [June 10, 2016, 7:36am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/15 "2016-06-10T07:36:17Z")
> [@yellowjacketcoder](#): > > I’m not a lawyer, but consider the following scenario. > > Bob is rushed to the hospital with a stab would, where doctors don’t expect him to make it. He’s videotaped saying “Al did this. Al stabbed me”. 10 hours of surgery later, Bob has a much better prognosis. In fact, he recovers completely and becomes a marathon runner (i.e., very much not dead). In fact, he is so into marathon running he begins a campaign to run a marathon in every country. Unfortunately, one of the countries he tries to run in as a government with a dim view of rights of the accused, and Bob is thrown in jail in some backwater dictatorship over a misunderstanding. > > Later Steve the prosecutor decides to prosecute Al for stabbing Bob. Steve presents the videotape as a dying declaration. Al (or rather Al’s lawyer) counters that as Bob isn’t even dead, this shouldn’t count, and as he has a right to cross-examine the witness. The fact that the witness can’t be cross-examined because he’s in jail in Backwateristan is the prosecution’s problem. > > Is the court’s position that because the declaration was made while Bob thought he was about to die, and Bob is not available, it’s admittable as a dying declaration, even though Bob is not actually dead? In general, one of the conditions precedent for the application of the dying declaration rule is the that witness must be dead. In custody doesn’t cut it. The rule was invented as a way around an absurd consequence of the hearsay rule, but the absurdity does not arise if the witness/victim is still alive. The necessary state of mind of the witness is described in various ways, but one way that captures the flavour of it is that the witness must have a “settled, hopeless expectation of death”. This is conceptually a hallmark of reliability justifying the relaxation of the hearsay rule in such cases - no-one wants to die with a lie on their lips, so it is thought. Of course it is possible to have such a state of mind and yet, unlikely though it might be, luck into a recovery. But in those circumstances, the dying declaration rule would be meaningless. The witness could come to court in the ordinary way. The example you are talking about is one of a witness who is simply unavailable. Some jurisdictions have work-arounds for that, others don’t. But the dying declaration rule is not generally one of them. ---
**Author:** ![yellowjacketcoder](https://avatars.discourse-cdn.com/v4/letter/y/4bbf92/32.png) [@yellowjacketcoder](https://boards.straightdope.com/u/yellowjacketcoder)\ **Post date:** [June 10, 2016, 1:54pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/16 "2016-06-10T13:54:16Z")
> [@Noel\_Prosequi](#): > > In general, one of the conditions precedent for the application of the dying declaration rule is the that witness must be dead. In custody doesn’t cut it. The rule was invented as a way around an absurd consequence of the hearsay rule, but the absurdity does not arise if the witness/victim is still alive. > > The necessary state of mind of the witness is described in various ways, but one way that captures the flavour of it is that the witness must have a “settled, hopeless expectation of death”. This is conceptually a hallmark of reliability justifying the relaxation of the hearsay rule in such cases - no-one wants to die with a lie on their lips, so it is thought. > > Of course it is possible to have such a state of mind and yet, unlikely though it might be, luck into a recovery. But in those circumstances, the dying declaration rule would be meaningless. The witness could come to court in the ordinary way. > > The example you are talking about is one of a witness who is simply unavailable. Some jurisdictions have work-arounds for that, others don’t. But the dying declaration rule is not generally one of them. Thanks for the explanation. How much of a difference would it make if the declarant were in a coma due to their injuries - unavailable but not dead? ---
**Author:** ![Bill\_Door](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@Bill\_Door](https://boards.straightdope.com/u/Bill_Door)\ **Post date:** [June 10, 2016, 6:46pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/17 "2016-06-10T18:46:05Z")
You have to be careful about context. Suppose you ask Dave “Did Bob shoot you? Blink once for yes, twice for no.” Blink…Blink. The transcript reads “Did Bob shoot you? Blink once for yes, twice for no.” Dave: Yes…Yes. Double guilty. I saw it happen on a documentary once. ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [June 10, 2016, 10:11pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/18 "2016-06-10T22:11:30Z")
> [@Pantastic](#): > > It takes some brass balls to argue that a murder case should be thrown out because you can’t cross-examine the victim that you killed. Why do you assume he was the killer? He hasn’t been convicted yet. ---
**Author:** ![Riemann](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/riemann/32/3133_2.png) [@Riemann](https://boards.straightdope.com/u/Riemann)\ **Post date:** [June 10, 2016, 10:23pm UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/19 "2016-06-10T22:23:42Z")
> [@robert\_columbia](#): > > Why do you assume he was the killer? He hasn’t been convicted yet. The presumption of innocence is a legal right to due process. It does not control our ability to form reasonable provisional opinions about the probable state of affairs when reliable information about a case is available. For example, O.J. Simpson had a right to a fair trial, with the burden of proof upon the prosecution; but it’s ridiculous to claim that it was unreasonable to think that he was guilty. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 11, 2016, 12:23am UTC](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865/20 "2016-06-11T00:23:39Z")
> [@Bricker](#): > > … > When the statement was taken, with video cameras capturing his blinks in answer to questions, it was an easy inference for him to make that this procedure was being done because he was not expected to survive. > … > > Yes, I believe this qualifies as a dying declaration. Doesn’t the portion of your comment that I snipped make this statement testimonial in nature and subject to the confrontation clause according to _Crawford_? I know that dying declarations are generally not considered testimonial because they are generally not given for a law enforcement purpose. This one seems to be the exception. [Next page](https://boards.straightdope.com/t/eye-blink-id-dying-declaration-conviction/756865.md?page=2)