In a tragic, yet very interesting case Maryland prosecutors seek to introduce video of a gunshot wound victim allegedly identifying his assailant by blinking shortly before he passed away. Five days after the victim received a gun shot wound to his face, investigators came to his hospital room and presented him with a photo lineup of six people. They then instructed him to “blink hard,” for yes if any individual shown was in fact the shooter. It is alleged that the video shows the victim clearly identifying the accused as his shooter.
Given this unique set of circumstances, the trial judge has taken the matter under advisement. It seems clear that he knows how damaging the evidence will be if were to be shown to the jury.
From a defense point of view, the video raises many concerns. First, given the victim’s condition, there is a possibility that the “blink” was an involuntary action and not truly intended by the victim to identify the accused. There is also the possibility that the victim simply wished to wrongfully convict the accused because of inherent bias against that person.
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