EvidenceProf Blog

Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration

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 hard3 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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Communication Breakdown: Supreme Court of Mississippi Reverses Murder Conviction Based on Character Evidence Error

Similar to its federal counterpart, Mississippi Rule of Evidence 404(a)(2)(B) allows for the admission of

Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor

That said, similar to its federal counterpart, Mississippi Rule of Evidence 404(a)(2)(B)

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In other words, while a criminal defendant can present evidence of the alleged victim's bad character for violence, he generally can only prove that character on direct examination through opinion and reputation testimony. But what if the defendant has awareness of the alleged victim's prior bad acts? Let's take a look at the opinion of the Supreme Court of Mississippi in Richardson v. State, 2014 WL 2894439 (Miss. 2014).

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