Trial hinges on dying man’s blink to identify gunman

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Prosecutors said they could use one photo because they contend Chandler knew the suspect and the identification came quickly after the crime.

"The bottom line is that the judge allowed it into evidence," Wilson said.

Victims’ dying declarations based on nonverbal identifications have been used in other murder cases.

In Oklahoma City, a man was convicted in 1985 of first-degree murder and arson in the burning death of his wife, who could not speak due to her injuries and survived only two days. But she was able to nod to identify her husband as the person who poured gasoline on her and set her on fire.

In Boynton Beach, Fla., two men were convicted of first-degree murder and attempted robbery in the 2007 shooting of a man who was left paralyzed and unable to speak before he died. But he was able to identify both defendants by blinking his eyes when shown photo lineups.

Assistant State Attorney Andrew Slater in Florida’s Palm Beach County said he was careful to show the court that the family also had communicated with the victim through blinks and detail the steps police took to establish them as legitimate responses.

"I think I was able to show he knew what he was doing, and that is what gave the identification procedure reliability," Slater said, adding that videotape of such blinks "should be even better" for establishing reliability.

Blinks that look decisive and defined would help prosecutors, while the defense would benefit if they appear random or involuntary, said Harvard Law School professor Ronald S. Sullivan.

Sullivan said dying declarations in general can be powerful testimony, "because the imagery is that of someone speaking from the grave."

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