The question of whether a dead man’s blinks can be used as testimony in a murder trial could go before Maryland’s highest court.

The attorney for a man charged with first-degree murder in Prince George’s County filed a petition this month asking that the Maryland Court of Appeals overturn a lower court decision that would allow jurors to watch video of a man blinking to identify his suspected killer.

In May, Judge Charles E. Moylan Jr. overturned a county circuit court ruling that initially banned the testimony. Critics say allowing the video would violate defendant Jermaine Hailes’s Sixth Amendment right to face his accuser through cross-examination. But Moylan, writing an opinion for the Maryland Court of Special Appeals, said video of Melvin Nathaniel Pate blinking at a photo lineup should be considered a “dying declaration” and an exception to the rule.

In 2010, Pate was rendered paralyzed after being shot in the face during what police say was a robbery. Unable to speak and told that he had days to live, state prosecutors say Pate blinked at a photo of Hailes to indicate the man who shot him. Pate survived for two more years before dying in 2012.

The petition from Hailes’s attorney requesting a review of Moylan’s opinion gives a few reasons for the appeal:

• Pate’s statement does not constitute a dying declaration.

Some believe that dying declarations should be exempt from the confrontation clause of the Sixth Amendment because it’s believed that people are less likely to lie during their last moments of life. But Pate survived two years after the shooting. A “mere belief of impending death is not sufficient to constitute the statement of a dying declaration,” wrote Hailes’s attorney, quoting a different court case.

• The Sixth Amendment gives Hailes the right to cross-examine his accuser.

“What was Mr. Pate’s opportunity to view Mr. Hailes at the time of the alleged offense? How good was Mr. Pate’s memory of the incident? . . . Only through cross-examination could these and other similar questions be answered.”

After state prosecutors respond to the request for an appeal, the court will decide whether or not to hear the case.

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