Video of a paralyzed man identifying his alleged shooter by blinking at a photo lineup can be shown to jurors in a Prince George’s County murder trial, according to an opinion issued this week by Maryland’s second highest court.

The state Court of Special Appeals overturned an earlier ruling by Judge Leo E. Green Jr., who in November said allowing video of Melvin Nathaniel Pate blinking to identify the man who shot him would have violated the defendant’s Sixth Amendment right to face his accuser.

But in a 62-page opinion written by Judge Charles E. Moylan Jr., the appellate court concluded that Pate’s blinks should be considered a “dying declaration” and exempt from the confrontation clause outlined in the U.S. Constitution.

Jermaine Hailes, 23, has been charged with first-degree murder in the death of Pate, who died two years after he was shot during a 2010 drug robbery. The case has been complicated by legal questions over whether the video of Pate blinking at a photo of Hailes can be admitted as evidence. Pate was shown the photo lineup at his hospital bed in 2010, after doctors told the family he was not expected to survive.

Green had ruled Pate’s blink was a dying declaration, but he didn’t think it was an exception to the Sixth Amendment.

The appellate court disagreed, saying the dying declaration exception is deeply rooted in legal history, dating back not just to the creation of the Bill of Rights in the 1700s, but also to English common law. It was thought that the words of a man on his death bed should be believed as he’d have no motivation to lie.

“For the Dying Declaration exception, the declarant’s hearing of the fluttering of the wings of the dark angel was the self-sufficient guarantee of the declarant’s reliability,” Moylan wrote. “That is all the reliability that is required. Additional circumstances may be considered at trial, but they go to weight and not to threshold admissibility.”

Moylan’s assessment is what prosecutors have contended all along, said John Erzen, a spokesman for the Prince George’s County State’s Attorney’s Office.

“Certainly we’re pleased with the court’s decision,” Erzen said. “We feel that they are making the correct decision based on our interpretation of a dying declaration.”

Brian Zavin, the assistant public defender who represents Hailes, said he had no comment on the decision. He said the defense has not yet decided whether to appeal.

If the video were allowed, Maryland prosecutors think it would be only the fourth time in the United States and the first time in Maryland that such blink testimony would be considered as evidence in a murder trial.

The shooting occurred in November 2010 during a would-be drug sale, court records indicate. Pate had planned to sell a half-pound of marijuana to Hailes and his associates, authorities said, but the men robbed Pate instead. During the robbery in Capitol Heights, shots were fired and a bullet struck Pate’s face and traveled to his spine.

Doctors told Pate he had only days to live before he looked at photos for Prince George’s detectives. From his hospital bed, with tubes attached to his body and a device restraining his head, investigators flashed photos at Pate and asked him to “blink hard once for yes” to indicate who shot him.

Pate died in 2012.

Depending on how Hailes’s case moves forward, two legal issues could remain controversial surrounding Pate’s blinks, said Georgetown University law professor Paul Rothstein. He said the defense may continue to dispute whether the blinks truly are a dying declaration because of the time that passed between the lineup and Pate’s death.

In its ruling, the court noted the time lapse was unusual, but said “it does not as a legal matter, disqualify or compromise the admissibility of the Dying Declaration in any way.”

The second controversy, Rothstein said, could be whether a dying declaration is truly an exception to the Sixth Amendment. He pointed to the 2004 U.S. Supreme Court case of Crawford vs. Washington, in which justices made it harder for prosecutors to introduce statements by witnesses unavailable for cross-examination.

Although the case did not deal directly with dying declarations, an opinion from Justice Antonin Scalia noted that they have been historically considered exceptions in both English and American common law. That mention by the high court, Rothstein said, could open the door for further appeal in the Hailes case.

Hailes’s trial is on hold until the video-blink issue is resolved. If Hailes’s attorneys appeal, the case will go to the Maryland Court of Appeals.

“We’re going to move forward as if we’re going to trial,” Erzen said.8